U.K. CORPORATE EDITION TERMS AND CONDITIONS
These Corporate Edition Terms and Conditions (“Corporate Edition Terms”) are incorporated by reference into the Order Form signed by DocuSign, Inc. a Washington corporation, with offices at 1301 2nd Ave., Suite 2000, Seattle, WA 98101 (“DocuSign”) and the customer identified in the Order Form (“Customer”). The Order Form and these Corporate Edition Terms together shall be referred to as the “Agreement.”
“Account” means a unique account established by the Customer in order to gain access for its Authorized Users to the Hosted Services and, where applicable, other DocuSign Products.
“Authorized User” means an individual employee or third party agent of Customer, as identified by a unique email address and user name, who is registered as a member of Customer's Account. No two persons may register, access or use the Hosted Services as the same Authorized User.
“Consulting Services” means those additional DocuSign services, including training, consulting, and custom development, if any, that are made the subject of an Order Form or Work Order as described in Section 16.
“Customer Data” means Personal Data, Transaction Data and all other data and information concerning Customer or Customer’s personnel or business clients: (a) provided by or on behalf of Customer to DocuSign; or (b) obtained by DocuSign based on the use or Processing of data or information provided by or on behalf of Customer to DocuSign.
“Depositing Party” refers to an Authorized User that deposits a document into the System for Processing under the Hosted Services.
“DocuSign API” means DocuSign’s application programming interface that supports interoperation of applications with the Hosted Services.
“DocuSign Products” means the products and services identified on an Order Form, including, but not limited to, the Hosted Services and, where applicable, Consulting Services.
"DPA" the United Kingdom's Data Protection Act 1998 including any variation or addition to such act implemented from time to time.
“eContract” refers to a contract, notice, disclosure, or other record or document deposited into the System by a Depositing Party for Processing under the Hosted Services.
“Envelope” means an electronic record containing one or more eContracts consisting of a single page or a group of pages of data uploaded to the System.
“Hosted Services” means DocuSign’s on-demand electronic signature service, as updated from time to time, which provides on-line display, certified delivery, acknowledgement, electronic signature, and storage services for eContracts via the Internet as set forth in the Specifications.
“Order Form” means a standard DocuSign order form or any other document separately and specifically approved by DocuSign in its discretion that describes DocuSign Products to be purchased by Customer, and that is signed by both DocuSign and the Customer.
“Order Start Date” means the date set out in the Order Form from when DocuSign will provide to Customer the Products described in the Order Form.
“Personal Data” has the meaning set out in section 1(1) of the DPA.
“Process” and similar terms mean to perform any operation or set of operations upon Customer Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, accessing, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
“Specifications” means the specifications of the Hosted Services as made available at http://docusign.com/support/specifications.php.
“System” refers to the software systems and programs, communication and network facilities, and hardware and equipment used by DocuSign or its agents to provide the Hosted Services.
“Term” means the period of effectiveness of this Agreement, as specified in Section 10 below.
“Transaction Data” means data associated with an eContract, including transaction history, eContract image hash value, information concerning method and time of eContract purge, and sender and recipient names, email addresses and signature IDs.
2. HOSTED SERVICES
2.1 DocuSign will provide the Hosted Services in accordance with the Specifications.
2.2 From the Order Start Date defined in the Order Form, Customer may obtain an Account and register Authorized Users, and subject to these Corporate Edition Terms, such Authorized Users may log onto and use the Hosted Services in accordance with the Specifications. Customer’s right to use the Hosted Services is limited to its Authorized Users, and Customer agrees not to resell or otherwise provide or assist with the provision of the Hosted Services to any other third party. Customer’s and its Authorized Users’ use of the Hosted Services is subject to Customer’s acknowledgement and agreement that:
a) Nothing in this Agreement will be construed to make DocuSign a party to any eContract, and DocuSign makes no representation or warranty regarding the transactions sought to be effected by any eContract;
b) DocuSign maintains no control or access to the contents of any eContract, and the content, quality, and format of any eContract is completely within the exclusive control of the Depositing Party and is the responsibility of Customer;
c) The Hosted Services may provide options, if Customer elects to purchase such options, designed to verify the identity of the intended recipient of an eContract deposited into the System (“Authentication Measures”), and DocuSign: (i) will apply only those Authentication Measures (if any) selected by the Depositing Party; (ii) makes no representations or warranties regarding the appropriateness of such Authentication Measures; and (iii) assumes no liability or responsibility for a party’s inability or failure to satisfy any particular Authentication Measure or for any circumvention of such Authentication Measures effected by any third party;
d) Certain types of agreements and documents are excepted from electronic signature laws, such that they cannot be legally formed by electronic signatures; additionally, various agencies or regulators may have promulgated specific regulations that apply to electronic signatures and electronic records, and DocuSign assumes no responsibility to determine whether any particular eContract is an exception to applicable electronic signature laws or whether it is subject to any particular agency or regulator promulgations and whether it can be legally formed by electronic signatures;
e) Customer is solely responsible for making available to third parties (including parties to its eContracts) all contracts, documents, and other records required by applicable law, including, without limitation, electronic signature laws and other laws that may require records relating to a transaction to be retained or made accessible for a certain period of time; and
f) Certain laws or regulations may impose special requirements with respect to electronic transactions involving one or more “consumers.” These may include, among other things, 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 assumes no responsibility to determine whether any particular transaction involves a consumer, nor does DocuSign have any responsibility: (i) to furnish or obtain any such consents or to determine if any such consents have been withdrawn; (ii) to provide any information or disclosures in connection with any attempt to obtain any such consents; (iii) to provide legal review of, or to update or correct any information or disclosures currently or previously given; (iv) to provide any such copies or access except as expressly provided in the Specifications for all transactions, consumer or otherwise; or (v) otherwise to comply with any such special requirements. Customer expressly undertakes to determine whether any consumer is involved in any eContract presented by Customer or its Authorized Users for Processing, and, if so, to comply with all requirements imposed by law on such eContracts or their formation.
- 3. SUBSCRIPTION PLANS AND PER USE PURCHASES
The price, features, and options of the DocuSign Products available for an Account depend on the level of service, features, and promotions selected by Customer. Hosted Services are sold on a subscription basis and may be limited by usage (“Envelope Allowance”) or the number of Authorized Users (“Seats”), or both. Some optional services, such as ID check, may be purchased on a periodic or per-use basis.
4. USAGE AND SEATS
4.1 DocuSign Subscription based on Envelope Allowance allows Customer to send the number of Envelopes in the Envelope Allowance specified in the Order Form during the Term. All Envelopes sent in excess of the Envelope Allowance will incur a per-Envelope charge that will be invoiced within 30 days of the date first incurred. The total number of Envelopes sent is calculated by the sum of all Envelopes that have been sent for signature or certified delivery. Envelopes may be sent to any number of recipients who may sign in any number of places within the contents of the sent Envelope. Customer’s Account will be deemed to have consumed an Envelope at the time the Envelope is sent by Customer, regardless of whether Envelopes were received by recipients, or whether recipients have performed any actions upon any eContract in the Envelope.
4.2 DocuSign Subscription based on Seats allows Customer to send a reasonable number of Envelopes from the number of Seats specified in the Order Form during the Term. If DocuSign suspects that the number of Envelopes sent from a particular Seat or a group of Seats is abusive and/or unduly burdensome (by way of example, processing automated batch operations), DocuSign will promptly notify Customer, discuss the use-case scenario with Customer and any continued monitoring, additional discussions and/or information required to make a final determination on the course of action based on such information. The number of Seats is determined by the total number of active Authorized Users listed in the membership of an Account at any one time. No two individuals may log onto or use the Hosted Services as the same Authorized User, but Customer may unregister or deactivate Authorized Users and replace them with other Authorized Users without penalty, so long as the number of active Authorized Users registered at any one time is equal to or less than the number of Seats purchased. The addition by Customer of more Authorized Users than the number of Seats purchased in an Order Form will result in an additional charge for one Seat per additional Authorized User for the remainder of the Term, to be invoiced immediately. A DocuSign Subscription based on Seats explicitly excludes use of the DocuSign API for sending Envelopes.
4.3 Per use charges are specific to the number of units of the DocuSign Product(s) used during the period, and are measured at the time of use.
5. ADDITIONAL CUSTOMER RESPONSIBILITIES
5.1 Customer agrees that it will not use or permit the use of the Hosted Services to send unsolicited mass mailings outside its organization, it being understood that the term “unsolicited mass mailings” includes all statutory and other common definitions, including all 'commercial communications' as defined in the E-commerce Regulations 2003 and 'communications' and 'electronic mail' as defined in the Privacy and Electronic Communications (EC Directive) Regulations 2003 in the United Kingdom or any unsolicited commercial electronic marketing messages prohibited or regulated by the U.S. CAN SPAM Act or any analogous regulation worldwide.
5.2 Customer agrees that it is solely responsible for the nature and content of all materials, works, data, statements, and other visual, graphical, video, written or audible communications of any nature submitted by any Authorized User or otherwise Processed through Customer’s Account.
5.3 Customer further agrees not to use or permit the use of the Hosted Services: (a) to communicate any message or material that is defamatory, harassing, libelous, threatening, or obscene; (b) in a way that violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity or that may otherwise be unlawful or give rise to civil or criminal liability (other than contractual liability of the parties under eContracts Processed through the Hosted Services); (c) in any manner that is likely to damage, disable, overburden, or impair the System or the Hosted Services or interfere in any way with the use or enjoyment of the Hosted Services by others; or (d) in any way that constitutes or encourages conduct that could constitute a criminal offence. Although DocuSign does not actively monitor the content processed through the Hosted Services, DocuSign may at any time and without prior notice suspend any use of the Hosted Services and/or remove or disable any content as to which DocuSign is made aware of a reason for concern as to such use or content. DocuSign agrees to exert reasonable commercial efforts to provide Customer with notice of any such suspension or disablement before its implementation, or promptly thereafter.
6. CUSTOMER DATA
6.1 The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
6.2 DocuSign shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by DocuSign to perform services related to Customer Data maintenance and back-up).
6.4 If DocuSign processes any Personal Data on the Customer’s behalf when performing its obligations under this Agreement, the parties record their intention that the Customer shall be the data controller and DocuSign shall be a data processor (as defined in the DPA) and in any such case:
a) the Customer acknowledges and agrees that the Personal Data may be transferred or stored outside the EEA or the country where the Customer and the Authorized Users are located in order to provide DocuSign's Products. The Customer consents for DocuSign to receive, share and transfer Personal Data arising from use of the DocuSign Products and/or Hosted Services with telecommunications or other providers used in conjunction with the DocuSign Products and/or Hosted Services. DocuSign subscribes to the Safe Harbor principles as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of Personal Data from within the European Union;
b) the Customer shall ensure that the Customer is entitled to transfer the relevant Personal Data to DocuSign so that DocuSign may lawfully use, process and transfer the Personal Data in accordance with this Agreement on the Customer's behalf;
c) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required under the DPA;
d) DocuSign shall process the Personal Data only in accordance with this Agreement and any lawful instructions reasonably given by the Customer from time to time; and
e) each party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the Personal Data or its accidental loss, destruction or damage.
7. INTELLECTUAL PROPERTY AND TRADEMARK LICENSE
a) DocuSign is the owner of various intellectual property and technology rights associated with the Hosted Services, its document management, digital signature, and notary system, including patent, copyright, trade secret, design right, database right trademark and service mark rights ("DocuSign Intellectual Property Rights"). Except for the rights expressly granted in this Agreement, DocuSign does not licence or transfer to Customer or any Authorized User or other third party any of the DocuSign Intellectual Property Rights. All right, title and interest in and to the DocuSign Intellectual Property Rights will remain solely with DocuSign. Customer agrees that, save to the extent permitted by law, it will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from or about any of the DocuSign Products or DocuSign’s technology. DocuSign agrees that data and information provided by Customer under this Agreement shall remain, as between Customer and DocuSign, owned by Customer.
b) DocuSign hereby grants to users and licensees of its products and services a limited, revocable, nonexclusive and nontransferable right to use DocuSign’s regular trade names, trademarks, titles and logos (“Licensed Marks”) solely for purposes of identifying DocuSign’s products and services. Details of this trademark license are available at: http://www.docusign.com/trademark-license.
c) Customer recognizes and acknowledges DocuSign’s exclusive ownership and title to the Licensed Marks and the goodwill related thereto and agrees that any goodwill that accrues because of the use of the DocuSign Products by Customer shall become the property of DocuSign. Customer further agrees not to contest or take any action in opposition to any DocuSign Intellectual Property Right or the Licensed Marks or to use, employ or attempt to register any intellectual property right that is the same as or similar to any DocuSign Intellectual Property Rights or the Licensed Marks.
7. CUSTOMER SUPPORT
DocuSign will provide customer support to Customer in accordance with the customer support package that is identified on the Order Form, and that is further detailed on DocuSign’s website at http://www.docusign.com/products/editions.
8.1 General eContract Storage and Deletion Policy. Unless otherwise directed by Customer, DocuSign will store all completed eContracts sent by Customer until the Term expires. Copies of stored eContracts may be retrieved by Customer at any time during the Term. All copies of eContracts may be deleted and purged by DocuSign without prior notice after the Term expires or is terminated unless Customer elects to purchase post-Term transition services (in accordance with clause 10.4) or storage services for their completed eContracts. Where Customer elects to purchase such post-Term transition or storage services, all copies of eContracts may be deleted and purged by DocuSign without prior notice after the expiry or termination of those services. After expiration or termination of the Term, Customer may request DocuSign’s assistance in retrieving completed eContracts still remaining on the System pursuant to the transition services terms described in Section 10.4. Customer may, at its option and wholly at Customer’s risk, direct that any eContract be deleted or purged at a time stated by Customer and prior to the end of the Term and/or the expiry or termination of any post-Term transition or storage services.
8.2 Uncompleted eContracts. DocuSign may at its sole discretion delete an uncompleted eContract from the System immediately and without notice upon 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.
8.3 Notwithstanding anything in this Agreement to the contrary, Transaction Data associated with deleted eContracts will be retained by DocuSign permanently, and it will be maintained per the confidentiality obligations of this Agreement.
9. FEES AND PAYMENT TERMS
9.1 Customer will pay DocuSign the amounts set forth in each Order Form. An Order Form is not binding until it is executed by both DocuSign and Customer, at which point it will be deemed to be incorporated into this Agreement. Unless otherwise specified in an applicable Order Form, the first invoice will be submitted to Customer within 30 days after the Order Start Date and on a monthly basis thereafter, and Customer will pay all amounts due within 30 days of the date of the applicable invoice.
9.2 In the event that Customer’s usage under an Envelope Allowance Subscription exceeds the Envelope Allowance prior to the end of the Term, the unpaid balance of the Order Form for Hosted Services shall become immediately due and payable.
9.3 Any undisputed 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, whether before or after judgement. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by DocuSign to collect any undisputed amount that is not paid when due. DocuSign may accept any check or 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 under this Agreement may not be withheld or offset by Customer for any reason against amounts due or asserted to be due to Customer from DocuSign. All amounts payable under this Agreement are denominated in United States dollars, and Customer will pay all such amounts in United States dollars, unless otherwise agreed by the parties.
9.4 Taxes. Other than federal and state net income taxes imposed on DocuSign by the United States, Customer will bear all taxes, duties, and other governmental charges including for the avoidance of doubt any and all value added tax (collectively, “taxes”) resulting from this Agreement or transactions conducted in relation to this Agreement or the DocuSign Products. If a tax is imposed on DocuSign by a jurisdiction outside the United States, Customer will not be obligated to bear that tax to the extent: (a) the tax is allowable as a credit against the United States federal income taxes of DocuSign; (b) Customer reduces such tax to the extent possible, giving effect to the applicable Income Tax Convention between the United States and other jurisdictions; and (c) Customer furnishes DocuSign with such evidence as the United States taxing authorities may require to claim the credit. Customer will pay any additional taxes as are necessary to ensure that the net amounts received and retained by DocuSign after all such taxes are paid are equal to the amounts that DocuSign would have been entitled to in accordance with this Agreement as if the taxes did not exist.
10. TERM AND TERMINATION
10.1 Term. Unless sooner terminated as stated below, and subject to Section 18 with respect to Work Orders (as defined below), the effectiveness of this Agreement will commence upon the Order Start Date and will continue for the term specified on the Order Form (the “Term”). If no term is specified in the Order Form, the Term shall be 12 months from the Order Start Date. If no Order Start Date is specified in the Order Form, the date the Order Form was executed by both parties shall be the Order Start Date.
10.2 Termination for Material Breach. If either party commits a material breach or default not capable of remedy in the performance of any of its obligations under this Agreement, then the other party may terminate this Agreement by giving the defaulting party written notice of termination, however, where such material breach or default is capable of remedy the other party may terminate this Agreement by giving the defaulting party written notice of termination only if the material breach or default in performance is not cured within 30 days after the defaulting party receives notice thereof. Without limiting the foregoing, any failure by Customer to timely pay to DocuSign any amounts owing under this Agreement will constitute a material breach of this Agreement. If Customer fails to timely pay any amounts due for services to be performed by DocuSign, DocuSign may, without limitation to any of its other rights or remedies, suspend performance of such services until it receives all amounts due.
10.3 Post-Termination Obligations. If this Agreement expires or is terminated for any reason: (a) Customer will pay to DocuSign any amounts required to be paid under this Agreement that have accrued prior to, and remain unpaid as of, the date of termination or expiration (including Subscription fees, which become due upon termination of this Agreement as set forth in an Order Form, and any one-time or recurring fees through the end of the billing cycle in which termination occurs); (b) any and all liabilities accrued prior to the effective date of the termination will survive; (c) Customer will destroy all copies of DocuSign software, documentation, and materials within five business days of such termination, and immediately thereafter, if requested by DocuSign, provide DocuSign with a written certification signed by an authorized Customer representative certifying that all copies of software, documentation, and materials have been destroyed; (d) licenses to use DocuSign software and the provision of DocuSign services will immediately end; and (e) the parties’ rights and obligations under Sections 1, 6, 8.1, 9, 10.3, 10.4, 11.3, 12, 13, 14, and 15 will survive.
10.4 Transition Services. Upon expiration or termination of this Agreement for any reason, at Customer’s request and at DocuSign’s then-current standard professional services rates plus expenses, DocuSign shall provide reasonable transition services for a period not to exceed 90 days to assist Customer in moving the Customer’s data to another provider or exporting eContracts to external media. As part of such transition services, DocuSign shall at a minimum transfer, and cause any of its independent contractors to transfer, all data and electronic files associated with the Hosted Services. At DocuSign’s then-current standard professional services rates, DocuSign shall at Customer’s request further cooperate with Customer in the development of a transition plan and shall use reasonable efforts to assist Customer and/or another service provider in the transition. DocuSign may at its discretion require advance payment or other adequate security for payment as DocuSign may consider appropriate in connection with or as a condition to the provision of services described in this section.
11. WARRANTIES AND DISCLAIMER
11.1 DocuSign Warranties. DocuSign represents and warrants that: (a) the Hosted Services, as delivered to Customer and used in accordance with the Specifications, will not infringe on any United States patent, copyright or trade secret enforceable in the United States; (b) the Hosted Services shall be performed in accordance with the Specifications in their then-current form at the time of the provision of such Hosted Services; (c) any DocuSign Products that are software shall be free of all known (based upon best practice screening techniques deployed by DocuSign) harmful or illicit code, trapdoors, viruses, or other harmful features; (d) the proper use in accordance with the Specifications of the Hosted Services as unmodified by Customer in the formation of an eContract will be sufficient under the Electronic Communications Act 2000 (c. 7) (the “ECA”) to meet the definition of “Electronic Signature” to the extent provided in the ECA; (e) the proper use of the Hosted Services as unmodified by Customer in the formation of an eContract not involving any consumer will be sufficient under the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. §§ 7001 et seq. (the “ESIGN Act”) to support the validity of such formation, to the extent provided in the ESIGN Act; (f) the proper use of the Hosted Services as unmodified by Customer in the formation of an eContract involving a consumer will be sufficient under the ESIGN Act to support the validity of such formation, to the extent provided in the ESIGN Act, so long as and provided that Customer complies with all special requirements for consumer eContracts, including and subject to those referenced in Section 2.2(f) above; and (g) DocuSign has implemented information security policies and safeguards to preserve the security, integrity, and confidentiality of Personal Data and to protect against unauthorized access and anticipated threats or hazards thereto including having achieved ISO/IEC 27001 (international standards for information security management).
11.2 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; and (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
11.3 Disclaimer. Except for the express representations and warranties stated in sections 11.1 and 11.2 of these corporate edition terms (which are not applicable to consulting services), DocuSign makes no additional representation, condition or warranty of any kind whether express, implied (either in fact or by operation of law), or statutory, as to any matter whatsoever. DocuSign expressly disclaims all implied conditions and warranties of satisfactory quality and fitness for a particular purpose. DocuSign does not warrant that the DocuSign Products (including consulting services or related deliverables, if any), are or will be error-free, will meet customer’s requirements, or be timely or secure. Customer will not have the right to make or pass on any representation, condition or warranty on behalf of DocuSign to any third party.
12.1 Indemnification of Customer. DocuSign will defend Customer, and its employees, directors, agents, and representatives (“Indemnified Customer”) from: (1) any breaches of confidentiality, and/or (2) any actual or threatened third party claim for infringement of any third party intellectual property rights (each a “Customer Claim”), provided that: (a) the Indemnified Customer gives DocuSign prompt written notice of the Customer Claim; (b) DocuSign has full and complete control over the defense and settlement of the Customer Claim; (c) the Indemnified Customer provides assistance in connection with the defense and settlement of the Customer Claim as DocuSign may reasonably request; and (d) the Indemnified Customer complies with any settlement or court order made in connection with the Customer Claim. DocuSign will indemnify the Indemnified Customer against: (i) all damages, costs, and attorneys’ fees finally awarded against any of them in any Customer Claim under this Section 12.1; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of the Customer Claim (other than attorneys’ fees and costs incurred without DocuSign’s consent after DocuSign has accepted defense of such claim); and (iii) if any Customer Claim arising under this Section 12.1 is settled by DocuSign or with its approval, DocuSign will pay any amounts to any third party agreed to by DocuSign in settlement of any such Customer Claims.
12.2 Indemnification of DocuSign. Customer will defend DocuSign, and its employees, directors, agents, and representatives (“Indemnified DocuSign”) from: (1) any breaches of confidentiality, and/or (2) any actual or threatened third party claim for infringement of any third party intellectual property rights, and/or (3) the nature and content of all materials, works, data, statements, and other visual, graphical, video, written or audible communications of any nature submitted by any Authorized User or otherwise Processed through Customer’s Account (each a “DocuSign Claim”), provided that: (a) DocuSign gives Customer prompt written notice of the DocuSign Claim; (b) Customer has full and complete control over the defense and settlement of the DocuSign Claim; (c) DocuSign provides assistance in connection with the defense and settlement of the DocuSign Claim as Customer may reasonably request; and (d) DocuSign complies with any settlement or court order made in connection with the DocuSign Claim. Customer will indemnify Indemnified DocuSign against: (i) all damages, costs, and attorneys’ fees finally awarded against any of them in any DocuSign Claim under this Section 12.2; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of the DocuSign Claim (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of such DocuSign Claim); and (iii) if any DocuSign Claim arising under this Section 12.2 is settled by Customer or with its approval, Customer will pay any amounts to any third party agreed to by Customer in settlement of any such DocuSign Claims.
12.3 Transfer of Undertakings.
The parties do not intend that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended from time to time) (“TUPE”) shall apply in connection with this Agreement. In the event that TUPE does apply, both parties agree to indemnify and hold the other harmless against any and all liabilities, damages, costs, claims and demands suffered by the other as a result of the transfer or alleged transfer of contracts of employment pursuant to TUPE in connection herewith, or any subsequent dismissal or termination by the other of the contracts of employment of any transferring employees.
13. LIMITATIONS OF LIABILITY
13.1 Disclaimer of Consequential Damages. Except with respect to indemnification obligations of Section 12 and the provisions of Section 13.4, notwithstanding anything to the contrary contained in this agreement, neither party will, under any circumstances, be liable to the other party for consequential, incidental, special, or exemplary damages arising out of or related to the transactions contemplated under this agreement (including with respect to consulting services, if any), including but not limited to lost profits or loss of business, even if apprised of the likelihood of such damages occurring.
13.2 Cap on Liability. Except with respect to indemnification obligations of section 12 and the provisions of Section 13.4, under no circumstances will either party’s total liability of all kinds arising out of or related to this agreement (including, but not limited to, warranty claims and with respect to Consulting Services, if any), regardless of the forum and regardless of whether any action or claim is based on contract, tort, or otherwise, exceed 125% of the total amount paid by Customer to DocuSign under this Agreement during the 12 months preceding the date of the action or claim.
13.3 Independent Allocations of Risk. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties or conditions, 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 customer 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.
13.4 Death or Personal Injury. Nothing in this Agreement shall limit or exclude DocuSign's liability for death or personal injury caused by negligence, or for any fraud or wilful default by or on the part of DocuSign, or for any breach of its obligations implied by Section 12, Sale of Goods Act 1979 or Section 2, Supply of Goods and Services Act 1982.
14.1 “Confidential Information” means any trade secrets or other information of DocuSign or Customer which is expressed to be or is clearly of confidential nature, whether of a technical, business, or other nature (including, without limitation, in the case of DocuSign, DocuSign software and related information, and in the case of Customer, Customer Data and eContracts), that is disclosed to the other party (the “Recipient”). Confidential Information does not include any information that: (a) was known to Recipient prior to 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.
14.2 Restricted Use and Nondisclosure. During and after the Term, Recipient will: (a) use the Confidential Information of the other party solely for the purpose for which it is provided; (b) not disclose such Confidential Information to a third party; and (c) protect such Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
14.3 Required Disclosure. If Recipient is required by law to disclose Confidential Information of the other party or the terms of this Agreement, Recipient must give prompt written notice of such requirement before such disclosure and assist the disclosing party to obtain where reasonably available an order protecting the Confidential Information from public disclosure.
14.4 Return of Materials. Upon the expiration or termination of this Agreement, or upon earlier request, Recipient will deliver to the disclosing party or destroy all of the disclosing party’s Confidential Information that Recipient may have in its possession or control. Notwithstanding the foregoing, Recipient will not be required to return Transaction Data or other materials that it must retain in order to receive the benefits of this Agreement or properly perform in accordance with this Agreement.
14.5 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 shall not render Confidential Information non-confidential.
14.6 Remedies. Recipient acknowledges that any actual or threatened violation of this confidentiality provision may cause irreparable, non-monetary injury to the disclosing party, the extent of which may be difficult to ascertain, and therefore agrees that the disclosing party shall be entitled to seek injunctive relief in addition to all remedies available to the disclosing party at law and/or in equity. Absent written consent of the disclosing party, the burden of proving that the disclosing party’s Confidential Information is not, or is no longer, confidential or a trade secret shall be on the Recipient.
14.7 Existing Obligations. The obligations in this Section 14 are in addition to, and supplement, each party’s obligations of confidentiality under applicable law and/or under any nondisclosure or other agreement between the parties.
15.1 Relationship. DocuSign will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement. This Agreement will not be interpreted or construed as: (a) creating or evidencing any association, joint venture, partnership, or franchise between the parties; (b) imposing any partnership or franchise obligation or liability on either party; (c) prohibiting or restricting either party’s performance of any services for any third party; or (d) establishing or as a foundation for any rights or remedies for any third party, whether as a third party beneficiary or otherwise. Customer must not represent to anyone that Customer is an agent of DocuSign or is otherwise authorized to bind or commit DocuSign in any way without DocuSign’s prior authorization.
15.2 Assignability. Customer may not assign its rights, duties, or obligations under this Agreement without DocuSign’s prior written consent. If consent is given, this Agreement will bind Customer’s successors and assigns. Any attempt by Customer to transfer its rights, duties, or obligations under this Agreement except as expressly provided in this Agreement is void. Notwithstanding the foregoing, either party may assign this Agreement to a successor of its business without the other party’s consent.
15.3 Subcontractors. DocuSign may utilize a subcontractor to perform its duties under this Agreement, provided: (a) DocuSign notifies Customer in writing in advance concerning its use of any subcontractor; (b) the subcontractor shall be bound by confidentiality provisions at least as stringent as those to which DocuSign is subject under this Agreement; (c) DocuSign shall not be relieved of any responsibilities or obligations under this Agreement that are performed by the subcontractor; and (d) DocuSign shall remain Customer’s sole point of contact and sole contracting party.
15.4 Non-solicitation. During the Term of this Agreement and for a period of one year thereafter, Customer will not, directly or indirectly, employ or solicit the employment or services of a DocuSign employee or independent contractor, who was in a key role at DocuSign and with whom Customer has had material dealings in the 12 months preceding the date on which that person left that role, without the prior written consent of DocuSign.
15.5 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent using the certified delivery function of the Hosted Services, by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the Order Form. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given upon receipt if delivered using the Hosted Services, two business days following the date of mailing, or one business day following delivery to a courier.
15.6 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond such party’s reasonable control, so long as such party uses all commercially reasonable efforts to avoid or remove such causes of non-performance or delay.
15.7 Dispute Resolution. If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (Dispute) then, except as expressly provided in this Agreement, the parties shall follow the dispute resolution procedure set out in this Section:
a) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documentation. On service of the Dispute Notice DocuSign and Customer shall attempt in good faith to resolve the Dispute;
b) if the parties are for any reason unable to resolve the Dispute within 14 days of service of the Dispute Notice, the Dispute shall be referred to the senior managers of each party who shall attempt in good faith to resolve it; and
c) if the senior managers are for any reason unable to resolve the Dispute within 14 days of it being referred to them the parties will attempt to settle it by mediation in accordance with the CEDR Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR Solve. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party requesting mediation. A copy of the ADR notice should be sent to CEDR Solve. The mediation will start not later than 14 days after the date of the ADR notice. Unless otherwise agreed by the parties, the place of mediation shall be nominated by the mediator. No party may commence any court proceedings, other than to seek injunctive relief which either party shall be entitled to do at any time, in relation to any dispute arising out of this agreement until 30 days after the appointment of a mediator, provided that the right to issue proceedings is not prejudiced by a delay. Each party hereby irrevocably waives, to the fullest extent permitted by law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement.
15.8 Governing Law and Jurisdiction. This Agreement is governed by the laws of England and both the Customer and DocuSign agree to submit to the exclusive jurisdiction of the English courts. The provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods are expressly excluded and do not apply to this Agreement. Any legal action by Customer arising under this Agreement must be initiated within two years after the cause of action arises.
15.9 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.
15.10 Severability. If any part of this Agreement is found by any court or competent authority to be illegal, unenforceable, or invalid, that provision shall be deemed not to be a part of this Agreement and 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 Customer under this Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate.
15.11 Counterparts. This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement.
15.12 Entire Agreement. This Agreement is the final and complete expression of the agreement between these parties regarding the DocuSign Products. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters. Each party acknowledges that it has entered into this Agreement in reliance only on the representations, warranties, promises and terms contained or expressly referred to in this Agreement and, save as expressly set out in this Agreement, neither party shall have any liability in respect of any other representation, warranty or promise made prior to the date of this Agreement unless it was made fraudulently. This Agreement may be changed only by a written agreement signed by an authorized agent of both parties.
15.13 Third Party Rights. - Unless expressly provided in this Agreement, no express term of this Agreement nor any term implied under it is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise by any person who is not a party to it.
15.14 Bribery Act Compliance. DocuSign shall:
a) comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements);
b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
c) have and shall maintain in place throughout the term of this Agreement its own policies and procedures, including adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and Section 15.14(b), and will enforce them where appropriate;
e) promptly report to Customer any request or demand for any undue financial or other advantage of any kind received by DocuSign in connection with the performance of this Agreement;
f) immediately notify Customer (in writing) if a foreign public official becomes an officer or employee of DocuSign or acquires a direct or indirect interest in DocuSign;
g) for the purpose of this Section, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively. For the purposes of this Section a person associated with DocuSign includes any subcontractor of DocuSign.
15.15 Health and Safety. It is agreed that:
a) DocuSign shall comply with all applicable statutory rules and regulations regarding health and safety matters.
b) DocuSign shall notify Customer as soon as practicable of any health and safety hazards in relation to DocuSign Products of which it becomes aware. DocuSign will draw these hazards to the attention of the Authorized Users and will instruct those persons in connection with any necessary associated safety measures.
ADDITIONAL TERMS AND CONDITIONS FOR CONSULTING SERVICES ("Additional Terms and Conditions")
The following Additional Terms and Conditions apply, in addition to Sections 1, 5, 6, 9, 10, 11.2, 11.3, and 12 through 15 above, to Consulting Services, if any, that are made the subject of an Order Form.
16. SERVICES, WORK ORDERS, AND CHANGE ORDERS
16.1 Services. Subject to the terms and conditions of this Agreement, DocuSign will, if ordered as provided hereunder, perform for Customer certain Consulting Services.
16.2 Work Orders. The specific details of the Consulting Services to be performed will be determined on a per-project basis, and the details for each project will be described in an Order Form that is executed by both parties (called the “Work Order” for purposes of the Consulting Services). An Order Form that lists a DocuSign standard training or consulting package as a DocuSign Product constitutes a Work Order. Once executed by both parties, each Work Order will be a unique agreement that incorporates the Additional Terms and Conditions and stands alone with respect to all other Order Forms. If there is a conflict between the Additional Terms and Conditions and the terms of a Work Order, the Additional Terms and Conditions will prevail unless the Work Order states that a specific provision of the Additional Terms and Conditions will be superseded by a specific provision of the Work Order.
16.3 Change Orders. Unless otherwise specified in a Work Order, Customer may reasonably request in writing that revisions be made with respect to the Consulting Services or deliverables set forth in that Work Order (“Change Order”). If a Change Order recites revisions that materially change the scope of the Consulting Services or the effort required to deliver deliverables under the applicable Work Order, then within 10 business days after DocuSign’s receipt of the Change Order, DocuSign will deliver to Customer a written, revised Work Order reflecting DocuSign’s reasonable determination of the revised Consulting Services, deliverables, delivery schedule, payment schedule, and adjusted fees or fee estimates, if any, that will apply to the implementation of the revisions. If Customer approves the revised Work Order, then the parties will execute it, and upon execution, the revised Work Order will supersede the relevant Work Order. If Customer does not approve the revised Work Order within 10 business days after its receipt by Customer, the then-existing Work Order will remain in full force and effect, and DocuSign will have no further obligation with respect to the applicable Change Order.
17. PERFORMANCE OF CONSULTING SERVICES
17.1 Project Management. For each project described in a Work Order, each party will designate a single point of contact within its organization to manage the project (“Project Leader”). The Project Leaders will meet as necessary to manage the Consulting Services to be performed under a Work Order. Disputes will be dealt with in accordance with Section 15.7 of the Corporate Edition Terms and Conditions. DocuSign’s Project Leader will provide Customer’s Project Leader with regular reports on the status of the Consulting Services at least once per month.
17.2 Performance Standard. DocuSign will use reasonable efforts to perform the Consulting Services in accordance with the applicable Work Order, including any specifications in the Work Order, and to complete the Consulting Services, including the delivery of any deliverables, in accordance with any schedule of times and milestones specified in the Work Order.
17.3 Fees. Unless otherwise specified in a Work Order, Customer will pay DocuSign for Consulting Services on a time and materials basis at DocuSign’s then-current rates and under payment terms described in Section 9.1 of the Corporate Edition Terms and Conditions this Agreement (“Consulting Service Fees”).
17.4 Disclaimer. Except for warranties, if any, expressly identified as such in a work order, the consulting services and any or related deliverables will be provided as-is and without warranty of any kind. DocuSign expressly disclaims all implied warranties and conditions of merchantability, fitness for a particular purpose, and non-infringement as to any and all consulting services and related deliverables.
18. TERM AND TERMINATION OF WORK ORDERS
18.1 Term. Each Work Order will commence on the specified effective date and will continue until each party’s obligations under the Work Order have been fulfilled or the Work Order is terminated as provided in the Work Order.
18.2 Effect of Termination. If any Work Order is terminated in accordance with this Section 18, then, unless otherwise specifically provided for in the applicable Work Order, the following will apply: (a) the parties will cooperate to effect an orderly, efficient, effective, and expeditious termination of the parties’ respective activities under the terminated Work Order; (b) DocuSign will have no obligation to perform any Consulting Services under the terminated Work Order after the effective date of the termination; (c) Customer will pay to DocuSign any Consulting Service Fees and other amounts payable for the Consulting Services performed under the terminated Work Order up to the effective date of the termination; (d) any and all liabilities accrued prior to the effective date of the termination will survive; and (e) the parties’ respective rights and obligations under Sections 17.3, 17.4, 18.3, and 19 of this Agreement with respect to any Consulting Services covered by the terminated Work Order, including the obligation to pay for the Consulting Services that were to be performed, will survive. If a Work Order is terminated by DocuSign pursuant to Section 10.2 of these Corporate Edition Terms or by Customer otherwise than pursuant to Section 10.2 of these Corporate Edition Terms (i.e., other than as a result of a material breach by DocuSign that is not cured as provided above), Customer will pay to DocuSign, in accordance with Section 9.1 of the Corporate Edition Terms and Conditions, the amount of Consulting Services Fees that DocuSign would have been paid under the Work Order had the Work Order not been terminated and had the Consulting Services been fully performed in accordance with the schedule then in effect, based on the expected budget to completion then in effect and taking into account any changes previously agreed to by the parties, which amount owing will be evidenced in a final termination invoice to be provided by DocuSign to Customer. The amount of Consulting Services Fees specified in such termination invoice from DocuSign will be final and binding on the parties, absent manifest error.
18.3 Return of Materials. Upon the termination of this Agreement, or upon Customer’s earlier request, DocuSign will deliver to Customer all Customer Materials (as defined in Section 19.1) that are in DocuSign’s possession or control.
19. PROPRIETARY RIGHTS
19.1 Customer Materials. Any materials provided by Customer to DocuSign specifically for use by DocuSign in the course of the Consulting Services (“Customer Materials”) will be used and disclosed solely as required to perform the Consulting Services. As between the parties, Customer will continue to own the Customer Materials.
19.2 Inventions. Except as expressly set forth to the contrary in a Work Order, all works of authorship, inventions, discoveries, improvements, methods, processes, formulas, designs, techniques, and information: (a) conceived, discovered, developed or otherwise made by DocuSign, solely or in collaboration with others, in the course of performing the Consulting Services; or (b) that form all or part of a deliverable provided as part of the Consulting Services, whether developed as part of the Consulting Services or separately, but excluding Customer Materials (as defined in Section 19.1) (collectively, “Inventions”), will be the sole property of DocuSign. Upon and subject to final payment by Customer of all amounts owing to DocuSign, DocuSign hereby grants to Customer a nonexclusive, perpetual, worldwide, royalty-free license to use, copy, modify, and prepare derivative works of the Inventions solely for purposes of Customer’s internal business operations only.
19.3 Third Party Products. Any third party products that are provided by DocuSign in connection with the Consulting Services are provided pursuant to the terms of the applicable third party agreement, and DocuSign assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any third party products.