SEAL TERMS OF SERVICE
These Seal Terms of Service govern access to and use of the Seal Software Limited (“Seal”) web sites and Services (defined below) by site visitors and by entities who purchase Services and their Authorized Users (collectively, “Licensees”), together referred to as the “Parties” and each individually as a “Party”. By using the site or any Services, you accept these terms of the Agreement (whether on behalf of yourself or a legal entity you represent).
Products ordered under an Order Form are subject to the terms of such Order Form and are further subject to the additional terms of these Terms of Service and any and all Statement(s) of Work. The Terms of Service and any and all Statement(s) of Work are collectively referred to as the “Agreement”. The Agreement and the relevant Order Form(s) make up the agreement between Licensee and Seal. Where the terms of the Order Form and/or SOW conflict with the terms of the Seal Terms of Service, the Order Form and/or SOW shall control.
BY ACCESSING, USING, OR DOWNLOADING ANY MATERIALS FROM THE SITE, LICENSEE AGREES TO FOLLOW AND BE BOUND BY THE AGREEMENT. IF LICENSEE DOES NOT AGREE TO THE AGREEMENT, LICENSEE IS NOT AUTHORIZED AND MUST CEASE USING THE SITE IMMEDIATELY.
- DEFINITIONS
- “Account” means a unique account established by Licensee to enable its Authorized Users to access and use a Seal Cloud Service.
- “Affiliate” of a Party means any entity that the Party directly or indirectly owns or controls more than fifty percent (50%) of the voting interests of the subject entity. Any legal entity will be considered a Party’s Affiliate as long as that interest is maintained.
- “Authorized Users” means one individual natural person, whether an employee, business partner, contractor, or agent of Licensee or its Affiliates who is registered by Licensee to use the Seal Cloud Services. An Authorized User must be identified by a unique email address and user name, and two or more persons may not use the Seal Cloud Services as the same Authorized User. If the Authorized User is not an employee of Licensee, use of the Seal Cloud Services will be allowed only if the user is under confidentiality obligations with Licensee at least as restrictive as those in this Agreement and is accessing or using the Seal Cloud Services solely to support Licensee and/or Licensee Affiliates’ Internal Business Purposes.
- “Confidential Information” means (a) the Services and related Documentation; (b) either Party’s business, technical, or financial information and plans, documents, works in progress, work processes, trade secrets, or other secret or confidential matter related to either Party’s business, products, technologies, or projects and/or their affiliated, related or subsidiary companies, including, without limitation, customer information; and (c) any other information that either Party designates as confidential, or which, under the circumstances of disclosure, should be treated as confidential. The Parties acknowledge that: (i) Licensee’s Confidential Information includes Licensee Data; and (ii) Seal’s Confidential Information includes, without limitation, the Software and its various algorithms, data structures, manner of operation, and other elements, as well as any output or other data obtained or derived from the Software or Services to discern or emulate any of the foregoing or in violation of any restrictions or Licensee’s representations or warranties set forth in this Agreement.
- “Deliverables” means anything developed by or on behalf of Seal and delivered to Licensee pursuant to the provision of Services or a SOW, including but not limited to software programs, source and object codes, specifications, designs, processes, techniques, concepts, improvements, discoveries, ideas, inventions and related documentation. For the avoidance of doubt, “Deliverables” does not include Licensee Data.
- “Documentation” means the then-current user guides, manuals and other instructional materials made generally available by Seal relating to the operation and functions of the Software, as may be updated from time to time by Seal.
- “DocuSign” means DocuSign, Inc. and its affiliates.
- “eDocument” refers to a contract, notice, disclosure, or other record or document deposited into the Software by Licensee for processing.
- “Envelope” means (a) an electronic record containing one or more eDocuments consisting of a single page or a group of pages of data uploaded to the Software and (b) where documents are ingested from outside of the DocuSign instance, each unique document ingested into the Software.
- “Envelope Count” means the number of envelopes held within or processed by the Seal Cloud Services as calculated as set out in Section 3.2 for the purposes of assessing usage limits as set out in the Order Form(s).
- “Envelope Count License Period” means the initial or subsequent Seal Cloud Services subscription period set out in the Order Form.
- “Intellectual Property Rights” means: (a) any patents and patent applications in any jurisdiction and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (b) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (c) copyrights, copyright registrations, mask works, mask work registrations, and applications for any of the same in any jurisdiction, and all other rights corresponding thereto throughout the world; and (d) any other proprietary rights anywhere in the world.
- “Internal Business Purposes” means the processing by the Software of documents belonging to Licensee.
- “Licensee Data” means Licensee’s Envelopes, contracts, documents and data in original form, in original or modified format/file-type, and all data and metadata extracted from Licensee’s contracts and other documents by the Software, provided such data and metadata are not obtained or used in violation of any restrictions or Licensee’s representations or warranties set forth in this Agreement.
- “New Release” means an updated release of the Software released by Seal from time to time.
- “Order Form” means an order form for Seal Cloud Services and/or related Professional Services executed by Licensee and DocuSign and referencing this Agreement. A Statement of Work may constitute an Order Form for Professional Services, and vice versa.
- “Professional Services” means the software installation, configuration, and/or other professional services purchased by Licensee under this Agreement, as identified in the applicable Order Form(s) or Statement of Work.
- “Seal Cloud Services” means the online, cloud-based services for which the Licensee has purchased or is purchasing a subscription, as identified in the applicable Order Form(s), which services are facilitated by Seal’s software solution as hosted by or for Seal in a cloud environment and made accessible to Licensee’s users via the Internet. Use of the Seal Cloud Services may require additional environments as set forth in the Documentation.
- “Services” means, collectively (or individually as the context requires) the Seal Cloud Services, Professional Services and any additional services (such as software maintenance and/or support services) identified on the Order Form and/or SOW that Seal may perform or offer to Licensee in relation to the Seal Cloud Services.
- “Software” means the Seal software set forth in the applicable Order Form(s) incorporated herein by reference and hosted and operated by or on behalf of Seal to provide the Seal Cloud Services, plus any New Releases provided by Seal, and any Third Party Software that may be used by Seal to provide the Seal Cloud Services.
- “Statement of Work” or “SOW” means a statement of work for Professional Services that: (a) describes the services to be performed and/or the work product to be delivered by Seal for a given Professional Services project; (b) sets forth the compensation to be paid by Licensee for such Professional Services; (c) expressly references this Agreement; and (d) has been executed by both (i) DocuSign or Seal and (ii) Licensee.
- “Technical Support and Maintenance Services” shall mean the services outlined in the Order Form. The UI and support shall be provided in English only.
- “Third Party Software” means software licensed by Seal from third parties and included in Software and subject to terms between Seal and the third party licensing the applicable Third Party Software to Seal.
- SERVICES; LIMITED LICENSE
- Seal will provide the Seal Cloud Services described in this Agreement and any Order Form in accordance with the terms and conditions of this Agreement and the applicable Order Form. Each Order Form will become a part of and be governed by the terms of this Agreement.
- Subject to the terms and conditions of this Agreement and subject to Licensee’s timely payment of the license fees due hereunder, Seal hereby grants Licensee a non-exclusive, non-transferable, non-sub-licensable right and license to access and use the Seal Cloud Services solely for Licensee’s and Licensee’s Affiliates’ Internal Business Purposes, within the usage limits and for the period identified in the applicable Order Form. Except for the limited rights and licenses expressly granted hereunder for the Seal Cloud Services, no other license is granted in nor is any other use permitted of the Seal Cloud Services or its associated Software.
- Licensee may choose to obtain products, services or materials that are provided or supported by third parties (“Third-Party Services and Materials”) for use with Seal Cloud Services. Seal assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any Third-Party Services and Materials that are provided pursuant to the terms of the applicable third-party license or separate agreement between the licensor of the Third-Party Services and Licensee. Seal does not represent and/or warrant in any manner that Third-Party Services and Materials are accurate, current, or comply with laws, rules and/or regulations of, or are otherwise valid and enforceable in or appropriate for, the jurisdiction in which the Third-Party Services and Materials are used or for Licensee’s purposes.
- All costs associated with obtaining remote access to the Seal Cloud Services, including without limitation, telecommunication costs shall be borne exclusively by the Licensee. The Licensee shall also bear responsibility for the availability of a telecommunications internet connection and maintaining the minimum necessary bandwidth thereof.
- Licensee may allow its Authorized Users to access the Seal Cloud Services solely for the benefit of Licensee’s and its Affiliates’ Internal Business Purposes and subject to the restrictions and limitations as set out in this Agreement. Licensee will not permit access to or use of the Seal Cloud Services by anyone other than such Authorized Users. Authorized Users may not share their access credentials with any other individuals, nor access or use the Seal Cloud Services by any means other than through interface(s) furnished or designated by Seal. Licensee will remain liable and responsible for compliance by such agents and contractors with this Agreement in such use. Licensee will ensure that its Affiliates and all Authorized Users using the Seal Cloud Services under its Account comply with all of Licensee’s obligations under this Agreement, and Licensee is responsible for their acts and omissions relating to the Agreement as though they were those of Licensee.
- The Software may contain or be accompanied by certain libraries, code, or other materials that are furnished subject to open-source licensing terms. The restrictions and limitations set forth in this Agreement shall not apply to such libraries, code, or other materials to the extent (if any) that such restrictions or limitations would purport to diminish or conflict with the rights granted or required to be granted to Licensee under the applicable open-source licensing terms.
- Licensee is solely responsible for the content of all Licensee Data. Licensee will secure and maintain all rights in Licensee Data necessary for Seal to provide the Seal Cloud Services and Software without violating the rights of any third party or otherwise obligating Seal to Licensee or to any third party. Seal does not and will not assume any obligations with respect to Licensee Data or to Licensee’s use of the Seal Cloud Services and Software other than as expressly set forth in this Agreement or as required by applicable law.
- Licensee is responsible for ensuring that the Seal Cloud Services and Software are not used for the storage, distribution or transmission of any illegal material that may subject Licensee to criminal or civil liability. Licensee additionally agrees not to use the Seal Cloud Services or Software for the storage, distribution or transmission of other prohibited or harmful material including, but not limited to, programs containing viruses or trojans and tools to compromise the security of other sites.
- ENVELOPE COUNT
- The license is subject to Envelope Count usage limits set out in the relevant Order Form.
- The Envelope Count is equal to the sum of: (i) the number of Licensee Envelopes held within the Software at any one time; and (ii) the cumulative number of wholly or partially exported Envelopes that have been subsequently deleted from the Software during the current Envelope Count License Period.
- If the Licensee holds documents within more than one instance of the Software, the Envelope Count is the total of unique documents across all instances.
- PROFESSIONAL SERVICES
- Seal and its Affiliates will perform the Professional Services, if any, in accordance with the terms of this Agreement and the applicable Statement(s) of Work, subject to Licensee’s payment of the compensation set forth in such Statement(s) of Work. Each SOW will form a part of this Agreement and will be subject to the terms and conditions contained herein.
- Professional Services will be performed by employees of Seal and its Affiliates or by an independent contractor with whom Seal has entered into an agreement in relation to performing Professional Services. Seal is responsible for the obligations relating to such relationships.
- Licensee may request changes to the specifications of Professional Services in a SOW; provided, however, that any requested changes shall be documented in a change order request and are subject to the prior written approval of Seal and may result in an increase in fees due and payable under the applicable SOW.
- Licensee shall provide, in a timely manner and at no charge to Seal, technical data, computer facilities, programs, files, documentation, test data, sample output, other relevant complete and accurate information and data, resources, assistance and cooperation reasonably required by Seal for the performance of the Professional Services. Licensee will be responsible for the content, accuracy, completeness and consistency of all such data, materials and information supplied by it and for working space and office support (including access to telephones, the Internet, printers, and the like) as reasonably required by Seal to perform the Professional Services. Certain Professional Services may be provided via remote access, requiring the establishment of a secure link via the Internet, and Licensee agrees that it will assist Seal in establishing such a remote connection. In the event that it is not possible to establish a remote connection, Parties will work together to find a workable solution taking into account all relevant circumstances. Seal will in no event be responsible for the inability to establish a remote connection, or for any replacement solution.
- Seal will not be responsible for any failures or delays with respect to the Professional Services (including any failure to meet agreed-upon schedules or cost estimates) that result from Licensee’s failure to meet its obligations set forth in Section 4.4.
- Upon payment for the Professional Services in accordance with the applicable SOW, all associated Deliverables will be deemed licensed to Licensee on a non-exclusive basis, solely for use by or on behalf of the Licensee for its Internal Business Purpose during the period of, and in connection with, its authorized use of the Seal Cloud Services, subject to and in accordance with the terms and conditions of this Agreement (including all restrictions, limitations, and prohibitions applicable to such Seal Cloud Services). Licensee will have no other rights in the Deliverables except as expressly stated above or otherwise agreed to in writing by the Parties.
- Unless otherwise set out in the applicable SOW, the Professional Services pertaining to the Seal Cloud Services will be provided for the then-current version of the Seal Cloud Services as of the effective date of the SOW. Seal will not be responsible for the migration or re-implementation of the Professional Services for later versions of the Seal Cloud Services, unless Licensee separately contracts for such migration or re-implementation.
- PROPRIETARY RIGHTS; LICENSE RESTRICTIONS
- Seal and/or its licensors retain all right, title and interest to: (a) the Seal Cloud Services, Software and related Documentation, (b) the Deliverables, (c) any other developments made in the course of providing Seal Cloud Services, including any improvements and/or enhancements made to the Seal Cloud Services and the Usage Data (as defined below), (d) any other developments made in the course of performing Professional Services, and (e) all Intellectual Property Rights associated with or embodied in any of the foregoing. Seal reserves all rights not expressly granted herein. Licensee grants Seal a non-exclusive license to access the Licensee Data in order to generate usage data that does not identify, or reasonably permit identification of Licensee Data (the “Usage Data”).
- Licensee retains all right, title, and interest in and to Licensee Data. Seal acquires no rights in Licensee Data, other than the right to host, reproduce, use and process Licensee Data for the purposes of providing the Seal Cloud Services, troubleshooting to prevent, find, and fix problems within the operation of the Seal Cloud Services and improving features for finding and protecting against threats to Licensee Any Seal Cloud Services or Software output included in the Licensee Data remains subject to the restrictions set forth in Section 5.3 and Licensee’s representations and warranties set forth in this Agreement.
- In addition to those prohibitions contained elsewhere in this Agreement or the applicable Order Form, Licensee shall not: (a) rent, lease, loan, sell, copy (except as permitted in Section 2.5 above), or distribute the Seal Cloud Services or Software in whole or in part; (b) use the Seal Cloud Services or Software or any portion thereof for commercial sale, sublicense, lease, access or distribution, including without limitation to provide processing services to third parties; (c) remove or modify any Seal trademarks or notices on the Seal Cloud Services or Software; (d) allow any third party to access or use the Seal Cloud Services or Software (except as permitted in Section 2.6 above); (e) modify, decompile, disassemble, or reverse engineer the Seal Cloud Services or Software and/or create derivative works of the Software (except to the extent, if any, that applicable law prohibits restrictions on such activities); (f) use the Services or Software or its output to train, calibrate, or validate, in whole or in part, any other systems, programs or platforms, or for benchmarking, software-development, or other competitive purposes, or use the Software for any other purposes that are outside the Internal Business Purposes as defined above; or (g) exceed the licensed use of the Services or Software as specified in the relevant Order Form. The Agreement and licenses hereunder are specific to Licensee and may not be shared with, used by, provided to or otherwise made available to any third party. Except as expressly provided by the Agreement, no other licenses or rights are granted to Licensee.
- Licensee must ensure that each and every copy of the Software, Documentation, or Deliverables that it makes in accordance with this Agreement bears the copyright and other proprietary notices on the original copy of the Software, Documentation, or Deliverables supplied.
Licensee is responsible for maintaining the confidentiality of any non-public authentication credentials associated with Licensee’s use of the Seal Cloud Services or Software. Licensee agrees to promptly notify Seal about any possible misuse of Licensee’s Accounts or authentication credentials or any security incident related to the Seal Cloud Services or Software. - Licensee is responsible for any Licensee abuse of the Seal Cloud Services or Software which disrupts the normal use of the Seal Cloud Services. Examples of abuse include, but are not limited to, attempting to disrupt the sessions of other Internet users, consuming excessive amounts of CPU time, memory or disk space, or otherwise affecting the performance of Seal servers. Seal may log instances of abuse or unusual use of system resources, including but not limited to those stated herein, and take action as outlined in this Agreement.
Seal carries out maintenance work on a regular basis. Where such maintenance work is expected to impair Licensee’s access to or use of the Seal Cloud Services, it will be communicated to the Licensee as soon as reasonably possible and, if possible, planned for off-peak periods.
- ORDER FORMS; PRICING
- Licensee may order Seal Cloud Services subscriptions and Professional Services by signing the appropriate Order Form issued by DocuSign. Licensee shall pay all fees for such Seal Cloud Services within thirty (30) days from the effective date of the relevant Order Form (or, in the case of renewal fees, from the beginning of the renewal period or as specified in the relevant Order Form) or, where applicable, on such other schedule as may be set forth in that Order Form. Except as otherwise provided in the applicable SOW, Professional Services fees shall be invoiced on a monthly basis and Licensee will pay all Professional Services fees within thirty (30) days of the date of the invoice and Licensee will pay all Professional Service fees pursuant to the terms of the applicable Statement of Work. Pricing reflects the allocation of risks and limitations of liability set forth in this Agreement and the applicable Order Form and/or Statement of Work. All fees are non-refundable, unless otherwise explicitly stated in this Agreement.
- All fees are exclusive of sales, use or other taxes imposed by applicable law, except for taxes based on Seal’s income, and Licensee shall reimburse Seal for all such taxes. If the government of any country requires Seal to remit or Licensee to withhold or deduct any taxes, charges or other duties from any payments hereunder, Licensee shall pay any additional amounts as may be necessary in order that the net amounts received by Seal after any such remittance, withholding or deduction equals the amounts specified herein.
- The fees for Professional Services as set out in a SOW do not include expenses. Licensee shall reimburse all approved travel and other related expenses incurred by Seal in relation to its performance of the Professional Services.
- If Licensee has any query in respect of any invoice, Licensee must notify Seal in writing within fourteen (14) calendar days after the date of that invoice; otherwise the invoice will be deemed to be correct and Licensee will be liable to pay it.
- Any amounts which are not paid within the due date as set forth in Section 6.1 above will be subject to interest of one percent (1%) per month, which will be immediately due and payable. Licensee may not offset an obligation to pay any charges or fees provided for in this Agreement against any claim on Seal or suspend payment on any ground.
- VERIFICATION
- Within thirty (30) days written request by Seal, Licensee shall provide Seal with a license log generated by the Software reflecting its usage of the Seal Cloud Services over the period specified in such request. Seal shall not request such usage log more than once annually. Without limiting any of Seal’s other rights or remedies, any fees applicable to Licensee’s use of the Seal Cloud Services in excess of its licensed use, calculated retroactively, will be due within thirty (30) days of written notification by Seal.
- If Seal has reason to believe that Licensee is using the Seal Cloud Services or Software for any purpose other than the Internal Business Purposes, or is otherwise in violation of the restrictions set forth in Section 5.3 or Licensee’s representations and warranties set forth in this Agreement, and if Licensee does not demonstrate to the contrary to Seal’s satisfaction within ten (10) days after written request, then Seal may (and Licensee will reasonably cooperate to enable Seal to) inspect and audit Licensee’s records, systems, facilities, and operations in order to determine whether (and the extent to which) such a violation has occurred and/or is continuing.
- PUBLICITY
- Neither Party shall refer to the identity of the other Party in promotional material, publications, or press releases or other forms of publicity relating to the Services unless the prior written consent of the other Party has been obtained, provided, however, that Seal may use Licensee’s name and logo for the limited purpose of identifying Licensee as a customer of the Service.
- Neither Party shall refer to the identity of the other Party in promotional material, publications, or press releases or other forms of publicity relating to the Services unless the prior written consent of the other Party has been obtained, provided, however, that Seal may use Licensee’s name and logo for the limited purpose of identifying Licensee as a customer of the Service.
- CONFIDENTIALITY
- Each Party (the “Receiving Party”) acknowledges that, in the course of this Agreement, it may obtain Confidential Information of the other Party (the “Disclosing Party”) The Receiving Party shall keep in confidence all such Confidential Information and shall not use it except in furtherance of this Agreement. The Receiving Party shall not disclose any Confidential Information of the Disclosing Party to any person without the Disclosing Party’s prior written consent except that the Receiving Party may disclose such Confidential Information to its officers, employees and agents on a “need-to-know” basis, provided that such employees and agents execute a written agreement with materially the same terms and conditions as this Section 9 and the Receiving Party remains ultimately liable for any breaches thereof.
- The obligations of confidentiality shall continue during the term of this Agreement and for a period of five (5) years thereafter, unless and until such Confidential Information falls within one of the exceptions outlined in Section 9.3.
- This Section 9 shall not apply with respect to information the Receiving Party can document: (a) is in the public domain through no act or omission of the Receiving Party or its employees or agents; (b) was already known to the Receiving Party without restriction at the time of receipt from the Disclosing Party; (c) is received by the Receiving Party from third parties without restriction and without breach of a duty of nondisclosure by such third party; or (d) was independently developed by the Receiving Party without reliance on or reference to the Disclosing Party’s Confidential Information. Furthermore, this Section 9 will not prohibit the Receiving Party’s disclosure of Confidential Information to the extent such disclosure is required by law or regulation or by order of a court or administrative body of competent jurisdiction, provided that, prior to such disclosure, the Receiving Party shall first give notice to the Disclosing Party, if lawfully allowed, so that the Disclosing Party has the opportunity to contest such order or requirement of disclosure or seek appropriate protective order.
- Neither Party shall disclose the terms of this Agreement to any third party (other than such Party’s attorneys, accountants or other agents bound to keep such terms confidential) without the prior written consent of the other Party. Notwithstanding the above, Seal has the right to disclose the terms of this Agreement in confidence to potential investors, acquirers, and providers of capital.
- WARRANTY AND SUPPORT
- Licensee may request assistance under Technical Support and Maintenance Services, where applicable. Technical Support and Maintenance Services are provided during the period of the license according to the terms and conditions in the applicable Order Form and will commence on the effective date of the applicable Order Form.
- Seal warrants that the Software, when used as permitted under this Agreement, will perform substantially in accordance with the Documentation accompanying such Software. If the Software fails to satisfy the foregoing warranty, and Seal receives notice from Licensee detailing the failure, Seal shall (at its option) either: (a) repair or replace the Software to make it perform as warranted, or (b) permit Licensee to terminate the affected Order Form, by prompt written notice to Seal, and receive a prorated refund of the fees paid by Licensee for the non-conforming Software. The foregoing are Licensee’s sole and exclusive remedies for breach of this warranty.
- The warranty set forth in Section 10.2 shall not apply if: (a) the Software has not been used at all times in accordance with the Documentation and on the Designated Equipment; (b) Licensee (either itself or via a third party on its behalf) has modified the Software; or (c) Licensee has combined the Software with other software or hardware not provided or authorized by Seal.
- EXCEPT AS PROVIDED IN SECTION 10.2, THE SOFTWARE AND SERVICES UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND WITHOUT WARRANTY BY SEAL AND/OR ANY OF ITS LICENSORS OF ANY KIND. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, SEAL DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES RELATING TO THE SERVICES, SOFTWARE, DOCUMENTATION, DELIVERABLES, PROFESSIONAL SERVICES, AND/OR TECHNICAL SUPPORT AND MAINTENANCE SERVICES, INCLUDING BUT NOT LIMITED TO WARRANTIES REGARDING THE USE OR THE RESULTS OF THE SERVICES OR SOFTWARE, WITH RESPECT TO ITS PERFORMANCE, ACCURACY, RELIABILITY OR OTHERWISE, OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SEAL DOES NOT WARRANT THAT THE SERVICES, SOFTWARE, DOCUMENTATION, DELIVERABLES, PROFESSIONAL SERVICES OR TECHNICAL SUPPORT AND MAINTENANCE SERVICES WILL MEET LICENSEE’S REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICES OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO SEAL AND/OR ANY OF ITS LICENSORS.
- INDEMNIFICATION
- 11.1 Subject to the provisions of this Section 11, Seal shall, at its expense, defend or settle any claim or action brought against Licensee by a third party or administrative agency action or proceeding (“Claim”) to the extent such Claim is based on an allegation that the Seal Cloud Services infringe any patent or copyright enforceable under applicable law of a third party and Seal shall pay damages and costs finally awarded against Licensee in such Claim which are specifically attributable to such allegation, provided that (a) Licensee has notified Seal promptly in writing of such claim or action, (b) Licensee gives Seal sole and exclusive control of the defense thereof (and any negotiations for settlement or compromise thereof), and (c) Licensee gives Seal relevant information and assistance to defend against or settle the claim. The Parties agree that the Seal Cloud Services shall, for purposes of this Section 11, be deemed to include any associated Deliverables.
- If the Seal Cloud Services becomes, or, in Seal’s opinion, is likely to become, the subject of an allegation of infringement, Seal may, at its option and expense: (a) procure the right to continue using the Seal Cloud Services; (b) replace or modify the Seal Cloud Services with services of no less than equivalent functionality; or (c) terminate this Agreement and the access and usage rights granted hereunder, and refund a portion of the monies paid by Licensee for the then-current subscription term, prorated based on the number of days then remaining in that term.
- Seal will not indemnify or have any other obligations to Licensee under Section 11.1 or otherwise for any claim or action alleging infringement based upon: (a) any use of the Seal Cloud Services in violation of this Agreement or outside the scope of use as set out in the relevant Documentation; (b) any use of the Seal Cloud Services or Services or Software in combination with other products, software, methods or other elements not supplied by Seal to the extent such claim relates to such combination; (c) use of other than a current release of the Seal Cloud Services or Software if such infringement would have been avoided by use of a current release, (d) any alteration, modification or customization of the Seal Cloud Services or Software by any entity other than Seal, or (e) information, designs, specifications, instructions, software, data or materials furnished by Licensee or any third party.
- THIS SECTION 11 STATES THE ENTIRE LIABILITY OF SEAL AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT CLAIMS AND ACTIONS.
- LICENSEE REPRESENTATIONS; NON-SOLICITATION
- As a material inducement for Seal to enter into this Agreement, Licensee represents and warrants to Seal that Licensee and its Affiliates: (a) are not developing nor planning to develop any system, program, or platform that could compete with or be used to replace the Seal Cloud Services or Software in whole or in part; and (b) will not use the Seal Cloud Services or Software or its output in violation of Section 5.3. If at any time Licensee engages or plans to engage in any activity of a kind described in clause (a) or (b) of the preceding sentence (such as developing a system that competes with the Seal Cloud Services or Software), then without limiting any of Seal’s other rights and remedies, Licensee shall immediately notify Seal of such plans or activities, cease all use of the Seal Cloud Services and Software, and return the Seal Cloud Services and Software to Seal without retaining any copies.
- Licensee acknowledges and agrees that the employees and consultants of Seal who perform Professional Services under this Agreement are valuable assets to Seal and are difficult to replace. Accordingly, Licensee agrees that, during the provision of Professional Services and for a period of one (1) year after the completion of the Professional Services, it will not solicit or offer employment (either as an employee, independent contractor or consultant) to any Seal employee or consultant who has performed Professional Services for Licensee.
- LIMITATION OF LIABILITY
- EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS UNDER SECTION 11: (a) IN NO EVENT WILL SEAL, ITS DIRECTORS, EMPLOYEES, LICENSORS OR AGENTS BE LIABLE TO LICENSEE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF REVENUES OR PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR THE LIKE, ARISING OUT OF THIS AGREEMENT, EVEN IF SEAL AND/OR ITS AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (b) IN NO EVENT SHALL SEAL’S LIABILITY TO LICENSEE OR ANY PERSON EXCEED THE TOTAL FEES PAID BY LICENSEE FOR THE SERVICES GIVING RISE TO THE CLAIM.
- Licensee expressly acknowledges and agrees that the limitations of liability specified herein, and the resulting allocation of risk between Seal and Licensee, form a basis of the bargain between the Parties and shall apply to the fullest extent permitted under applicable law, even if any limited remedy specified herein is found to have failed of its essential purpose.
- TERM AND TERMINATION
- This Agreement shall have an initial term as set out in the first Order Form. Upon the expiry of the initial term (or any subsequent renewal), Seal and Licensee may jointly renew the license by executing further Order Forms. At the end of the period covered by Order Forms, this Agreement (including the license rights granted hereunder) shall terminate, and Licensee shall de-install and cease all use of the Software and Deliverables. Either Party may forthwith terminate this Agreement if: (a) the other Party materially breaches this Agreement and such breach is not cured within thirty (30) days of written notice describing the breach; or (b) if the other Party becomes unable to pay its debts when due or enters into liquidation (except voluntary liquidation not involving insolvency for the purposes of a reconstruction or amalgamation) or has a receiver or examiner or a person in the nature of a receiver or examiner appointed to its undertaking or assets or enters into any arrangement with its creditors. No termination on the basis of this provision will entitle Licensee to a refund of any portion of the fees paid to Seal.
- Upon any termination or expiration of this Agreement, all access, usage and/or license rights granted by Seal hereunder shall automatically terminate and Licensee agrees: (a) to forthwith discontinue any use of the Software, Deliverables, Documentation and Confidential Information, and any derivative works or copies thereof; (b) to promptly return such materials to Seal or (with Seal’s approval) destroy such materials, and (c) at Seal’s request, to supply Seal with a certificate signed by an executive officer of Licensee verifying that this provision has been complied with. Termination will not affect the provisions of this Agreement regarding Confidential Information exchanged prior to termination, payments, limitation of liability, license rights (except as provided above), license restrictions and obligations and/or applicable law, or other clauses that, by their content or nature, are intended to survive. These provisions will survive termination of this Agreement.
- Upon termination, Seal will retain any Licensee Data Licensee has not deleted for at least thirty (30) days (the “Transition Period”) so that Licensee may extract it from the platform. Upon written request from Licensee, Seal shall assist in such extraction by creating an export of all Licensee Data in the platform. Such export shall be in the form readily exportable from the platform without configuration or other modification. Any additional support or extensions to such Transition Period shall be subject to a mutually acceptable SOW. Licensee remains responsible for all storage and other applicable charges during this retention period. Following the expiration of this retention period, Seal may delete all Licensee Data, including any cached or back-up copies, within 30 days of the end of the retention period. Licensee agrees that Seal has no additional obligation to hold, export or return Licensee Data and that Seal has no liability whatsoever for deletion of Licensee Data pursuant to these terms.
- SECURITY, PRIVACY, DATA PROTECTION
- Seal will maintain appropriate technical and organizational measures, internal controls, and data security routines intended to protect Licensee Data against accidental loss or change, unauthorized disclosure or access, or unlawful destruction.
- Licensee warrants that its collection and use of any personal information or data provided while using the Services complies with all applicable data protection laws, rules, and regulations. Licensee and its Authorized Users acknowledge that Seal may process such personal data in accordance with the Seal Privacy Policy.
Seal may hire other companies to provide limited services on Seal’s behalf such as customer support. Any such subcontractors shall be permitted to obtain Licensee Data only to deliver such services Seal has retained them to provide, and they are prohibited from using Licensee Data for any other purpose. Seal remains responsible for such subcontractors’ compliance with the obligations set forth in this Agreement. - Seal shall be entitled to block Licensee's access to the Services in the case of any actual or reasonably suspected violation by Licensee (or by any other person using Licensee’s Account) of applicable law or the terms of the Agreement until such condition has been permanently resolved. The Licensee's obligation to make payment remains in force during this period.
- GENERAL PROVISIONS
- As between Licensee and Seal, Licensee assumes full responsibility for the content of all documents and other materials that it uploads to the Seal Cloud Services, and for identifying and obtaining any third-party and/or governmental permissions and clearances that may be necessary for such documents and materials to be processed by the Software or furnished to Seal in connection with such processing. Licensee represents and warrants to Seal that: (a) such documents and materials do not and will not include any information that is subject to export controls, security classification, or other governmental restrictions (unless Licensee has obtained all licenses and/or clearances needed to disclose the same to Seal for purposes of this Agreement); and (b) the transmission and processing of such documents and materials as described in this Agreement or Seal’s applicable Documentation will not violate any laws or regulations, nor infringe or misappropriate any third-party intellectual property rights, that pertain to such documents or materials. Licensee will indemnify Seal against any claims or liability arising from any breach of the foregoing representation or warranty.
- Licensee agrees to comply with all applicable export statutes and regulations and not to permit any third party to use the Services, Software or Deliverables in violation of such export statutes and regulations. Because the materials furnished hereunder may be subject to United States and/or other countries’ export controls, Licensee shall not export or "re-export" (transfer) those materials except in full compliance with all applicable U.S. and other export controls.
- The Services are "commercial computer software" and "commercial computer software documentation," as those terms are used in applicable provisions of the Federal Acquisition Regulation and any supplement thereto. The United States Government's rights with respect to the Services, Software, Deliverables and Documentation are limited by the terms of this Agreement.
- If any provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the Parties will in good faith agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the Parties fail to agree on such an amendment, the invalid provision will be severed from the remaining provisions, which will continue to be valid and enforceable to the fullest extent permitted by applicable law.
- This Agreement shall be governed and construed in accordance with the laws of the State of New York, without regard to its conflict of laws provisions. All disputes, claims and controversies under or in relation to this Agreement that are not amicably resolved between the Parties (each, a “Dispute”) will be resolved exclusively in the federal and/or state courts located in the State of New York. The Parties irrevocably consent to personal jurisdiction in such courts and waive any challenges to exclusive venue therein for any Dispute. The prevailing Party in any Dispute will be entitled to recover its reasonable attorney fees and costs from the other Party. The United Nations Convention on Contracts for the International Sale of Goods shall not be applicable to this Agreement. Notwithstanding anything to the contrary herein, the Parties acknowledge and agree that either Party’s breach of Section 9, or Licensee’s breach of Section 5.3 or 5.4, could cause the other Party irreparable harm, and that the other Party shall be entitled to injunctive or other equitable relief, in any court of competent jurisdiction, to prevent or remedy any threatened or actual breach of those provisions.
- This Agreement supersedes all prior agreements, arrangements and understandings between the Parties and constitutes the entire agreement between the Parties relating to the subject matter hereof. No addition to or modification of any provision of this Agreement shall be binding unless made by a written instrument signed by a duly authorized representative of each Party. The headings and clauses of this Agreement appear for ease of reference only and shall not affect the interpretation or effect of this Agreement. It is expressly agreed that the terms of this Agreement and any Order Form, including any Statements of Work, shall supersede the terms in any purchase order of Licensee and no terms in such purchase order shall apply to the Services, Software or Professional Services ordered, regardless of any failure of Seal to object to such terms. In the event of any inconsistencies between the terms of the Seal Terms of Service and any terms set out in an Order Form and/or Statement of Work, the terms of the Order Form and/or SOW shall control.
- Each Party understands and agrees that it is at all times and shall remain an independent contractor in the performance of its duties under this Agreement and neither Party shall be considered an agent, employee, partner or legal representative of the other Party for any purpose whatsoever.
- This Agreement may not be assigned by either Party without the written consent of the other Party, except that either Party may assign (a) its rights and obligations under this Agreement to the successor in interest or title to all or substantially all of that part of the business or assets to which this Agreement relates as long as the assignee of such rights and obligations is not a competitor of the non-assigning Party and/or (b) its right to receive fees or payments hereunder. Any attempted assignment in violation of the foregoing will be void.
- All notices shall be sent to the recipient’s address set forth on the Order Form (or such updated address as the recipient may have provided by notice to the sending Party). In the case of Seal, a copy of each notice shall also be sent to legal@docusign.com. Any notice, request, instruction, or other document to be given under this Agreement shall be in writing and shall be deemed given when mailed by certified or registered mail or public courier service, with return receipt or other confirmation of delivery requested, postage prepaid.
- Any waiver of the provisions of this Agreement or of any of the rights of either Party must be in made in writing by the waiving Party to be effective. Failure or delay to enforce any such provisions of rights will not be construed as a waiver and will not affect the validity (in whole or in part) of this Agreement or prejudice such party's right to take subsequent action.
- Seal will not be in breach of this Agreement if its performance is prevented or delayed for circumstances beyond its reasonable control, including but not limited to acts of God, inclement weather, flood, lightning or fire, strikes or other labor disputes or industrial action, act or omission of government or other competent authority, terrorism, war, riot, or civil commotion, unavailability of supply or power outage, hackers, viruses, disruption in transmission, or disruption in telecommunications service (“Force Majeure Event”). Obligations to pay are excused only to the extent that payments are entirely prevented by the Force Majeure Event.
- UPDATES AND COMMUNICATIONS
- Seal may revise this Agreement or any additional terms and conditions which are relevant to the Services from time-to-time to reflect changes in the law or to the Services. Seal will post the revised terms on the site with a “last updated” date. PLEASE REVIEW THE SITE ON A REGULAR BASIS TO OBTAIN TIMELY NOTICE OF ANY REVISIONS. IF LICENSEE CONTINUES TO USE THE SERVICES AFTER THE REVISIONS TAKE EFFECT, LICENSEE AGREES TO BE BOUND BY THE REVISED TERMS. Licensee agrees that Seal shall not be liable to Licensee or to any third party for any modification of the Agreement.