TERMS AND CONDITIONS FOR HOSTED eASSET MANAGEMENT SERVICES v140728
In addition to the DocuSign Corporate Subscriber Terms and Conditions, the following additional terms and conditions apply to Subscriber’s use of eAsset Management Services, if any, that are made the subject of an Order Form. The eAsset Management Service is provided by eOriginal, Inc. ("eOriginal") as an alliance partner to DocuSign. These Terms and Conditions may not be modified or amended except with the express consent of eOriginal.
As used herein, “eAsset® Management Service” means eOriginal’s provision of Command Center and other hosted services which enable Subscriber to cause the upload of eDeposits (and the eContracts therein) into eCore and enable Subscriber’s Administrative Users to access and utilize Command Center to manage and administer such eDeposits as transferable records and/or authoritative copies, as such terms are defined in statutes or laws such as the Uniform Commercial Code and the Uniform Electronic Transactions Act.
1. ADDITIONAL DEFINITIONS
1.1 "Administrative Users" means those Authorized Users of Subscriber whom Subscriber authorizes to obtain access and use of Command Center.
1.2 "Command Center™" means that separate user interface of eCore provided as part of the eAsset Management Service which contains the following functionality: eCore vault user authentication, session management and access control; Post-closing eDeposit management by Subscriber of eDeposits in eCore; View, edit, search, retrieval, and print a copy of eDeposits; Certified Print®, Paper Out® export ability and destruction of eDeposits in eCore; and transfer control/ownership of eDeposits and documents therein and vault-to-vault transfers.
1.3 "eCore®" means the eOriginal proprietary software consisting of the electronic vault repository partition provided as part of the eAsset Management Service.
1.4 “eDeposit” means those eContracts and/or other documents and information contained in an Envelope that Subscriber elects to deposit into eCore from the Subscription Service, and those electronic contracts accepted by Subscriber from other hosted customers of eOriginal or from other trusted electronic vaults for deposit into eCore.
1.5 "Service Standards" means those service level standards with regards to performance, maintenance and support of the eAsset Management Service described at http://www.eoriginal.com/support/sla.html, as updated from time to time.
1.6 "Technical Contacts" means those Administrative Users trained by eOriginal and designated by Subscriber as Subscriber's sole contact persons for purposes of obtaining eAsset Management Service support, maintenance and administration services.
1.7 "User's Guide" means, collectively, the documentation relating to the use, administration, functionality and features of the eAsset Management Service, in any medium, which is provided to Administrative Users during implementation and/or made available to Administrative Users via Command Center, each as may be updated from time to time. The current version of the Command Center User's Guide is also available for review at http://support.eoriginal.com/documentation/Admin_Guide.pdf.
2. IMPLEMENTATION AND USER ADMINISTRATION
2.1 Provisioning. Promptly after the Order Start Date defined in an Order Form requesting eAsset Management Service, eCore and Command Center will be provisioned for Subscriber and Subscriber will be provided with training in the use and administration of the eAsset Management Service as described in the Order Form.
2.2 Hardware/Third Party Software. Subscriber shall be solely responsible for selection of, procuring, compatibility of, and maintenance and support of, such third party software and all computer hardware and equipment that may be required in the User’s Guide for Subscriber to access and make effective use of the eAsset Management Service. The eAsset Management Service will be updated to accommodate new versions or releases of such third party software or hardware on eOriginal’s standard development schedule at no additional charge to Subscriber as support under Section 4 below. Such new releases of the eAsset Management Service will be introduced by eOriginal in accordance with its internal release schedule prepared to meet the needs of all its licensed users.
2.3 User’s Guide. The User's Guide specifies the rules governing use and access of the eAsset Management Service by Subscriber and Administrative Users. Changes in the User's Guide will be generally announced from time to time.
2.4 Hosted Services.
2.4.1 Subscriber shall notify eOriginal of the identity of, and contact information for, each authorized Administrative User so as to allow each such Administrative User to be provided with a unique user name and preliminary password for access to Command Center. Each such Administrative User may then log into Command Center and select a unique password. eOriginal is not responsible for loss, misuse or other negligence concerning usernames, passwords or access codes in the possession, custody or control of any Administrative User.
2.4.2 In the event of breach of the User's Guide or these Terms and Conditions by any Administrative User: (i) promptly upon becoming aware of such default, Subscriber shall notify eOriginal of the identity of the Administrative User in breach and the nature of the breach; (ii) Subscriber shall promptly take such action as reasonably necessary to end, remedy and protect against future occurrences of, such default; and (iii) eOriginal expressly reserves the right to immediately terminate access to the eAsset Management Service by such Administrative User without terminating these Terms and Conditions and without liability to Subscriber. eOriginal also reserves the right, without terminating these Terms and Conditions and without liability to Subscriber, to deactivate or suspend access to the eAsset Management Service by: (a) any Administrative User or Subscriber if continued use presents a threat to the security of the other users of the eAsset Management Service or the System, or (b) Subscriber and all Administrative Users if Subscriber fails to timely cure non-payment defaults.
2.4.3 The Additional Subscriber Responsibilities identified in the DocuSign Corporate Subscriber Terms and Conditions shall also apply to Subscriber's use of the eOriginal eAsset Management Service.
2.5 Limitations on Use. Except as expressly permitted in these Terms and Conditions, Subscriber shall not, and shall not permit any Administrative User to: (i) attempt, knowingly permit or encourage other persons or entity to copy, translate, decompile, decipher, disassemble, reverse engineer or otherwise decrypt or in any other manner discover the source code of all or any portion of the eAsset Management Service software; (ii) alter, modify, adapt or create derivative works of, or market, sell, distribute or transfer in any way, such software or the User's Guide, or any portion thereof, in any way; (iii) with the exception of the eAsset Management Service application program interfaces, if provided to Subscriber, use external programs to alter, edit or append records to the data files or other information maintained within the eAsset Management Service; or (iv) sublicense, rent or otherwise allow use of the eAsset Management Service, or any portion thereof, by third parties or otherwise use such software to process the data of third parties or to support Subscriber’s activities in any service bureau capacity.
3. PRICING, LICENSES AND LIMITATIONS
3.1 Hosted Services License. The eAsset Management Service is provided on a hosted basis and sold on the basis of a prepaid subscription which is limited by usage and volume.
3.1.1 eAsset Transactions Fee. The Subscriber is allowed to upload onto the eAsset Management Service the number of eDeposits specified in the Order Form during the Term. All eDeposits uploaded to the eAsset Management Service in excess of the number of eAsset Transactions specified in the Order Form will incur a per-eDeposit charge that will be invoiced on a monthly basis.
3.1.2 eAsset Management Renewal Fee. In addition to the upload allowance, upon renewal or replacement of Subscriber’s Order Form to continue Subscriber’s use of the eAsset Management Service, Subscriber will be charged an eAsset Management renewal fee which will be described in the renewal pricing provided at the time of renewal, and will not exceed twenty percent (20%) of the renewal Upload Allowance Fee per eDeposit, times the number of eDeposits managed on the eAsset Management Service at the time of renewal, times the number of years in the term of the renewal Order Form.
3.1.3 Hosted Basis License. Subject to the terms of these Terms and Conditions and ending on the last day of the Term, eOriginal grants to Subscriber, and Subscriber accepts, a non-transferable and non-exclusive license to:
(i) allow Administrative Users to access and use Command Center using authorized user names and passwords solely in connection with (a) the administration of eDeposits on behalf of Subscriber and (b) as to Technical Contacts, the provision of eAsset Management Service support to other Administrative Users; and
(ii) use, disclose, display, copy and reproduce the User's Guide solely in connection with the rights granted in Section 3.1.3(i) above.
3.2 License Limitations. The licenses granted above in this Section 3 do not grant Subscriber or any Administrative User any right to sublicense, distribute, transfer or transmit eCore or any portion of the eAsset Management Service to any corporate affiliate or to any third party.
4. ONGOING SUPPORT AND MAINTENANCE
4.1 Upgrades. The eAsset Management Service also includes, at no additional charge, all enhancements, upgrades, new versions and other improvements made to included features and functionality. New release notices and training, if required, will be provided prior to the release of each new version. eAsset Management Service support and maintenance does not include support for any extensions or customizations developed by or specifically for Subscriber.
4.2 Service Standards. Subscriber's Technical Contacts will receive ongoing eAsset Management Service maintenance, administration, and support services as more fully described in the Service Standards. Subscriber shall provide eAsset Management Service support services directly to Administrative Users other than Subscriber's Technical Contacts. All Subscriber Technical Contacts shall follow all issue escalation procedures established in the Service Standards. eOriginal and DocuSign are expressly authorized by Subscriber to rely upon any and all instructions, whether in written, electronic or oral form, given by any of Subscriber's Technical Contacts.
4.3 Additional Services. Subscriber may elect to receive additional services, or Premium Support or Other Available Support (each as described in the Service Standards), from eOriginal in connection with the eAsset Management Service, which shall be provided subject to these Terms and Conditions and those of a separately executed services agreement between Subscriber and eOriginal.
5. WARRANTIES AND REMEDY
5.1 Operation and Services. The eAsset Management Service will be provided and maintained in accordance with the Service Standards and these Terms and Conditions. Additionally, all services under these Terms and Conditions, including specifically any additional services, will be performed in a professional manner and to generally accepted industry standards. The eAsset Management Service is warranted to include functionality allowing the Subscriber to materially comply with the provisions of the Uniform Commercial Code Article 9-105 and its requirements for managing electronic chattel paper as transferable digital assets including the ability to manage and securely maintain a single authoritative copy of each such eDeposit that is unique and readily identifiable, and to materially comply with the provisions of any applicable state Uniform Electronic Transactions Act regarding the creation and management of transferable records. The foregoing warranties shall not apply in the following circumstances: (i) if the eAsset Management Service is used by Subscriber or any Administrative User other than in accordance with the User's Guide or these Terms and Conditions; (ii) if the warranty breach is caused by, or is contributed to by, Subscriber or any Administrative User; (iii) if the warranty breach is caused by software other than the eAsset Management software or by malfunction of hardware other than that utilized by eOriginal or DocuSign to provide the eAsset Management Service; (iv) with respect to any scheduled maintenance of any portion of the eAsset Management Service; (v) to the extent the warranty breach is covered by force majeure; or (vi) if the warranty breach is caused by communications or power failures not within eOriginal’s exclusive control. Subscriber agrees that no warranties or representations regarding the eAsset Management Service or any eOriginal services are made other than those set forth in these Terms and Conditions, the Service Standards and the User's Guide.
5.2 Subscriber. Subscriber warrants and covenants that it shall, and it shall require that all Administrative Users: (i) use the eAsset Management Service in compliance with the User’s Guide, these Terms and Conditions and all applicable federal and state laws, rules and regulations, including all applicable export laws; and (ii) not post, or provide for posting, on the eAsset Management Service any material that infringes the trademarks, copyrights or other intellectual property rights of third parties, or that violates a right of privacy or constitutes defamation. Subscriber further warrants and covenants that it shall: (a) reasonably cooperate with DocuSign and eOriginal in their provision of the eAsset Management Service; and (b) have sufficient rights and licenses to all software Subscriber is required to provide or license under the User’s Guide (other than eCore and Command Center) to access and utilize the eAsset Management Service so as to allow DocuSign and eOriginal to provide the eAsset Management Service.
5.3 Disclaimer. Neither DocuSign nor eOriginal warrants that the operation of the eAsset Management Service will be uninterrupted or error-free. Except as set forth in these Terms and Conditions, the eAsset Management Service is provided “as is” without further warranty of any kind, and all express and implied warranties are hereby expressly disclaimed.
5.4 Remedies. Should any component of the eAsset Management Service fail to meet the warranties set forth in this Section 5, Subscriber’s sole and exclusive remedy with respect to such failure, and eOriginal’s sole obligation, shall be, at eOriginal’s option, to bring the performance of the eAsset Management Service into material and substantial compliance with the functional specifications contained in these Terms and Conditions and the User’s Guide, or to replace the defective component with a functionally equivalent component. eOriginal’s obligation to perform such actions is subject to Subscriber providing eOriginal necessary access, including remote access, to Subscriber’s eCore vault partition on the eAsset Management Service for the purpose of correcting any defect. If applicable, Subscriber shall provide eOriginal with sufficient test time and support on Subscriber’s equipment and systems to correct the defect.
6. TERMINATION AND SURVIVAL
6.1 Termination. These Terms and Conditions shall automatically terminate upon any termination of the Order Form. Upon any termination of these Terms and Conditions, DocuSign (and, therefore, eOriginal) shall remain entitled to receive payment of all fees incurred up to and including the effective date of termination.
6.2 Transition Services. If Subscriber fails to export all of its eDeposits from the eAsset Management Service prior to the expiration or termination of this Agreement, Subscriber may request that eOriginal provide reasonable transition services for a period not to exceed 90 days to assist Subscriber in transferring Subscriber’s eDeposits from the eAsset Management Service to another provider or exporting such eDeposits to external paper or electronic media (the "Winding Down Period"). As part of such transition services, eOriginal will, at a minimum, transfer all Subscriber’s eDeposits from the eAsset Management Service. At Subscriber’s request, eOriginal will also cooperate with Subscriber in the development of a transition plan and use reasonable efforts to assist Subscriber and/or its designated service provider in the transition. The transition services described herein shall be detailed in a services agreement between Subscriber and eOriginal, and provided at eOriginal’s then current standard professional service rates. eOriginal may, at its discretion, require advance payment for such transition services, as well as payment to DocuSign of all outstanding fees owed in connection with the eAsset Management Service. Unless otherwise agreed in writing by the parties, if eDeposits remain in the eAsset Management Service for more than 90 days following expiration or termination of this Agreement (or the end of any applicable Winding Down Period, if later), the eDeposits may be destroyed upon notice to Subscriber.
6.3 Effect of Termination. Subject to Section 6.2 above, upon the effective date of termination of these Terms and Conditions, the license and right to use of, and access to, the eAsset Management Service by Subscriber and all Administrative Users shall immediately cease and Subscriber shall immediately return to eOriginal all components of the eAsset Management Service, specifically including and not limited to the User’s Guide (if in the custody, possession or control of Subscriber), destroy and purge all copies of such components and, at eOriginal's request, provide to eOriginal a written certification of Subscriber's compliance with this Section 6.3.
6.4 Survival. The following Sections shall survive any termination or expiration of these Terms and Conditions (or any separately executed eOriginal services agreement), in full force and effect to the extent so provided therein: Sections 5.3, 6, 7, and 8.
7. PROPRIETARY RIGHTS
7.1 Confidentiality. Subscriber acknowledges and agrees that all information provided by eOriginal or by DocuSign in the performance of the eAsset Management Service, including and not limited to all software and the User’s Guide, shall be protected by Subscriber under the DocuSign Corporate Subscriber Terms and Conditions as Confidential Information of eOriginal and, upon any termination of these Terms and Conditions, shall be returned by Subscriber to eOriginal, or destroyed, at eOriginal’s request.
7.2 The eAsset Management Services. The eAsset Management Service and all components thereof, including without limitation, Command Center, eCore and the User’s Guide, and the patents and other intellectual property rights related thereto, and any upgrades, modifications, adaptations, derivative works and enhancements to such materials, shall be and remain the property and Confidential Information of eOriginal and/or its applicable third party vendors; provided however that eOriginal shall not acquire through these Terms and Conditions any ownership interest in Subscriber's eDeposits or Confidential Information. Subscriber and Administrative Users shall have no right, title or interest in any such eOriginal materials, except to the extent of the license granted hereunder, and all such rights not expressly granted herein are reserved to eOriginal.
7.3 Marking. Neither party shall use the other party’s name or trademarks without the express written consent of such other party; provided however that either party may use the other's name and associated logo in a list of clients on its website and in pre-approved press releases and other marketing materials. Additionally, the eAsset Management Service shall bear certain marks of eOriginal (the "Marks"). Subscriber acknowledges that the Marks and all other trademarks and logos displayed on the eAsset Management Service are trademarks of eOriginal or its applicable vendors, and that these Terms and Conditions grants to Subscriber no proprietary rights in, or any right to modify or alter, any such Marks, trademarks or logos, or any copyright designations of eOriginal on or in the eAsset Management Service or the User’s Guide.
8. INDEMNIFICATION; LIMITS OF LIABLITY
8.1 Indemnification of eOriginal. Subscriber shall indemnify, defend and hold DocuSign and eOriginal harmless from and against all damages, losses and expenses that arise from any third party claim that Subscriber or any Administrative User failed to comply with the terms of these Terms and Conditions or otherwise fail to use the eAsset Management Service in accordance with the terms and conditions of the User’s Guide and/or these Terms and Conditions.
8.2 Indemnification of Subscriber. eOriginal shall indemnify, defend and hold Subscriber harmless from and against all damages, losses and expenses that arise from any third party claim that: (a) any portion of the eAsset Management Service infringes or violates any third party intellectual property rights; provided that, upon receipt of written notice of such claim, eOriginal will have the option, in eOriginal's sole discretion, to: (i) promptly replace the eAsset Management Service with software or a system that is non-infringing, (ii) promptly modify the eAsset Management Service to make it non-infringing or obtain a license from the objecting third party, or (iii) in the event reasonable attempts at Section 8.2(i) and (ii) fail, terminate these Terms and Conditions and all access to the eAsset Management Service by Subscriber and all its Administrative Users; or (b) eOriginal failed to maintain the confidentiality of Subscriber's Confidential Information in accordance with the DocuSign Corporate Subscriber Terms and Conditions. The remedies set forth in Section 8.2(a) above are Subscriber’s sole and exclusive remedy for any claims of actual or alleged infringement by eOriginal of any third party intellectual property rights.
8.3 Limitations. eOriginal shall have no liability or obligation to indemnify or hold harmless Subscriber to the extent any claim of infringement under Section 8.2(a) above is based upon: (i) use of the eAsset Management Service in connection or in combination with equipment, devices, or software not supplied by or under the express direction of eOriginal; (ii) use of the eAsset Management Service not in accordance with the User’s Guide; (iii) modifications of the eAsset Management Service by or on behalf of Subscriber made without the express prior consent of eOriginal; or (iv) Subscriber’s failure to use updates or enhancements to the eAsset Management Service which are made available to Subscriber by eOriginal.
8.4 General Limitations of Liability. Except with respect to indemnification obligations of Sections 5.4 and 8.2 above, eOriginal shall not be directly liable to Subscriber, or to any Administrative User, under these Terms and Conditions for any actual, direct, special, indirect, incidental, exemplary, punitive, or consequential damages of any kind (including legal fees and expenses), whether the related claim is under theory of contract, tort (including negligence), strict liability, or otherwise, even if eOriginal has been advised of the possibility of such loss or damage.
8.5 Notices. Any notice under the DocuSign Corporate Subscriber Terms and Conditions which is required or permitted under these Terms and Conditions to be given to eOriginal shall be provided to eOriginal, Inc., Attn: General Counsel, 351 W. Camden Street, Suite 800, Baltimore, MD 21201, with a copy to [email protected].