Terms and Conditions for DocuSign Appliance Subscription Services

These Terms and Conditions and attachments thereof govern the use of DocuSign Signature Appliance and DocuSign HSM Appliance services (collectively now referred to as “Appliance Subscription Service”) purchased on an Order Form (collectively, the “Agreement”) entered into by DocuSign, Inc., a corporation organized under the laws of the State of Delaware, with its principal place of business located at 221 Main Street Suite 1000, San Francisco, CA 94105 (“DocuSign”) and the Customer identified on the Order Form (“Customer”).  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:

1.      DEFINITIONS.  Capitalized terms not defined in this Section 1 are as defined in the Order Form.

“Automated Processing” means the processing of a Signature(s), Key Operation(s) or Data Hash operation(s), using automated operations or for the use of initiating a Signature, or Key or Data Hash operation through the use of the Appliance Subscription Service.

“Authorized User” means any employee or agent of Customer that has been issued a unique signing or key credential that can be authenticated by the Appliance Subscription Service under the Customer’s user-management policy.

“Appliance API” means the application(s) programming interface that supports interoperation of applications with the Appliance Subscription Service(s) and that are governed by the terms of the Appliance Subscription Services Developer Bundle License Agreement attached hereto as Attachment 1.

“Appliance Subscription Service(s)” means the Software and maintenance as subscribed to by Customer during the Term and subject to this Agreement, as indicated in the applicable Order Form(s) or Statement of Work. 

“Customer’s Application” means the Customer’s application, if any, described in the Order Form with which Appliance Subscription Service(s) shall be solely used.

“Data Hash” means data passed through a function that produces an integrity value for transmitted data, or data at rest for data verification.

“Developer License” means the Developer Bundle License set forth in Attachment 1.

“Documentation” means explanatory written materials or files that are provided by DocuSign or otherwise made available to Customer in connection with the Software.

“End of Life” or “EOL” means the point in which Equipment or Software, or versions of Equipment or Software are no longer offered by DocuSign for general commercial availability.

“Equipment” is the hardware that is used to run the Application Subscription Service Software.

“Key Operation” means data associated with a key-usage request, including data encryption or decryption requests, hash value, associated application, and User’s identifying information under the Customer’s user-management policy and successful fulfillment of that request by the Appliance Subscription Service.

“Order Form” means the schedule that sets forth the pricing, features and options of the Appliance Subscription Service(s) selected by Customer.  An Order Form is not binding until it is duly executed by both DocuSign and Customer, at which point it becomes incorporated into and part of the Agreement. 

“Professional Services” means any integration consulting or assistance, training, transition and similar ancillary services that are set forth in an Order Form or Statement of Work as described in Section 11 through14.

“Seat” means an Authorized User activated to use the Appliance Subscription Service.  Customer may unregister or deactivate Authorized Users and replace them with other Authorized Users without penalty, so long as the number of active Authorized Users registered at any one time is equal to or less than the number of Seats subscribed.

“Signature” means data associated with a signature request, including date of request, hash value, associated application, and Signature party’s name, job title, email address, and the successful fulfillment of that request by the Appliance Subscription Service.  

“Software” means any and all software or firmware, including Updates and Upgrades thereof subscribed to and/or licensed by DocuSign to Customer under this Agreement as specified in an Order Form hereto and delivered to Customer, all as developed by or for DocuSign, Inc. and any of its affiliated companies.  

“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 11 through 14 of this Agreement.

“Technical Support” means the customer technical support services provided to Customer in accordance with Section 5.12 of this Agreement and the Technical Support Agreement attached hereto as Attachment 2.

“Third Party Software” means software or services that may be provided by DocuSign, its agents, or partners to Customer for use solely in conjunction with the Software that is created by a third party, and covered by different license or service terms.

“Update” means, with respect to any component of the Software, a new version that includes modifications, revisions or minor enhancements to the Appliance Subscription Service’s existing functionality to correct programming or design errors (designated by an increase in the release number to the right of the decimal point following the version previously supplied).

“Upgrade” or  “Major New Release” means a version of the Appliance Subscription Service, which incorporates additional functionality or features as compared with prior versions (designated by an increase in the release number to the left of the decimal point).

2.      TERM AND TERMINATION

2.1  Term.  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”). Except as specifically provided herein, the Agreement shall be non-cancellable during the Term.  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 capable of being cured within 30 days after the defaulting party receives notice thereof.

2.2   Customer may not cancel any order due to delay in delivery unless it (i) first provides DocuSign with written notice of the delay and its intent to cancel, and (ii) allows DocuSign an opportunity to complete shipment within sixty (60) days following receipt of Customer’s notice. DocuSign shall not be liable for any damages or penalty for delay in delivery or for failure to give notice of delay for any reason whatsoever.

2.3  Post-Termination Obligations.  If this Agreement expires or is terminated for any reason: (a) Customer 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 of Customer to DocuSign that have accrued before the effective date of the termination will survive; (c) licenses and use rights granted to Customer with respect to Appliance Subscription Service(s) and intellectual property will immediately terminate; (d) DocuSign’s obligation to provide any further services to Customer under this Agreement will immediately terminate; (e) Customer shall return or destroy, as DocuSign may direct, any and/or all Software, Documentation, and Developer Bundle and if so requested by DocuSign, deliver to DocuSign a certificate executed by one of its duly authorized officers confirming compliance with the return or destruction obligation; and (f) the parties’ rights and obligations under Sections 1, 6.7, 8, 9, 10, 13 and 14 will survive together with those Sections as set forth Attachment 1. Upon termination of this Agreement by DocuSign for Customer’s uncured material breach of this Agreement, Customer will be responsible for any costs and expenses incurred by DocuSign to recover any Equipment, Software and/or Documentation.  Upon termination of this Agreement by Customer for DocuSign’s uncured material breach of this Agreement, DocuSign will provide Customer with a prorated refund of prepaid subscription fees paid by Customer under the Order Form corresponding to the unused portion of the Term after the effective date of termination.

3.      FEES AND PAYMENT TERMS

3.1  Invoicing.  Customer 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 in writing, 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.  Customer will be responsible for any reasonable attorneys’ fees, costs and expenses incurred by DocuSign to collect any amounts that are not paid when due.

3.2  Payment.  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 Customer for any reason against amounts due or asserted to be due to Customer from DocuSign.  If Customer 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 Customer.

3.3  Taxes.  Other than income taxes imposed on DocuSign, Customer 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 the Appliance Subscription Service(s).  If Customer 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 Customer.

4.      SUBSCRIPTION PLANS AND USAGE PRICING. Appliance Subscription Service(s) is sold on the basis of an annual prepaid subscription, and may be limited by number of Signatures, Authorized User, Seat or other metrics or usage limitations as set forth in the Order Form.   

5.      SUBSCRIPTION SERVICE AND LICENSE.

5.1  Delivery of Equipment. Delivery of Equipment will be FCA Origin, Incoterms 2010. Unless otherwise specified in an applicable Order Form, during the subscription Term DocuSign will pay the freight for transportation of Equipment to Customer. Title transfers and Customer assumes all risk of loss upon delivery of the Equipment by DocuSign to a carrier at DocuSign’s premises. DocuSign will select the carrier but shall not be deemed thereby to assume any liability in connection with the shipment nor shall the carrier be an agent of DocuSign. Customer will be responsible for all storage drayage and other charges at Customer’s site.

5.2   DocuSign reserves the right, without prior approval from or notice to Customer, to make changes to Equipment (i) which do not adversely affect the performance of the Equipment or do not reduce performance below any contractually agreed to specification; (ii) when required for purposes of safety; or (iii) to meet Equipment specifications. DocuSign also reserves the right to make improvements to the Equipment without incurring any obligation or liability to make the same changes in Equipment previously manufactured.

5.3   Provision of Appliance Subscription Services.  Subject to the terms of this Agreement, Attachment 1 and the applicable licensing terms contained therein, DocuSign grants Customer a personal, non-exclusive, non-transferrable, revocable license to use the Equipment and Software to operate the Equipment in accordance with the Documentation. DocuSign will provide Appliance Subscription Service(s) in accordance with the Documentation. The right to use Appliance Subscription Service(s) is limited to the Authorized Users, and Customer may not resell Appliance Subscription Service(s) or use the Equipment with software other than the Software provided by DocuSign to Customer under this Agreement.  DocuSign hereby grants to Customer for the Term a non-exclusive, non-transferable license to copy and use the object code versions of the Software that will accompany the Equipment, for the purposes of (i) integrating Appliance Subscription Service(s) with Customer’s Application, (ii) using Appliance Subscription Service(s) for Customer’s Application with Equipment, and (iii) supporting Appliance Subscription Service(s).  No sublicensing rights are granted or implied. Title to the Appliance Subscription Service(s) Software shall at all times remain with DocuSign. 

5.4  Customer Obligations.  As a condition for this license, Customer shall (i) make all payments when due, (ii) grant DocuSign on-line access to the logs in Customer’s instance of the Appliance Subscription Service, (iii) cooperate with DocuSign’s requests to electronically monitor the number of Authorized Users, Seats and/or Signatures, and (iv) provide periodic reports in the form requested by DocuSign on Customer’s usage metrics.

5.5  Usage and Access Limitations.  All Software license rights which are not expressly granted herein are deemed withheld.  Without limitation on the foregoing, no rights to the DocuSign source code are granted or implied.  Customer shall not: (i) adapt, alter, modify, translate, create derivative works of, reverse compile, disassemble, or otherwise attempt to reconstruct the source code of the Software; (ii) use the Software for any purpose that is not authorized in the Software documentation; (iii) allow use of the Software in any manner that allows internal access to its functionality other than through the functionality of the Customer’s systems that incorporate the Software or the Software’s interface (as the same may be enhanced from time to time) published by DocuSign; (iv) allow use of the Software to create digital signatures by any device other than the Equipment; (v) allow use of the Equipment with any software not approved by DocuSign; (vi) assign, pledge, rent, lease, loan or timeshare the Software to third parties; (vii) obfuscate, remove or alter any of the trademarks, trade names, logos, patent or copyright notices, confidential or proprietary rights notices or legends or other notices or markings on or in Appliance Subscription Service(s) or accompanying documentation, without DocuSign’s express written consent; (viii) add, or permit any third party to add, any markings, notices or legends to Appliance Subscription Service(s) without DocuSign’s express prior written consent; (ix) publish or otherwise disclose to any third party the results of any analysis, benchmark or other tests on Appliance Subscription Service(s); (x) copy any portion of the Software for any purpose not expressly allowed under this Agreement; (xi) sublicense or distribute the Software in any manner to any third party; or (xii) in the event the Customer’s Application is specifically identified in the Order Form, use the Software for any other application.

5.6  Updates/Upgrades.  DocuSign or its agents may make Updates and/or Upgrades of the Software and/or Equipment available during the Term.  Updates and/or Upgrades of Software and/or Equipment may be provided to Customer subject to additional or different terms, and such terms shall be deemed accepted by Customer upon installation or use of such version.  Customer acknowledges that failure to timely update the Software and/or replace Equipment may prevent the Application Subscription Service from functioning, and that DocuSign shall have no liability for such malfunction.  Notwithstanding the foregoing, Customer shall immediately install any Update and/or Upgrade of the Software provided for the purpose of avoiding or resolving a third party claim of intellectual property infringement applicable to a previous version of the Software.

5.7  Third Party Software. The Software may contain or be distributed with Third Party Software.  Information concerning the inclusion of Third Party Software, if any, and the notices, license terms, and disclaimers applicable to that Third Party Software are contained in the Documentation.  Except as expressly provided herein, this Agreement does not apply to any Third Party Software identified in the Documentation. Any Third Party Software provided with the Software is for use solely with the Software. Any use of the Third Party Software on a stand-alone basis is strictly prohibited. Customer shall review and adhere to all licenses for Open Source Software. By accepting the Software License Terms, Customer is also accepting the terms and conditions of the licenses applicable to any Third Party Software (including any Open Source Software) included with the Software. Customer will have no recourse against DocuSign unless DocuSign is the stated licensor and then only to the extent provided in such license. Customer will be responsible to do whatever is necessary or required by the third party licensor for the Third Party Software licenses and related terms to take effect (e.g. online registration). Unless stated otherwise in these Software License Terms or in the Third Party Software license or provided under a maintenance contract, DocuSign will not provide support for Third Party Software and will not provide Customer with any IP indemnity for the Third Party Software. As used in this Agreement, “Open Source Software” means any software code that: (a) contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software, shareware or similar licensing or distribution models; and (b) is subject to any agreement with terms requiring that such software code be (i) disclosed or distributed in source code or object code form, (ii) licensed for the purpose of making derivative works, and/or (iii) redistributable.

5.8   Intellectual Property Ownership, Copyright Protection.  DocuSign and its licensors own various intellectual property and technology rights associated with the Appliance Subscription Service(s).  Customer’s rights with respect to the foregoing are limited to the rights to use the Appliance Subscription Service(s) that are granted under this Agreement or the applicable Order Form for the purposes contemplated by this Agreement, and no other, and all rights not expressly granted are reserved by DocuSign and its licensors and suppliers. DocuSign does not license or transfer to Customer, 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 and its licensors’ technology and intellectual property, whether patent, copyright, trade secret, trademark, service mark, design, database or moral rights, remain solely with DocuSign and its licensors at all times.  Without limiting the generality of the foregoing, the structure, organization and code of the Software are trade secrets and Confidential Information (as defined below) of DocuSign and its licensors. The Software is protected by law, including without limitation the copyright laws of the United States and other countries, and by international treaty provisions. 

5.9   Verification Rights.  DocuSign or its independent auditor may, upon reasonable notice to Customer, examine and audit Customer’s records and systems to ensure compliance with applicable software licenses. The audit will be performed during normal business hours in a manner which does not unduly interfere with Customer’s business operations. If the audit shows that Customer is using more copies of the Software than permitted under Customer’s applicable licenses, DocuSign will charge Customer additional usage fees.

5.10  Developer Bundle License.  If Customer requires software and materials to create interoperability between Appliance Subscription Services and Customer’s product or systems for internal use, Customer may obtain a Developer Bundle (as defined in the Attachment 1) subject to the terms and conditions of Attachment 1.

5.11  Professional Service.  Customer may purchase Professional Services from DocuSign subject to the terms and conditions of this Agreement at DocuSign’s current rates that will be described in greater detail in an applicable Order Form or Work Order.

5.12  Technical Support.  DocuSign will provide customer technical support to Customer in accordance with the Appliance Subscription Service and Technical Support plan that is identified on the Order Form, as further detailed in the Technical Support Agreement attached hereto as Attachment 2.

6.      WARRANTIES AND REMEDIES.

6.1  Warranty of Title.  DocuSign warrants that it has the right, by title, license or contract, to enter into this Agreement.

6.2  Equipment Warranty and Remedy.  DocuSign’s limited Equipment warranty is in place for the subscription Term (“Equipment Warranty Period”). Under DocuSign’s limited Equipment warranty, DocuSign warrants against defects in workmanship and material for Equipment purchased from DocuSign or DocuSign-authorized reseller. DocuSign’s sole responsibility under this warranty shall be to either repair or replace, at its option, any component which fails during the applicable Equipment Warranty Period because of a defect in workmanship and material, provided Customer has promptly reported same to DocuSign in writing. All replaced broken or defective Equipment or parts shall become DocuSign’s property. DocuSign will honor the warranty at DocuSign’s repair facility. It is Customer’s responsibility to return, at its expense, the allegedly defective Equipment to DocuSign. Customer must obtain a Return Materials Authorization (RMA) number and shipping instructions from DocuSign prior to returning any Equipment under warranty. Transportation charges for the return of the Equipment to Customer within the states and territories of the United States shall be paid by DocuSign. For all other locations, the warranty excludes all costs of shipping, customs clearance and other related charges. If DocuSign determines that the Equipment is not defective within the terms of the warranty, Customer shall pay DocuSign all costs of handling, transportation and repairs at DocuSign’s then prevailing repair rates. All the above warranties are contingent upon proper use of the Equipment. These warranties will not apply (i) if adjustment, repair or parts replacement is required because of accident, unusual physical, electrical or electromagnetic stress, negligence of Customer, misuse, failure of electric power environmental controls, transportation, Equipment not maintained in accordance with DocuSign specifications, or abuses other than ordinary use; (ii) if the Equipment has been modified by Customer or has been repaired or altered outside DocuSign’s facilities, unless DocuSign specifically authorizes such repairs or alterations; or (iii) where DocuSign serial numbers, warranty data or quality assurance decals have been removed or altered. In no event shall DocuSign be liable for any breach of warranty in an amount exceeding the total amount payable by Customer to DocuSign under the Order Form to which the Appliance Subscription Service(s) relates.  No person, including any dealer, agent or representative of DocuSign is authorized to assume for DocuSign any other liability on its behalf except as set forth herein. Non-payment of any invoice rendered within the payment terms of this Agreement automatically cancels any stated or implied warranty or guarantee.

6.3   Acceptance of Equipment. Acceptance by Customer shall occur upon delivery, unless DocuSign is notified in writing within ten (10) days from receipt of the Equipment(s) by Customer that the Equipment do not conform to Customer’s order or DocuSign product specifications. DocuSign’s sole obligation for such nonconforming Equipment shall be limited to repair or replacement, at its option, pursuant to the provisions of the foregoing warranty clause.

6.4 Software Warranty and Remedy.  DocuSign warrants that all Software shall operate substantially in accordance with DocuSign’s published specifications and user manuals pertaining to such Software during the Term.  DocuSign’s sole responsibility under this warranty shall be to Update and/or Upgrade the Software, contingent upon (a) Customer having a current Order Form for the Appliance Subscription Service; and (b) the Equipment upon which such Software is installed has not reached EOL.

6.5  Correction of Program Errors.  Any non-conformance of the Software (a “Program Error”), if any, reported by Customer must be accompanied or followed by sufficient information to enable DocuSign to reproduce and verify the Program Error including, but not limited to, the input data that generated the Program Error.  Once DocuSign has received all such information, if DocuSign is able to reproduce and verify the Program Error, DocuSign shall use commercially reasonable efforts to provide a remedy. Remedies may include, without limitation, providing instructions for Customer to cure the Program Error, or delivering a software patch or update.  Under no circumstances does DocuSign represent or warrant that any or all Program Errors can or will be remedied.

6.6  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.

6.7 THIS SECTION 6 SETS FORTH CUSTOMER’S SOLE REMEDY AND DOCUSIGN’S ENTIRE OBLIGATION AND LIABILITY FOR BREACH OF ANY DOCUSIGN WARRANTY FOR EQUIPMENT, SOFTWARE, APPLIANCE SUBSCRIPTION SERVICES AND DOCUMENTATION UNDER THIS AGREEMENT.

7.      INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS.  If notified promptly in writing of any action (and all prior claims relating thereto) brought against Customer alleging that Customer's use of Appliance Subscription Service(s) infringes a United States patent, copyright or other proprietary right, DocuSign will defend such action at its expense and will pay the costs and damages awarded against Customer in such action, provided that (i) such claim of infringement arises solely from use of Appliance Subscription Service(s) itself, and not as a consequence of Appliance Subscription Service(s) in combination with any other products or technology, and (ii) DocuSign shall have sole control of the defense of any such action and all negotiations for its settlement or compromise.  If a final injunction is obtained in such action against Customer's use of Appliance Subscription Service(s) or in DocuSign’s opinion Appliance Subscription Service(s) is likely to become the subject of a claim of infringement, DocuSign shall, at its option and expense, procure for Customer the right to continue using Appliance Subscription Service(s); replace or modify Appliance Subscription Service(s) so that it becomes non-infringing; or accept Customer's return of Equipment and cancellation of this Agreement.  DocuSign shall not have any liability to Customer if the alleged infringement is based upon (a) DocuSign’s compliance with Customer's designs, specifications or instructions, in which case Customer shall defend and hold DocuSign harmless against any expenses, judgment or loss for alleged infringement of any patents, copyrights or trademarks; (b) patent issued on a patent application published after the Order Start Date; (c) incorporation by the Software or combination, operation or use of the Software in or with any technology (including any software, hardware, firmware, system or network) or service not provided by DocuSign or not specified for Customer’s use in the Documentation, unless otherwise expressly permitted by DocuSign in writing; (d) modification of the Software other than (1) by DocuSign in connection with this Agreement; or (2) with DocuSign’s express written authorization and in strict accordance with DocuSign’s written directions and specifications; (e) failure to timely implement any Update or Upgrade, modification, or replacement of the Software made available to Customer by DocuSign; (f) use of the Software after DocuSign’s notice to Customer of such activity's alleged or actual infringement, misappropriation or other violation of a third party's rights; (g) negligence, abuse, misapplication or misuse of the Software or Documentation by or on behalf of Customer, Customer’s representatives or a third party; (h) use of the Software or Documentation by or on behalf of Customer that is outside the purpose, scope or manner of use authorized by this Agreement or in any manner contrary to DocuSign’s instructions; or (i) events or circumstances outside of DocuSign’s commercially reasonable control (including any third-party hardware, software or system bugs, defects or malfunctions).  No costs or expenses shall be incurred by DocuSign without the prior written consent of DocuSign.  In no event shall DocuSign’s total aggregate liability to Customer under or as a result of compliance with the provisions of this Section 7 (“Infringement of Third Party Proprietary Rights”) exceed the total amount payable by Customer to DocuSign under the Order Form or Statement of Work to which the liability relates. The foregoing states Customer’s sole and exclusive remedy, and the entire liability of DocuSign with respect to alleged infringement of any third party proprietary rights by Appliance Subscription Service(s), Equipment or any part thereof or by its operation.

8.      DISCLAIMERS AND LIMITATIONS.

8.1  DISCLAIMER OF CONSEQUENTIAL DAMAGES; CAP ON DAMAGES. 

(i)  IN NO EVENT WILL DOCUSIGN BE LIABLE TO CUSTOMER FOR (a) REPROCUREMENT COSTS; (b) SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES; (c) ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR THE USE OR PERFORMANCE OF APPLIANCE SUBSCRIPTION SERVICE, REGARDLESS OF WHETHER THE CAUSE OF ACTION IS IN CONTRACT, TORT, INCLUDING NEGLIGENCE, OR ANY OTHER FORM.

(ii)  IN NO EVENT WILL DOCUSIGN’S TOTAL AGGREGATE LIABILTY OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF FORUM AND BASIS OF ACTION OR CLAIM (CONTRACT, TORT, OR OTHERWISE), WILL EXCEED THE TOTAL AMOUNT PAYABLE BY CUSTOMER TO DOCUSIGN UNDER THE ORDER FORM OR STATEMENT OF WORK TO WHICH THE LIABLITY RELATES.

(iii) No person, including any dealer, agent or representative of DocuSign is authorized to assume for DocuSign any other liability on its behalf except as set forth herein. NONPAYMENT OF ANY INVOICE RENDERED WITHIN THE STATED PAYMENT TERMS AUTOMATICALLY CANCELS ANY WARRANTY OR GUARANTEE STATED OR IMPLIED. If DocuSign is due any payment for services performed hereunder, it shall be subject to the same payment terms as the original purchase.

8.2  DISCLAIMER OF WARRANTIES.  ALL DOCUSIGN EQUIPMENT, SOFTWARE, PROFESSIONAL SERVICES AND APPLIANCE SUBSCRIPTION SERVICES ARE PROVIDED “AS-IS”.  DOCUSIGN DISCLAIMS ALL IMPLIED WARRANTIES FOR EQUIPMENT, SOFTWARE, PROFESSIONAL SERVICES AND APPLIANCE SUBSCRIPTION SERVICES INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  Customer has no right to make or pass on any representation or warranty on behalf of DocuSign to any third party.

8.3  Time Bar.  Except for an action for nonpayment, no action, whether in contract or tort, including negligence, or any other form of action arising out of or in connection with this Agreement, may be brought by either party more than twenty four (24) months after the cause of action has accrued.

8.4  DocuSign’s Suppliers. All limitations and exclusions of DocuSign’s liability under this agreement, including without limitation the limitations and exclusions for breach of warranty and for infringement, shall extend to DocuSign’s affiliated companies, subsidiaries, subcontractors and suppliers.

9.      CONFIDENTIALITY

9.1  ”Confidential Information” means any trade secrets or other information of DocuSign or Customer, whether of a technical, business, or other nature (such as DocuSign's software), 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 disclosing party; (c) is acquired by Recipient from another source that did not receive it in confidence from the disclosing party to this Agreement; or (d) is or becomes part of the public domain through no fault or action of Recipient.

9.2  Restricted Use and Nondisclosure.  During and after the Term, Recipient will: (a) use the Confidential Information of the disclosing 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.

9.3  Required Disclosure.  If Recipient is required by law to disclose Confidential Information of the disclosing party or the terms of this Agreement, Recipient will give prompt written notice to the disclosing 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.

9.4  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.

9.5  Remedies.  Recipient acknowledges that any actual or threatened breach of this Section 9 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 such breaches.  Absent written consent of the disclosing party to the disclosure, the Recipient, in the case of a breach of this Section 9, 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 9.

9.6  Existing Obligations.  The obligations in this Section 9 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.

10.      GENERAL PROVISIONS

10.1  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) certified or registered mail; or (b) insured courier, to the appropriate party at the address set forth on the Order Form, with a copy, in the case of DocuSign, to legal@docusign.com.  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.

10.2   Notice to U.S. Government End Users. The Software and Documentation are “Commercial Items, “  as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.  Unpublished-rights reserved under the copyright laws of the United States. Copyright 2015 DocuSign, Inc., 221 Main Street, Suite 1000, San Francisco, CA 94105, USA. 

10.3  Feedback. Any feedback provided by Customer to DocuSign concerning the functionality or performance of the Software (including identifying potential errors and improvements) (“Feedback”), is hereby assigned by Customer to DocuSign which includes all right, title, and interest in and to the Feedback, and DocuSign is free to make unrestricted use of the Feedback without any necessity of payment to Customer.  Customer represents and warrants that at the time of disclosure to DocuSign, Customer is the sole owner of the Feedback or otherwise have the unfettered right or license to make the foregoing assignment.

10.4. Export Rules. Customer may not export or re-export the Software without: (a) the prior written consent of DocuSign; and (b) complying with all applicable export and import control laws and obtaining any necessary permits and licenses.

10.5  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.

10.6  Assignability.  Customer may not assign its rights or obligations under this Agreement without DocuSign’s prior written consent.  If consent is given, this Agreement will bind Customer’s successors and assigns.  Other than the foregoing, any attempt by Customer to transfer its rights or obligations under this Agreement will be void.

10.7  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 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.

10.8  Mandatory Arbitration.  Except for claims: (a) for breach of the confidentiality provisions; (b) arising out of the indemnity obligations; and (c) for injunctive relief, any dispute, claim or controversy arising out of or related to this Agreement or the performance, enforcement, breach, termination, validity or interpretation thereof, including the determination of the scope or applicability of this agreement to arbitrate, that cannot be resolved through good faith discussions between the parties within a reasonable period of time (not to exceed 30 days), will be settled by binding arbitration conducted before one arbitrator.  The arbitration shall be administered by the Judicial Arbitration and Mediation Services (“JAMS”) pursuant to JAMS’ Streamlined Arbitration Rules and Procedures, if applicable, or otherwise pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules (the “JAMS Rules”).  Either party may submit the matter to arbitration.  Such disputes will be resolved by the arbitrator as determined under the JAMS Rules.  The arbitration will be conducted in San Francisco County, California, and judgment on the arbitration award may be entered into any court having jurisdiction thereof.  Each party will bear its own expenses in the arbitration and will share equally the costs of the arbitration; provided, however, that the arbitrator may, in its discretion, award costs and fees to the prevailing party.  Judgment upon the award may be entered in any court having jurisdiction over the award or over the applicable party or its assets.  This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

10.9  Governing Law.  This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A., without reference to its choice of law rules to the contrary.  Notwithstanding the parties’ agreement to mandatory arbitration, either party may seek any interim or preliminary injunctive relief from a court of competent jurisdiction in San Francisco, CA, as necessary to protect the party's rights or property pending the completion of arbitration. The parties submit to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in San Francisco, California, U.S.A. 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.

10.10  Waiver.  The waiver by either party of any breach of any provision of this Agreement does not waive any other breach.  The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.

10.11  Severability.  If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.  If any material limitation or restriction on the grant of any license to Customer under this Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate.

10.12  Entire Agreement.  This Agreement is the final and complete expression of the agreement between these parties regarding the Appliance Subscription Service(s).  This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters.  These terms and conditions are an essential consideration for DocuSign’s agreement to sell its products and services and shall apply to all DocuSign’s shipments notwithstanding any different, conflicting or additional terms and conditions which may appear on any order submitted by Customer which shall be of no effect other than to specify the Equipment, quantities, price, and requested delivery dates. 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 or SOW.

11.      SERVICES, STATEMENT OF WORK AND CHANGE ORDERS.

11.1  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 Customer.

11.2  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 implementation, training, 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 SOW 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.

12.      PERFORMANCE OF PROFESSIONAL SERVICES.

12.1  Fees; Project Management.  Customer 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.

12.2  Performance Standard.  DocuSign warrants to Customer that the Professional Services will be performed in a competent and workmanlike manner in accordance with accepted industry standard practice and the SOW.  Customer’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 terminate the affected Professional Services and refund Customer the prorated amount of fees for the unperformed Professional Services. THE FOREGOING REMDIES ARE SUSCRIBERS SOLE AND EXCLUSIVE REMEDIES AND DOCUSIGN’S ENTIRE LIABILITY FOR ANY BREACH OF THE PROFESSIONAL SERVICES WARRANTY.

13.      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 Customer 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.  

14.      PROFESSIONAL SERVICE PRODUCT LICENSING.

14.1 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.

14.2 Customer Materials.  Any non-DocuSign materials provided by Customer to DocuSign for use by DocuSign in the course of performing Professional Services under a SOW (“Customer Materials”) will be used by DocuSign solely to perform the Professional Services under a SOW.  As between the parties, Customer will continue to own the Customer Materials and all Proprietary and Intellectual Property Rights therein and thereto.

14.3 Ownership.  Except for Customer 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 Customer 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.

14.4 License Grant. Effective only as of final payment by Customer to DocuSign of all amounts required by a SOW, and subject to the terms and conditions of the SOW and the Agreement, DocuSign grants to Customer a nonexclusive, perpetual, worldwide, royalty-free license to use software provided to Customer under the SOW, solely for purposes of Customer’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.  The license granted to Customer in this Section 14 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 14 will be void.  The SOW provides no other license or grant of rights to Customer.  Any software provided to Customer under a SOW is licensed, not sold. 

14.5 Any software provided to Customer under a SOW is subject to the terms of the DocuSign Software License Agreement (“Software License Agreement”). By installing and using any such software Customer agrees to be bound by the terms and conditions of the Software License Agreement.

14.6 A SOW does not obligate DocuSign to update or provide support for any software provided to Customer under the SOW after acceptance by Customer.  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.

ATTACHMENT 1 DEVELOPER LICENSE to

DOCUSIGN, INC. TERMS AND CONDITIONS FOR

DOCUSIGN APPLIANCE SUBSCRIPTION SERVICES

The following additional terms and conditions apply to a Customer accessing a Developer Bundle (as defined below).

This Appliance Subscription Services Developer License (“Developer License”) is a legal agreement between Customer as a “Licensee” and DocuSign, Inc. regarding the use of the Developer Bundle created by DocuSign Inc. and its affiliates (collectively “DocuSign”) for implementing access to DocuSign’s digital signature solution known as Appliance Subscription Services and is incorporated into and made a part of the DocuSign, Inc. Terms and Conditions for Appliance Subscription Services (“Agreement”). This Developer Bundle may include: (i) the SAPI® toolkit, (ii) Appliance Agent software, (iii) Appliance Subscription Service Code Samples, (iv) Appliance Subscription Service Documentation, (v) any and all other software products made available to Licensee under this Developer License (collectively the “Developer Bundle”), and (v) access to the Appliance Subscription Service hosted sandbox for testing the Developer’s implementation.  Defined terms not otherwise defined in this Agreement with have the meaning set forth in this Developer License. 

1. Grant of License: This is not a sale of the Developer Bundle. Subject to the terms and conditions set forth in this license, DocuSign grants Licensee, a non-exclusive, non-sublicensable, limited, revocable, non-transferable license to use the Developer Bundle for internal use at Licensee’s facilities within the territorial boundaries of the country where this Developer Bundle was delivered to Licensee for non-production purposes, only for the limited purposes of (i) creating interoperability between Licensee products and the Appliance Subscription Service (“Interoperable  Product”); (ii) support for the Interoperable Product, and for no other purpose; and (iii) copy and distribute to end users components created by or from the Developer Bundle necessary for interoperability with the Appliance Subscription Service, strictly as an embedded feature of Licensee’s products and not as an independent program. Distribution of any portion of this Developer Bundle to third parties on a standalone basis is strictly prohibited.

2. Updates: DocuSign or its agents may make updates or new versions of the Developer Bundle available. Updates and/or new versions of the Developer Bundle may be provided to Licensee subject to additional or different terms, and such terms shall be deemed accepted by Licensee upon installation or use of such version.  Licensee acknowledges that failure to timely update the Developer Bundle may prevent it from functioning, and that DocuSign shall have no liability for such malfunction.  Notwithstanding the foregoing, Licensee shall immediately install any update or new version of the Developer Bundle provided for the purpose of avoiding or resolving a third party claim of intellectual property infringement applicable to a previous version of the Developer Bundle.

3. Third Party Software: The Developer Bundle may contain or be distributed with Third Party Software.  Information concerning the inclusion of Third Party Software, if any, and the notices, license terms, and disclaimers applicable to that Third Party Software are contained in the Documentation.  Except as expressly provided herein, this License does not apply to any Third Party Software identified in the Documentation. Any Third Party Software provided with the Developer Bundle (i) is for use solely with the Developer Bundle, (ii) subject to the Third Party Software License and (iii) use of the Third Party Software on a stand-alone basis is strictly prohibited. Licensee will have no recourse against DocuSign unless DocuSign is the stated licensor and then only to the extent provided in such license. Licensee will be responsible to do whatever is necessary or required by the third party licensor for the licenses and related terms to take effect (e.g. online registration). Unless stated otherwise in this Developer License or in the third party license or provided under a maintenance contract, DocuSign will not provide support for Third Party Software and will not provide Licensee with any IP indemnity for the Third Party Software.

4. Ownership: The Developer Bundle is the intellectual property of, and owned by DocuSign and its licensors.  Without limiting the generality of the foregoing, the structure, organization and code of the Developer Bundle are trade secrets and Confidential Information of DocuSign and its licensors.  The Developer Bundle is protected by law, including without limitation the copyright laws of the United States and other countries, and by international treaty provisions.  Except as expressly stated herein, this License does not grant Licensee any intellectual property rights in the Developer Bundle, and all rights not expressly granted are reserved by DocuSign and its suppliers.  Licensee agrees that upon request from DocuSign or DocuSign’s authorized representative, Licensee will within 30 days fully document and certify that use of any and all Developer Bundle at the time of the request is in conformity with Licensee’s valid licenses from DocuSign. 

5. Restrictions: Licensee will not copy the Developer Bundle, except to make a back-up copy that is not installed or used on any computer.  Any copy of the Developer Bundle that Licensee makes must contain the same copyright and other proprietary notices that appear on or in the Developer Bundle.  Licensee shall not: (i) adapt, alter, modify, translate, create derivative works of, reverse compile, disassemble, merge or otherwise attempt to reconstruct the source code of the Developer Bundle; (ii) use the Developer Bundle for any purpose that is not authorized in the documentation; (iii) allow use of the Developer Bundle in any manner that allows internal access to its functionality other than through the user interface of the Licensee’s products that incorporate the Developer Bundle; (iv) create interoperability between the Developer Bundle and any third party’s products that provide functionality similar to the Appliance Subscription Service; (v) assign, pledge, rent, lease, loan or timeshare the Developer Bundle; (vi) alter the standard “look and feel” of the Appliance Subscription Service user interface, as implemented by the Developer Bundle and depicted in its user manuals; (vii) obfuscate, remove or alter any of the trademarks, trade names, logos, patent or copyright notices, confidential or proprietary rights notices or legends or other notices or markings on or in the Developer Bundle without DocuSign’s express written consent; (viii) publish or otherwise disclose to any third party the results of any analysis, benchmark or other tests on the Developer Bundle; (ix) copy any portion of the Developer Bundle for any purpose not expressly allowed under this Developer License; (x) distribute the Developer Bundle except in the manner expressly allowed under this Developer License; or (xi) impose any fee or added cost on Licensee’s customers or end users for use of any of the Appliance Subscription Service functionality.

6. Reservation of Rights: All rights, to the Developer Bundle, which are not expressly granted herein, are deemed withheld. Without limitation on the foregoing, no rights to the Developer Bundle are granted or implied and no license will be deemed granted by implication or estoppel.

7.   Warranty.  Except as otherwise expressly set forth herein, DOCUSIGN PROVIDES THE DEVELOPER BUNDLE AND ANY SERVICES PROVIDED UNDER THIS DEVELOPER LICENSE “AS IS,” WITHOUT WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE OR CONTINUOUS OPERATION AND NON-INFRINGEMENT.  LICENSEE WILL UNDERTAKE ANY AND ALL DEVELOPMENT AT LICENSEE’S OWN RISK, INCLUDING ALL RESPONSIBILITY FOR LICENSEE PRODUCT(S).

8. DISCLAIMER OF CONSEQUENTIAL DAMAGES; CAP ON DAMAGES. 

(i)  IN NO EVENT WILL DOCUSIGN BE LIABLE TO CUSTOMER FOR (a) REPROCUREMENT COSTS; (b) SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES; (c) ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR THE USE OR PERFORMANCE OF APPLIANCE SUBSCRIPTION SERVICE, REGARDLESS OF WHETHER THE CAUSE OF ACTION IS IN CONTRACT, TORT, INCLUDING NEGLIGENCE, OR ANY OTHER FORM.

(ii)  IN NO EVENT WILL DOCUSIGN’S TOTAL AGGREGATE LIABILTY OF ANY KIND ARISING OUT OF OR RELATING TO THIS DEVELOPER LICENSE, REGARDLESS OF FORUM AND BASIS OF ACTION OR CLAIM (CONTRACT, TORT, OR OTHERWISE), WILL EXCEED FIVE THOUSAND DOLLARS (USD $5,000.00).

9. Termination: This Developer License will be effective upon the Effective Date, and shall automatically terminate on the earlier of: (i) the expiration or termination of Licensee’s right to receive the Appliance Subscription Service(s); or (ii) DocuSign’s termination of this Developer License, as permitted herein. Notwithstanding anything to the contrary herein, DocuSign may (at its sole discretion) suspend or terminate this Developer License if Licensee fails to comply with any term of this Developer License.

        9.1   Effect of Termination.  Upon termination of this Developer License, Licensee shall cease all use of the Developer Bundle and if requested by DocuSign, certify in writing to DocuSign that all copies of the Developer Bundle have been destroyed or deleted from any and all computer libraries or storage devices in Licensee’s possession and/or control. In addition to the terms that survive in the main body of the Agreement, the following Developer License sections will survive: Sections 4, 6 through 13, and all definitions of defined terms.

10. Feedback. If Licensee provide any feedback to DocuSign concerning the functionality or performance of the Developer Bundle (including identifying potential errors and improvements) (“Feedback”), Licensee hereby assign to DocuSign all right, title, and interest in and to the Feedback, and DocuSign is free to make unrestricted use of the Feedback without any necessity of payment to Licensee.  Licensee represents and warrants that Licensee are the sole owner of the Feedback, or otherwise have the unfettered right or license to make the foregoing assignment.

11. Export Rules. Licensee may not export or re-export the Developer Bundle without: (a) the prior written consent of DocuSign; and (b) complying with all applicable export and import control laws and obtaining any necessary permits and licenses.

12. Notice to U.S. Government End Users. The Developer Bundle and Documentation are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.  Unpublished-rights reserved under the copyright laws of the United States. Copyright 2015 DocuSign, Inc., 221 Main Street, Suite 1000, San Francisco, CA 94105, USA.

13.  Conflict.  If there is a conflict between the main body of the Agreement and this Developer License, the terms and conditions of this Developer License will govern and control as to this Developer License subject matter.

ATTACHMENT 2 TECHNICAL SUPPORT AGREEMENT for DocuSign Appliance Subscription Services

CUSTOMER TECHNICAL SUPPORT

1.1  DocuSign agrees to provide customer technical support pursuant to the Agreement. Except as provided in the Agreement, no customer technical support is provided to Customer unless Customer purchases an Appliance Subscription Service and Technical Support plan. Under an Appliance Subscription Services and Technical Support plan, Customer is entitled to customer technical support as described herein.

1.2  This Agreement does not cover customer technical support for Equipment and/or Software, or versions of Equipment and/or Software, which have reached EOL. Customer is encouraged to contact its DocuSign sales representative to determine whether any of Customer’s Equipment and/or Software has reached its EOL.  DocuSign’s receipt of Appliance Subscription and Technical Support fees for Equipment and/or Software that has already reached its EOL does not constitute an agreement to extend this Term of coverage. Any customer technical support offered by DocuSign for Equipment and/or Software that have already reached its EOL will be offered at DocuSign’s sole discretion and if offered will be provided “as is” without warranty of any kind related to the Appliance Subscription Service(s).

1.3  The services and remedies offered under this Agreement are exclusive of all other remedies for Equipment defects which may arise during the Term of coverage.  All services and remedies are offered on a “reasonable commercial efforts” basis, and DocuSign does not guarantee that all Equipment defects can be remedied.

1.4  DocuSign Customer Support provides assistance to Customer as specified in Section 1.5 below utilizing DocuSign’s team of experienced technical support professionals online and/or by phone. DocuSign will provide prompt response and escalated support during Customer’s business day, with specific time coverage described below.

1.5  Appliance Subscription Service Support Deliverable Description:

Support portal and Knowledge Base – Search for answers and submit Support requestsDocuSign Community - Q&A community staffed by DocuSign employees and power users of DocuSign’s products and servicesOnline Case Submission and Management – Submit cases online for assistance from DocuSign Support TeamPhone or Email Support - Talk to our DocuSign Support Team for technical Appliance Subscription Service questions, billing inquiries and account support. Support hours: 8:00 AM - 6:00 PM Monday-Friday US Central Standard Time, and 8:00 AM - 6:00 PM Sunday-Thursday Central European Time.
Escalated response via Customer’s DocuSign account manager: 8 hour phone and/or email response.Escalated Tier 2 Support – Direct access to senior technical resource as part of standard support escalation process.Appliance Subscription Service Integration Support (Appliance Subscription Service Integration Tools)

1.6  An account manager will be assigned to Customer to provide support through DocuSign’s online case submission and management tools that allows Customer to track questions through resolution.