DocuSign, Inc. DocuSign Signature Corporate Subscriber Terms And Conditions
DOCUSIGN SIGNATURE CORPORATE SUBSCRIBER
TERMS AND CONDITIONS
These Terms and Conditions, including an Order Form (collectively, the “Agreement”) entered into by DocuSign, Inc., a Delaware corporation, with offices at 221 Main Street, Suite 1000, San Francisco, CA 94105 U.S.A. (“DocuSign”) and the Subscriber identified on the Order Form (“Subscriber”) govern the use of the DocuSign Signature subscription service. This Agreement becomes effective on the Order Start Date specified on the Order Form (“Order Start Date”). By signing the Order Form, each party agrees as follows:
“Account” means a unique account established by Subscriber to enable its Authorized Users to access and use DocuSign Signature.
“Authorized User” means any employee or agent of Subscriber, identified by a unique email address and user name, who is registered under the Account, provided that no two persons may register or use DocuSign Signature as the same Authorized User.
“DocuSign API” means the application programming interface that supports interoperation of applications with DocuSign Signature.
“DocuSign Signature” means DocuSign’s on-demand electronic signature service, which provides online display, certified delivery, acknowledgement, electronic signature, and storage services for eContracts via the Internet.
“eContract” refers to a contract, notice, disclosure, or other record or document deposited into the System by Subscriber for processing using DocuSign Signature.
“Electronic Transactions Laws” means the Electronic Transactions Act 1999 (Cth) and equivalent State and Territory legislation.
“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.
“Order Form” means the schedule that sets forth the pricing, features and options of DocuSign Signature selected by Subscriber. An Order Form is not binding until it is duly executed by both DocuSign and Subscriber, at which point it becomes incorporated into and part of the Agreement.
“Personal Information” has the meaning set out in section 6(1) of the Privacy Act.
“Privacy Act” means the Privacy Act 1988 (Cth).
“Professional Services” means any integration consulting or assistance, custom development, training, transition and similar ancillary services that are set forth in an Order Form or Statement of Work as described in Section 13 through 16.
“Specifications” means the DocuSign Signature specifications and software requirements set forth in the DocuSign Signature specifications available at http://www.docusign.com/company/specifications.
“Statement of Work” or “SOW” also referred to as a Work Order, means a statement of work for Professional Services as further described in Section 13 through 16 of this Agreement.
“System” refers to the software systems and programs, the communication and network facilities, and the hardware and equipment used by DocuSign or its agents to provide the DocuSign Signature service.
“Transaction Data” means the metadata associated with an Envelope (such as transaction history, image hash value, method and time of Envelope deletion, sender and recipient names, email addresses and signature IDs) and maintained by DocuSign in order to establish the digital audit trail required by DocuSign Signature.
2. DOCUSIGN SIGNATURE
2.1 During the Term and subject to these Terms and Conditions, Subscriber will have the right to obtain an Account and register its Authorized Users, who may access and use DocuSign Signature, and DocuSign will provide the DocuSign Signature service in accordance with the Specifications. The right to use DocuSign Signature is limited to the Authorized Users, and Subscriber may not resell or otherwise provide or assist with the provision of DocuSign Signature for the benefit of another party or as a part of a service Subscriber offers to third parties or as a sublicensed arrangement.
2.2 DocuSign will provide customer support to Subscriber in accordance with the package that is identified on the Order Form, as further detailed at http://www.docusign.com/products/support-plans.
3. SUBSCRIBER RESPONSIBILITIES
3.1 DocuSign’s provision of the DocuSign Signature service is conditioned on Subscriber’s acknowledgement of and agreement to the following:
(i) Subscriber is responsible for all activities that occur in Subscriber’s Account and for ensuring that use of DocuSign Signature complies with this Agreement;
(ii) DocuSign Signature facilitates the execution of eContracts between the parties to those eContracts. Nothing in this Agreement may be construed to make DocuSign a party to any eContract processed through DocuSign Signature, and DocuSign makes no representation or warranty regarding the transactions sought to be effected by any eContract;
(ii) Between DocuSign and Subscriber, Subscriber has exclusive control over and responsibility for the content, quality, and format of any eContract. All eContracts stored by DocuSign on the System are maintained in an encrypted form, and DocuSign has no control of or access to their contents;
(iii) If Subscriber elects to use one or more of the optional features designed to verify the identity of the intended recipient of an eContract that DocuSign makes available to its subscribers (“Authentication Measures”), DocuSign will apply only those Authentication Measures selected by the Subscriber, but makes no representations or warranties about the appropriateness of any Authentication Measure. Further, DocuSign assumes no liability for: (A) the inability or failure by the intended recipient or other party to satisfy the Authentication Measure; or (B) the circumvention by any person (other than DocuSign) of any Authentication Measure;
(iv) Certain types of agreements and documents may be excepted from electronic signature laws (e.g. wills and agreements pertaining to family law), or may be subject to specific regulations promulgated by various government agencies regarding electronic signatures and electronic records. DocuSign is not responsible or liable to determine whether any particular eContract is subject to an exception to applicable electronic signature laws, or whether it is subject to any particular agency promulgations, or whether it can be legally formed by electronic signatures;
(v) DocuSign is not responsible for determining how long any contracts, documents, and other records are required to be retained or stored under any applicable laws, regulations, or legal or administrative agency processes. Further, DocuSign is not responsible for or liable to produce any of Subscriber’s eContracts or other documents to any third parties;
(vi) Between Subscriber and DocuSign, Subscriber is solely responsible for the nature and content of all materials, works, data, statements, and other visual, graphical, video, and written or audible communications submitted by any Authorized User or otherwise processed through its Account, DocuSign Signature, or under any Order Form;
(vii) Certain consumer protection or similar laws or regulations may impose special requirements with respect to electronic transactions involving one or more “consumers,” such as (among others) requirements that the consumer consent to the method of contracting and/or that the consumer be provided with a copy, or access to a copy, of a paper or other non-electronic, written record of the transaction. DocuSign does not and is not responsible to: (A) determine whether any particular transaction involves a “consumer;” (B) furnish or obtain any such consents or determine if any such consents have been withdrawn; (C) provide any information or disclosures in connection with any attempt to obtain any such consents; (D) provide legal review of, or update or correct any information or disclosures currently or previously given; (E) provide any such copies or access, except as expressly provided in the Specifications for all transactions, consumer or otherwise; or (F) otherwise comply with any such special requirements; and
(viii) Subscriber undertakes to determine whether any “consumer” is involved in any eContract presented by its Authorized Users for processing, and, if so, to comply with all requirements imposed by law on such eContracts or their formation.
3.2 Subscriber may not store, transmit, upload or share through DocuSign Signature any files or otherwise engage in any conduct that:
(i) 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 DocuSign Signature);
(ii) involves uploading, posting, emailing, transmitting or otherwise making available content or data that Subscriber does not have the right to make available under any law or under contractual or fiduciary relationships (such as insider information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements, etc.);
(iii) involves sending unsolicited mass mailings outside its organization. The term “unsolicited mass mailings” includes all statutory or common definitions or understanding of those terms in the applicable jurisdiction, such as those set forth for “Commercial Electronic Mail Messages” under the U.S. CAN-SPAM Act, as an example only;
(iv) is likely to damage, disable, overburden, or impair the System or DocuSign Signature or otherwise interfere with the use or enjoyment of DocuSign Signature by others;
(v) contains viruses or any other computer code, files or programs that interrupt, impair, destroy or otherwise limit in any way the functionality of any computer software or hardware or telecommunications equipment, or otherwise permit the unauthorized use of a computer or computer network;
(vii) in any way that constitutes or encourages conduct that could constitute a criminal offense.
3.3 DocuSign does not monitor the content processed through DocuSign Signature, but in accordance with DMCA (Digital Millennium Copyright Act) safe harbors, it may suspend any use of DocuSign Signature, or remove or disable any content that DocuSign reasonably and in good faith believes violates this Agreement or applicable laws or regulations. DocuSign will use commercially reasonable efforts to notify Subscriber prior to any such suspension or disablement, unless DocuSign reasonably believes that:
(i) it is prohibited from doing so under applicable law or under legal process, such as court or government administrative agency processes, orders, mandates, and the like; or
(ii) it is necessary to delay notice in order to prevent imminent harm to the System, DocuSign Signature, or a third party. Under circumstances where notice is delayed, DocuSign will provide the notice if and when the related restrictions in the previous sentence no longer apply.
4. INFORMATION SECURITY AND PERSONAL INFORMATION
4.1 The Subscriber shall own all rights, title and interest in and to all of the Personal Information disclosed to DocuSign in connection with the Subscriber’s use of DocuSign Signature and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Personal Information.
4.2 DocuSign shall not be responsible for any loss, destruction, alteration or disclosure of Personal Information caused by any third party.
4.3 Without limiting any of the obligations set forth in this Section 4, each party must:
(i) comply with the Privacy Act (including the Australian Privacy Principles as set out in the Privacy Act); and
(ii) not do, or omit to do, anything that would result in the other party breaching the Privacy Act.
4.4 If DocuSign processes any Personal Information on the Subscriber’s behalf when performing its obligations under this Agreement:
(i) the Subscriber acknowledges and agrees that the Personal Information may be disclosed or stored outside Australia or the country where the Subscriber and the Authorized Users are located in order to provide DocuSign Signature.;
(ii) the Subscriber shall ensure that the Subscriber is entitled to disclose the relevant Personal Information to DocuSign so that DocuSign may lawfully use, process and disclose the Personal Information in accordance with this Agreement on the Subscriber's behalf;
(iii) the Subscriber shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and disclosure by DocuSign as required under the Privacy Act;
(iv) DocuSign shall process the Personal Information only in accordance with this Agreement and any lawful instructions reasonably given by the Subscriber from time to time;
(v) each party shall take appropriate technical and organizational measures against the unauthorized access, modification or disclosure of the Personal Information or its misuse, interference or accidental loss; and
4.5 DocuSign is ISO 27001 certified, SSAE 16 examined and tested, PCI DSS compliant as both a service provider and a merchant (collectively, “Information Security Safeguards”), and during the Term of this Agreement, DocuSign agrees to annually provide evidence of such Information Security Safeguards upon Subscriber’s written request.
5.1 DocuSign owns various intellectual property and technology rights associated with DocuSign Signature, its document management, digital signature and notary system. Subscriber’s rights with respect to the foregoing are limited to the right to use DocuSign Signature that is granted under this Agreement or the applicable Order Form for the purposes contemplated by this Agreement, and no other. DocuSign does not license or transfer to Subscriber, or any Authorized User or other third party, any of DocuSign’s technology or other intellectual property rights. All right, title, and interest in and to DocuSign’s technology and intellectual property, whether patent, copyright, trade secret, trademark, service mark or moral rights, remain solely with DocuSign at all times. Subscriber will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from or about DocuSign Signature or other DocuSign technologies.
5.2 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, as long as the Licensed Marks are used strictly in compliance with DocuSign’s trademark license terms and conditions, available at: http://www.docusign.com/IP.
5.3 Data and information owned by Subscriber that is processed using DocuSign Signature is and will remain, as between Subscriber and DocuSign, owned by Subscriber.
5.4 Subscriber hereby assigns to DocuSign all right, title, and interest in and to any recommendations, suggestions, enhancement requests or other feedback provided by Subscriber to DocuSign concerning DocuSign products and/or services (“Feedback”), and DocuSign is free to make unrestricted use of the Feedback without any necessity of payment to Subscriber. Subscriber also agrees that it will not publish, submit, or display feedback submitted by Subscriber or its Authorized Users to or on any other web site or in any other publicly accessible forum without DocuSign's prior written consent.
6. eCONTRACT STORAGE AND DELETION
6.1 Subscriber may retrieve copies of its stored eContracts at any time while this Agreement is in effect. DocuSign will store all completed eContracts sent by Subscriber during the Term, by default. However, Subscriber has the option to change its Account settings to direct the deletion of all or certain designated eContracts at an earlier date or periodic interval. If Subscriber fails to retrieve its eContracts prior to the expiration or termination of the Agreement, Subscriber may request, within 90 days after such expiration or termination, that DocuSign provide Professional Services to assist in retrieving completed eContracts still remaining on the System, the details of which Professional Services will be set out in a SOW. After such 90 day period, DocuSign shall have no obligation to maintain or provide any eContracts and DocuSign shall have the right to delete all eContracts in the System or otherwise in its possession or under its control and delete Subscriber’s Account.
6.2 Prior to the end of the Term, if Subscriber wishes to extend the period of time DocuSign stores Subscriber’s eContracts after the end of the Term, it may elect to purchase post-expiration or post-termination storage services for its completed eContracts.
6.3 DocuSign may retain the Transaction Data for as long as it has a business purpose to do so, provided that any Transaction Data that constitutes Confidential Information of Subscriber will at all times maintain that status, and DocuSign will comply with its confidentiality obligations as provided in Section 11.
7. FEES AND PAYMENT TERMS
7.1 The Subscription Service is sold on the basis of a prepaid subscription, which is subject to a Seat Allowance and an Envelope Allowance, each as set forth in the applicable Order Form.
(i) “Seat Allowance” means the maximum number of Authorized Users that Subscriber may have active in its Account. For purposes of determining usage of Seats:
a. The number of Seats in use is determined by the total number of Authorized Users registered in Subscriber’s Account with access to the Subscription Service at any time during the Term.
b. No two individuals may log onto or use the Subscription Service as the same Authorized User, but Subscriber 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 does not exceed the number of Seats purchased.
(ii) “Envelope Allowance" means the cumulative number of Envelopes that may be sent by Authorized Users registered in Subscriber’s Account. There is no individual limit on number of Envelopes that may be sent by each Authorized User, so long as the total volume sent by all Authorized Users does not exceed the Envelope Allowance. For purposes of calculating Envelope usage:
An Envelope is consumed when sent by an Authorized User, regardless of whether the Envelope has been received by any recipients or whether any recipients have performed any actions upon any eContract in the Envelope;
Usage of a Powerform will be applied against the Envelope Allowance. A PowerForm will be deemed consumed at the time it is accessed by any user regardless of whether any actions are subsequently performed upon such Envelope. “Powerform” means an Envelope that may be accessed and completed by accessing a hyperlink (i.e. which does not need to be individually sent to each recipient); and
An Envelope sent via bulk send or automated batch sending, including through a DocuSign API, will be applied against the Envelope Allowance.
(iii) Calculation of Envelope Allowance. Unless otherwise set forth in the Order Form, the Envelope Allowance is calculated by [the amount of the Seat Allowance] multiplied by [one hundred (100)] for each 12 month period during the Order Term. For example, a three year subscription for 10 Seats would result in an Envelope Allowance of 1000 Envelopes per year. An Envelope Allowance may be augmented by purchasing additional Seats (each of which supply an additional 100 Envelopes unless otherwise set forth in the Order Form) or additional batches of Envelopes, pursuant to an Order Form.
Seats. If Subscriber adds more Authorized Users than the amount permitted under the Seat Allowance then additional charges of one Seat per additional Authorized User for the remainder of the Order Term will become immediately due and payable. Additional Seats will be charged as a pro-rata portion (calculated based on the amount of time remaining in the Order Term) of the then-current list price for Seats under the applicable subscription type, or such other amount as is specified in the Order Form, and will include a pro-rata allocation of Envelopes.
Envelopes. All Envelopes used in excess of the Envelope Allowance during the Term will incur a per-Envelope overage charge at the then-current list price for the applicable subscription type, or such other amount as is specified in the Order Form. Envelope overage charges will be invoiced monthly in arrears.
(v) Optional features, such as Authentication Measures or fax-back services, may be purchased on a subscription or per-use basis, as set out in the Order Form.
7.2 Subscriber will be invoiced as set forth in the Order Form. Unless otherwise specified in an applicable Order Form, the first invoice will coincide with the Order Start Date and, unless otherwise agreed by the parties, all amounts will be denominated in U.S. dollars. DocuSign may assess finance charges equal to the lesser of 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law. Subscriber will be responsible for any reasonable attorneys’ fees, costs and expenses incurred by DocuSign to collect any amounts that are not paid when due.
7.3 DocuSign may accept any partial payment, regardless of any language that would purport to limit DocuSign’s rights to collect further amounts, and without prejudice to DocuSign’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due to DocuSign may not be withheld or offset by Subscriber for any reason against amounts due or asserted to be due to Subscriber from DocuSign. If Subscriber fails to timely pay any undisputed amounts due under this Agreement, then without limitation of any of its other rights or remedies, DocuSign may suspend performance of those services until DocuSign receives all past due amounts from Subscriber.
7.4 Other than income taxes imposed on DocuSign, Subscriber will bear all taxes, duties, VAT and all other governmental charges (collectively, “taxes”) resulting from this Agreement or transactions conducted in relation to this Agreement or DocuSign Signature. If Subscriber is exempt from any applicable taxes, it will provide evidence reasonably satisfactory to DocuSign of its tax exempt status, and DocuSign will not include such taxes in its invoices to Subscriber.
8. TERM AND TERMINATION
8.1 The term of this Agreement will begin on the Order Start Date and, unless terminated sooner as provided herein, will continue until the Order End Date specified on the Order Form (the “Term”). Prior to the Order Start Date and with mutual agreement by the parties, DocuSign may, in its sole discretion, start providing Professional Services and/or access to DocuSign Signature to Subscriber, which will be governed by these Terms and Conditions. If either party commits a material breach or default 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, unless the material breach or default in performance is cured within 30 days after the defaulting party receives notice thereof.
8.2 Post-Termination Obligations. If this Agreement expires or is terminated for any reason: (a) Subscriber will pay to DocuSign any amounts that have accrued before, and remain unpaid as of, the date of the termination or expiration; (b) any and all liabilities between the parties under this Agreement that have accrued before the effective date of the termination will survive; (c) licenses and use rights granted to Subscriber with respect to DocuSign Signature and DocuSign’s intellectual property licensed under this Agreement will immediately terminate; (d) DocuSign’s obligation to provide any further services to Subscriber under this Agreement will immediately terminate; and (e) the parties’ rights and obligations under Sections 1, 4, 6.1, 6.3, 8.2, 9.3, and 11 through 12 will survive.
9. WARRANTIES AND DISCLAIMERS
9.1 DocuSign Warranties. DocuSign and warrants that: (a) the Subscription Service, as delivered to Subscriber 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 Subscription Service will be performed in accordance with the Specifications in their then-current form at the time of the provision of such Subscription Service; (c) DocuSign Signature will not introduce files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses (“Malicious Code”) into Subscriber's system; and (d) DocuSign has implemented information security policies and safeguards to preserve the security, integrity, and confidentiality of eContracts and to protect against unauthorized access and anticipated threats or hazards thereto, including having achieved ISO/IEC 27001 (international standards for information security management).
9.2 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 it in accordance with its terms; (b) no authorization or approval from any third party is required in connection with its 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.
9.3 Disclaimer. Except for the express representations and warranties stated in this Section 9, DocuSign: (a) makes no additional representation or warranty of any kind -- whether express, implied in fact or by operation of law, or statutory -- as to any matter whatsoever; (b) disclaims all implied warranties of merchantability and fitness for a particular purpose and the like; and (c) does not warrant that DocuSign Signature is or will be error-free or meet Subscriber’s requirements. Subscriber has no right to make or pass on any representation or warranty on behalf of DocuSign to any third party.
10. LIMITATIONS OF LIABILITY
10.1 Disclaimer of Consequential Damages; Cap on Damages. Excluding each confidentiality obligations under Section 11:
(i) neither party will 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, but not limited to, lost profits or loss of business, even if apprised of the likelihood of such losses; and
(ii) neither party’s total aggregate liability of any kind arising out of or relating to this Agreement, regardless of the forum and basis of action or claim (contract, tort, or otherwise), will exceed the total amount payable by Subscriber to DocuSign under the Order Form and/or SOW to which the liability relates.
10.2 Independent Allocations of Risk. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of this Agreement between the parties. This allocation is reflected in the pricing offered by DocuSign to Subscriber 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.
11.1 “Confidential Information” means any trade secrets or other information of DocuSign or Subscriber, whether of a technical, business, or other nature (such as DocuSign's software or Subscriber’s eContracts), that is disclosed to the other party (the “Recipient”) and that is marked “confidential,” or, whether or not marked, that a reasonable person would understand to be confidential given the circumstances of the disclosure. Confidential Information does not include any information that: (a) was known to Recipient before receiving it from the disclosing party; (b) is independently developed by Recipient without use of or reference to any Confidential Information of the other party; (c) is acquired by Recipient from another source that did not receive it in confidence from the other party to this Agreement; or (d) is or becomes part of the public domain through no fault or action of Recipient.
11.2 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, except on a need-to-know basis to its attorneys, auditors and consultants who are under confidentiality obligations at least as restrictive as contained herein; 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.
11.3 Required Disclosure. If Recipient is required by law to disclose Confidential Information of the other party or the terms of this Agreement, Recipient will give prompt written notice to the other party before making the disclosure, unless prohibited from doing so by the legal or administrative process, and assist the disclosing party to obtain where reasonably available an order protecting the Confidential Information from public disclosure.
11.4 Ownership. Recipient acknowledges that, as between the parties, all Confidential Information it receives from the disclosing party, including all copies thereof in Recipient’s possession or control, in any media, is proprietary to and exclusively owned by the disclosing party. Nothing in this Agreement grants Recipient any right, title or interest in or to any of the disclosing party’s Confidential Information. Recipient’s incorporation of the disclosing party’s Confidential Information into any of its own materials will not render Confidential Information non-confidential.
11.5 Remedies. Recipient acknowledges that any actual or threatened breach of this Section 11 may cause irreparable, non-monetary injury to the disclosing party, the extent of which may be difficult to ascertain. Accordingly, the disclosing party is entitled to (but not required to) seek injunctive relief in addition to all remedies available to the disclosing party at law and/or in equity, to prevent or mitigate any breaches of this Agreement or damages that may otherwise result from those breaches. Absent written consent of the disclosing party to the disclosure, the Recipient, in the case of a breach of this Section 11, has the burden of proving that the disclosing party’s Confidential Information is not, or is no longer, confidential or a trade secret and that the disclosure does not otherwise violate this Section 11.
11.6 Existing Obligations. The obligations in this Section 11 are in addition to, and supplement, each party’s obligations of confidentiality under applicable law and under any nondisclosure or other agreement between the parties.
12.1 Relationship. At all times, the parties are independent actors, and are not the agents or representatives of the other. This Agreement is not intended to create a joint venture, partnership, or franchise relationship, or give rise to any third party beneficiary.
12.2 Assignability. Subscriber may not assign its rights or obligations under this Agreement without DocuSign’s prior written consent. If consent is given, this Agreement will bind Subscriber’s successors and assigns. Notwithstanding the foregoing, either party may assign this Agreement to a purchaser of its business entity or substantially all of its assets without the other party’s consent, as long as the purchaser is not insolvent or otherwise unable to pay its debts as they become due. Other than the foregoing, any attempt by Subscriber to transfer its rights or obligations under this Agreement will be void.
12.3 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective only if it is in writing and sent using: (a) DocuSign Signature; (b) by certified or registered mail; or (c) insured courier, to the appropriate party at the address set forth on the Order Form, with a copy, in the case of DocuSign, to [email protected]. Either party may change its address for receipt of notice by notice to the other party through a notice provided in accordance with this Section. Notices are deemed given upon receipt if delivered using DocuSign Signature, two business days following the date of mailing, or one business day following delivery to a courier.
12.4 Force Majeure. Except for any payment obligations, neither party will be liable for failure to perform any obligation under this Agreement to the extent such failure is caused by a force majeure event (including acts of God, natural disasters, war, civil disturbance, action by governmental entity, strike and other causes beyond the party’s reasonable control). The party affected by the force majeure event will provide notice to the other party within a commercially reasonable time and will use commercially reasonable efforts to resume performance as soon as practicable. Obligations not performed due to a force majeure event will be performed as soon as reasonably possible when the force majeure event concludes.
12.5 Dispute Resolution. Subject to Section 12.6 and as a condition precedent to the commencement of any litigation, 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:
(i) 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 Subscriber shall attempt in good faith to resolve the Dispute;
(ii) 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
(iii) if the senior managers are for any reason unable to resolve the Dispute within 14 days of it being referred to them, the parties agree to refer the Dispute to mediation administered by the Australian Commercial Disputes Centre (“ACDC”). The mediation must be conducted in accordance with the ACDC Guidelines for Commercial Mediation (“Guidelines”) in force at the date of this Agreement. The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved, including the parties’ respective responsibilities for the payment of the mediator’s costs and other costs of the mediation. Annexed at schedule 1 of the Guidelines is the ACDC Mediation Appointment Agreement which is expressly incorporated in the Guidelines. The Guidelines, including the ACDC Mediation Appointment Agreement, are incorporated in this Agreement.
12.6 Urgent Interlocutory Relief. At any time, a party may, without inconsistency with Section 12.5, seek urgent interlocutory relief in respect of the subject matter of the Dispute from any court having jurisdiction.
12.7 Governing Law and Jurisdiction. This Agreement is governed by the laws of New South Wales, Australia, and both Subscriber and DocuSign agree to submit to the non-exclusive jurisdiction of the New South Wales 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 arising under this Agreement must be initiated within two years after the cause of action arises. 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.
12.8 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.
12.9 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the grant of any license to Subscriber under this Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate.
12.10 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.
ADDITIONAL TERMS AND CONDITIONS FOR PROFESSIONAL SERVICES
The following additional terms and conditions apply to Professional Services, if any, that are made the subject of an Order Form.
13. SERVICES, STATEMENT OF WORK, AND CHANGE ORDERS
13.1 Services. If and as set out in a SOW, and subject to the terms and conditions of this Agreement, DocuSign will perform certain Professional Services for Subscriber.
13.2 SOW. The specific details of the Professional Services to be performed will be determined on a per-project basis, and the details for each project will be described in a SOW that is executed by both parties. To the extent that an Order Form includes a standard training or consulting package, such Order Form will constitute a SOW. Once executed by both parties, each SOW will be a unique agreement that incorporates the terms of this Agreement and stands alone with respect to all other SOWs and Order Forms. In the event of any inconsistency or conflict between the Agreement and a SOW, the terms of the SOW shall control with respect to the services set forth therein. The terms of the SOW are limited to the scope of the particular SOW and shall not be applicable to any other SOWs that may be executed between the parties.
14. PERFORMANCE OF PROFESSIONAL SERVICES
14.1 Fees; Project Management. Subscriber will pay DocuSign for Professional Services at rates and under payment terms described in the applicable SOW (“Professional Fees”). Unless otherwise agreed in the applicable SOW, Professional Fees will be invoiced in total on the Effective Date of the SOW (or on the Order Start Date in the case of an Order Form). For each project described in a SOW, each party will designate a single point of contact within its organization to manage the project (“Project Manager”). The Project Managers will communicate as necessary to manage the Professional Services to be performed under a SOW.
14.2 Performance Standard. DocuSign warrants to Subscriber that the Services will be performed in a competent and workmanlike manner in accordance with accepted industry standard practice and the SOW. Subscriber’s exclusive remedy for breach of this warranty is to notify DocuSign in writing within thirty (30) days of the non-conforming Professional Services. Upon receipt of such notice, DocuSign, at its option, will either use commercially reasonable efforts to re-perform the Professional Services in conformance with these warranty requirements or will terminate the affected Professional Services and will refund Subscriber the prorated amount of fees for the unperformed Professional Services. This Section 14.2 sets forth Subscriber’s exclusive rights and remedies and DocuSign’s sole liability in connection with the performance of the Professional Services.
15. TERM AND TERMINATION OF SOW
Each SOW will commence on the specified effective date and will continue until each party’s obligations under the SOW have been fulfilled or the SOW is terminated as provided in the SOW. If any SOW is terminated in accordance with terms contained in the applicable SOW, then Subscriber will pay to DocuSign any Professional Fees and all other payment obligations accrued and payable for the Professional Services performed under the terminated SOW through the effective date of the termination.
16. PROFESSIONAL SERVICE PRODUCT LICENSING
16.1 Proprietary and Intellectual Rights. “Proprietary and Intellectual Property Rights” means, with respect to any material (hereinafter, a “Work”): (i) all patents, copyrights, trademarks, trade secrets and any other intellectual property or proprietary rights and legal protections worldwide in and to such Work including but not limited to all rights under treaties, conventions, applications and registrations related to any of the foregoing; (ii) all applications, registrations and rights to make applications and registrations for the foregoing; (iii) all renewals, extensions, reversions or restorations of all of the foregoing; (iv) all goodwill associated with the Work; (v) all rights corresponding to each of the foregoing throughout the world, including but not limited to the right to duplicate, reproduce, copy, distribute, publicly perform, display, license, adapt, or prepare derivative works from the Work; (vi) all causes of action for infringement based on the Work or for other violations of any of the foregoing; and (vii) all income, royalties, damages, claims, and payments now or hereafter due or payable with respect to any of the foregoing.
16.2 Subscriber Materials. Any non-DocuSign materials provided by Subscriber to DocuSign for use by DocuSign in the course of performing Professional Services under A SOW (“Subscriber Materials”) will be used by DocuSign solely to perform the Professional Services under a SOW. As between the parties, Subscriber will continue to own the Subscriber Materials and all Proprietary and Intellectual Property Rights therein and thereto.
16.3 Ownership. Except for Subscriber Materials, as between the parties, all of the following, and all Proprietary and Intellectual Property Rights therein and thereto, are and shall be the sole property of DocuSign: (a) any software provided to Subscriber under a SOW and components thereof; and (b) all other works of authorship, inventions, discoveries, improvements, methods, processes, formulas, designs, techniques, and information conceived, discovered, developed or otherwise made in whole or part by DocuSign, whether as part of DocuSign’s performance of the Professional Services under a SOW or otherwise.
16.4 License Grant. Effective only as of final payment by Subscriber to DocuSign of all amounts required by a SOW, and subject to the terms and conditions of the SOW and the Agreement, including the additional restrictions and conditions in a DocuSign Software License Agreement (“Software License Agreement”) in a` SOW, DocuSign grants to Subscriber a nonexclusive, perpetual, worldwide, royalty-free license to use software provided to Subscriber under the SOW, solely for purposes of Subscriber’s internal business operations only. This license includes permission to make copies of the provided software for such internal use but not permission to distribute the software or any copies of them. Subject to the terms of Section 12.2 herein, the license granted to Subscriber in this Section 16 is not sublicenseable, assignable or transferable, by operation of law or otherwise, without the advance written consent of DocuSign. Any purported sublicenses, assignments or transfers in violation of this Section 16 will be void. The SOW provides no other license or grant of rights to Subscriber. Any software provided to Subscriber under a SOW is licensed, not sold.
16.5 In the event of any inconsistency or conflict between the Software License Agreement and the rest of this SOW, the provision that is more restrictive of Subscriber’s license rights or more protective of DocuSign shall govern.
16.6 A SOW does not obligate DocuSign to update or provide support for any software provided to Subscriber under the SOW after delivery to Subscriber. Regardless of the extent to which the software may relate to other DocuSign products or services, the SOW does not limit or condition DocuSign’s ability to discontinue, update or otherwise modify such other products or services in any manner, including in ways that render the software unusable, inaccurate or otherwise inappropriate.