TERMS AND CONDITIONS FOR ON PREMISES REPOSITORY SERVICES v130901
In addition to the DocuSign Corporate Subscriber Terms and Conditions, the following additional terms and conditions apply to Subscriber’s use of Repository Services, if any, that are made the subject of an Order Form. The Repository Services are provided by eOriginal, Inc. ("eOriginal") as an alliance partner to DocuSign. These Terms and Conditions may not be modified or amended except with the express consent of eOriginal.
As used herein, “Repository Services” means the eOriginal licenses granted herein for an On Premises installation of eCore, including the functionality of Command Center and the eVaulting Services.
1. ADDITIONAL DEFINITIONS
1.1 "Administrative Users" means those Authorized Users of Subscriber whom Subscriber authorizes to obtain access and use of Command Center, and those authorized personnel of Subscriber whom Subscriber authorizes to manage the operation of eCore.
1.2 "Command Center™" means that separate user interface of eCore provided as part of the Repository Services which contains the following functionality: eCore vault user authentication, session management and access control; Post-closing eDeposit management by Subscriber of eDeposits in eCore; View, edit, search, retrieval, and print a copy of eDeposits; Certified Print®, Paper Out® export ability and destruction of eDeposits in eCore; and transfer control/ownership of eDeposits and documents therein and vault-to-vault transfers.
1.3 "Contract Repository Services" means that portion of the Repository Services which enables Subscriber's Administrative Users to administer and manage the eDeposits and the eContracts therein which are stored in eCore.
1.4 "eCore®" means the eOriginal proprietary software consisting of the electronic vault provided as part of the Repository Services.
1.5 “eDeposit” means those eContracts and/or other documents and information contained in an Envelope that Subscriber elects to deposit into eCore from the Subscription Service, and those electronic contracts accepted by Subscriber from other customers of eOriginal or from other trusted electronic vaults for deposit into eCore.
1.6 "eVaulting Services" means that portion of the Repository Services consisting of the Contract Repository Services with the added functionality of converting eContracts and other electronic contracts in eDeposits deposited into eCore into transferable records and/or authoritative copies, as such terms are defined in statutes or laws such as the Uniform Commercial Code and the Uniform Electronic Transactions Act.
1.7 “On Premises”, if indicated on Subscriber’s Order Form, means the licenses granted in Section 3.2 herein to the object code of eCore, including the functionality of the eVaulting Services.
1.8 "Service Standards" means those service level standards with regards to performance, maintenance and support of the Repository Services described on the eOriginal website at http://www.eoriginal.com/support/repository-services-service-st/, as updated from time to time, as applicable to Repository Services provided On Premises.
1.9 "Technical Contacts" means those Administrative Users trained by eOriginal and designated by Subscriber as Subscriber's sole contact persons for purposes of obtaining Repository Services support, maintenance and administration services.
1.10 "User's Guide" means, collectively, the documentation relating to the use, administration, functionality and features of the Repository Services, in any medium, which is provided to Administrative Users by eOriginal and/or made available to Administrative Users via Command Center, each as may be updated from time to time. The current version of the Command Center User's Guide is also available for review at http://support.eoriginal.com/documentation/Admin_Guide.pdf.
2. IMPLEMENTATION AND USER ADMINISTRATION
2.1 Provisioning. Promptly after the Order Start Date defined in an Order Form requesting Repository Services for an On Premises installation, eOriginal will deliver to Subscriber the executable code for eCore and Command Center and provide to Subscriber training in the use and administration of the Repository Services as described in the Order Form. Additionally, eOriginal will also provide to Subscriber the installation services described in the Order Form.
2.2 Hardware/Third Party Software. Subscriber shall be solely responsible for selection of, procuring, compatibility of, and maintenance and support of, such third party software and all computer hardware and equipment that may be required in the User’s Guide to make effective use of the Repository Services. eCore will be updated to accommodate new versions or releases of such third party software or hardware on eOriginal’s standard development schedule at no additional charge to Subscriber as support under Section 4 below. Such new releases of the Repository Services will be introduced by eOriginal in accordance with its internal release schedule prepared to meet the needs of all its licensed users.
2.3 User’s Guide. The User's Guide specifies the rules governing use and access of the Repository Services by Subscriber and Administrative Users. Changes in the User's Guide will be generally announced by eOriginal from time to time.
2.4 Limitations on Use. Except as expressly permitted in these Terms and Conditions, Subscriber shall not, and shall not permit any Administrative User to: (i) attempt, knowingly permit or encourage other persons or entity to copy, translate, decompile, decipher, disassemble, reverse engineer or otherwise decrypt or in any other manner discover the source code of all or any portion of the eCore software; (ii) alter, modify, adapt or create derivative works of, or market, sell, distribute or transfer in any way, such software or the User's Guide, or any portion thereof, in any way; (iii) with the exception of eOriginal’s application program interfaces, if provided to Subscriber, use external programs to alter, edit or append records to the data files or other information maintained within the Repository Services; or (iv) sublicense, rent or otherwise allow use of eCore by third parties or otherwise use such software to process the data of third parties or to support Subscriber’s activities in any service bureau capacity.
3. PRICING, LICENSES AND LIMITATIONS
3.1 On Premises Repository Services. On Premises Repository Services are licensed on the basis of an annual prepaid subscription and are strictly limited to use within a single line of business or industry vertical of Subscriber (unless otherwise expressly stated on Subscriber’s Order Form). The subscription fee includes support and maintenance services.
3.1.1 On Premises License. Subject to the terms of these Terms and Conditions and ending on the last day of the Term, eOriginal grants to Subscriber, and Subscriber accepts, a non-transferable and non-exclusive license to:
(i) load and use eCore in Canada and the United States for providing services to Subscriber’s customers and funding sources in accordance with the User’s Guide; and
(ii) make additional copies of eCore solely for disaster recovery, testing, back-up, or archival purposes in accordance with Licensee’s internal requirements; and
(iii) use, disclose, display, copy and reproduce the User's Guide solely in connection with the rights granted in Sections 3.1.1(i), (ii), and (iii) above.
Nothing in these Terms and Conditions grants Subscriber any right, title, license or interest in or relating to the source code for the Repository Services, and Subscriber acknowledges that the source code for the Repository Services and related design documentation are not being delivered or licensed under these Terms and Conditions.
3.1.2 On Premises Installation Locations. The Repository Services may be used in production environments and non-production environments, as permitted in Section 3.1.1 above, only at sites indicated in a written notice given to eOriginal by Subscriber prior to installation (or such other location in Canada or the United States as Subscriber may elect, provided that, prior to moving the site, Subscriber provides written notice of such change to eOriginal). Subscriber shall maintain a log of all originals and copies of eCore maintained by Subscriber, including specifically archival and backup copies, and the sites at which they are maintained.
3.1.3 Outsourcing. Subscriber may permit a services provider who has been approved in writing by eOriginal and properly trained by eOriginal to run and operate the Repository Services, subject to the following requirements: (i) eOriginal, Subscriber and such services provider shall have executed a confidentiality agreement in a form reasonably acceptable to eOriginal prior to such access; (ii) such services provider shall be permitted to use the Repository Services solely in accordance with the licenses granted to Subscriber herein; (iii) under no circumstances may such services provider use the Repository Services in connection with such services provider’s own business operations or to operate or provide processing services to any person other than Subscriber; (iv) Subscriber shall be responsible for any additional software, migration tools, or third party software needed by such service provider; and (v) Subscriber expressly agrees to indemnify eOriginal, DocuSign, and each of their affiliates, officers, employees, agents, and subcontractors from and against all claims, liabilities, losses, damages, and costs (including reasonable attorneys' fees) arising from a breach by the services provider of these Terms and Conditions or such confidentiality agreement.
3.1.4 Export/Third Party Software. Subscriber shall not allow the transfer, transmission, export or re-export of eCore in violation of any United States or Canada export control laws or regulations. Subscriber shall also abide by any terms and conditions provided by eOriginal with respect to any hardware or software of a third party vendor or any terms contained in "shrink" or "click" wrap licenses used in connection with provision of the Repository Services
3.1.5 Software Escrow. eOriginal has a Master Preferred Escrow Agreement (Master Number 0515002-0001) (the “Escrow Agreement”) with Iron Mountain Intellectual Property Management, Inc. formerly doing business as DSI Technology Escrow Services, Inc. (“Iron Mountain”), a copy of which may be provided to Subscriber upon request. eOriginal maintains in escrow under this Escrow Agreement a copy of the eCore source code. If elected by Subscriber, Subscriber may execute the appropriate documentation to be designated as a preferred beneficiary under the Escrow Agreement, subject to Subscriber timely paying all fees due to Iron Mountain with respect to such beneficiary status.
3.2 License Limitations. The licenses granted above in this Section 3 do not grant Subscriber or any Administrative User any right to sublicense, distribute, transfer or transmit eCore or any portion of the Repository Services to any corporate affiliate or to any third party.
4. ONGOING SUPPORT AND MAINTENANCE
4.1 Upgrades. The Repository Services also include, at no additional charge, all enhancements, upgrades, new versions and other improvements made to eCore included features and functionality. eOriginal will provide new release notices and training, if required, prior to the release of each new version of eCore. Repository Services support and maintenance does not include support for any extensions or customizations developed by or specifically for Subscriber.
4.2 Limitations. Repository Services support and maintenance will only be provided for the most recent release of eCore and the release immediately prior thereto (e.g., any versions in the 6.X series and the 5.X series). eOriginal shall provide defect correction services for any unsupported release only under a services agreement at eOriginal’s then current standard professional service rates and may, at its discretion, require advance payment. Additionally, upon the release of any enhancement, upgrade, new version or other improvement to eCore, eOriginal will deliver such release to Subscriber and, if requested by Subscriber, may provide installation services or consulting assistance under a services agreement at eOriginal’s then current standard professional service rates.
4.3 Service Standards. eOriginal will provide to Subscriber's Technical Contacts ongoing Repository Services maintenance, administration, and support services as more fully described in the Service Standards as applicable to On Premises Repository Services. Subscriber shall provide Repository Services support services directly to Administrative Users other than Subscriber's Technical Contacts. All Subscriber Technical Contacts shall follow all issue escalation procedures established by eOriginal. eOriginal is expressly authorized by Subscriber to rely upon any and all instructions, whether in written, electronic or oral form, given by any of Subscriber's Technical Contacts.
4.4 Additional Services. Subscriber may elect to receive additional services from eOriginal in connection with the Repository Services, which shall be provided subject to these Terms and Conditions and those of a separately executed services agreement between Subscriber and eOriginal.
5. WARRANTIES AND REMEDY
5.1 Operation and Services. eOriginal will provide and maintain the Repository Services in accordance with the Service Standards and these Terms and Conditions. Additionally, eOriginal will perform all services under these Terms and Conditions, including specifically any additional services, in a professional manner and to generally accepted industry standards. As to the eVaulting Services, eOriginal further represents and warrants that such eVaulting Services include functionality, with respect to those eDeposits uploaded into the Repository Services using the eVaulting Services, allowing the Subscriber to materially comply with the provisions of the Uniform Commercial Code Article 9-105 and its requirements for managing electronic chattel paper as transferable digital assets including the ability to manage and securely maintain a single authoritative copy of each such eDeposit that is unique and readily identifiable, and to materially comply with the provisions of any applicable state Uniform Electronic Transactions Act regarding the creation and management of transferable records. The foregoing warranties shall not apply in the following circumstances: (i) if the Repository Services are used by Subscriber or any Administrative User other than in accordance with the User's Guide or these Terms and Conditions; (ii) if the warranty breach is caused by, or is contributed to by, Subscriber or any Administrative User; (iii) if the warranty breach is caused by software other than the software provided by eOriginal or by malfunction of hardware not provided by eOriginal; (iv) if Subscriber does not provide access, including remote access, to an On Premises installation of the Repository Services for eOriginal to provide support and maintenance services; (v) to the extent the warranty breach is covered by force majeure; or (vi) if the warranty breach is caused by communications or power failures not within eOriginal’s exclusive control. Subscriber agrees that no warranties or representations regarding the Repository Services or any eOriginal services are made other than those set forth in these Terms and Conditions, the Service Standards and the User's Guide.
5.2 Subscriber. Subscriber warrants and covenants that it shall, and it shall require that all Administrative Users use the Repository Services in compliance with the User’s Guide, these Terms and Conditions and all applicable federal and state laws, rules and regulations, including all applicable export laws. Subscriber further warrants and covenants that it shall: (a) reasonably cooperate with eOriginal in its provision of the Repository Services; and (b) have sufficient rights and licenses to all software Subscriber is required to provide or license under these Terms and Conditions (other than eCore) to allow eOriginal to perform the Repository Services.
5.3 Disclaimer. Neither DocuSign nor eOriginal warrants that the operation of the Repository Services will be uninterrupted or error-free. Except as set forth in these Terms and Conditions, the Repository Services are provided “as is” without further warranty of any kind, and all express and implied warranties are hereby expressly disclaimed.
5.4 Remedies. Should any component of the Repository Services fail to meet the warranties set forth in this Section 5, Subscriber’s sole and exclusive remedy with respect to such failure, and eOriginal’s sole obligation, shall be, at eOriginal’s option, to bring the performance of the Repository Services into material and substantial compliance with the functional specifications contained in these Terms and Conditions and the User’s Guide, or to replace the defective component with a functionally equivalent component. eOriginal’s obligation to perform such actions is subject to Subscriber providing eOriginal necessary access, including remote access, to the Repository Services for the purpose of correcting any defect. If applicable, Subscriber shall provide eOriginal with sufficient test time and support on Subscriber’s equipment and systems to correct the defect.
6. TERMINATION AND SURVIVAL
6.1 Termination. These Terms and Conditions shall automatically terminate upon any termination of the Order Form. Upon any termination of these Terms and Conditions, DocuSign (and, therefore, eOriginal) shall remain entitled to receive payment of all fees incurred up to and including the effective date of termination.
6.2 Transition Services. If Subscriber fails to export all of its eDeposits from the Repository Services prior to the expiration or termination of this Agreement, Subscriber may request that eOriginal provide reasonable transition services for a period not to exceed 90 days to assist Subscriber in transferring Subscriber’s eDeposits from such Repository Services to another provider or exporting such eDeposits to external paper or electronic media (the "Winding Down Period"). As part of such transition services, eOriginal will also cooperate with Subscriber in the development of a transition plan and use reasonable efforts to assist Subscriber and/or its designated service provider in the transition. The transition services described herein shall be detailed in a services agreement between Subscriber and eOriginal, and provided at eOriginal’s then current standard professional service rates. eOriginal may, at its discretion, require advance payment and payment of all outstanding fees owed in connection with the Repository Services.
6.3 Effect of Termination. Subject to Section 6.2 above, upon the effective date of termination of these Terms and Conditions, the license and right to use of, and access to, the Repository Services by Subscriber and all Administrative Users shall immediately cease and Subscriber shall immediately return to eOriginal all components of the Repository Services, specifically including and not limited to the User’s Guide and the eCore software, in the custody, possession or control of Subscriber, destroy and purge all copies of such components and, at eOriginal's request, provide to eOriginal a written certification of Subscriber's compliance with this Section 6.3.
6.4 Survival. The following Sections shall survive any termination or expiration of these Terms and Conditions (or any eOriginal Work Order), in full force and effect to the extent so provided therein: Sections 5.3, 6, 7, and 8.
7. PROPRIETARY RIGHTS
7.1 Confidentiality. Subscriber acknowledges and agrees that all information provided by eOriginal in the performance of the Repository Services, including and not limited to all software and the User’s Guide, shall be protected by Subscriber under the DocuSign Corporate Subscriber Terms and Conditions as Confidential Information of eOriginal and, upon any termination of these Terms and Conditions, shall be returned by Subscriber to eOriginal, or destroyed, at eOriginal’s request.
7.2 The Repository Services. The Repository Services and all components thereof, including without limitation, Command Center, eCore and the User’s Guide, and the patents and other intellectual property rights related thereto, and any upgrades, modifications, adaptations, derivative works and enhancements to such materials, shall be and remain the property and Confidential Information of eOriginal and/or its applicable third party vendors; provided however that eOriginal shall not acquire through these Terms and Conditions any ownership interest in Subscriber's eDeposits or Confidential Information. Subscriber and Administrative Users shall have no right, title or interest in any such eOriginal materials, except to the extent of the license granted hereunder, and all such rights not expressly granted herein are reserved to eOriginal.
7.3 Marking. Neither party shall use the other party’s name or trademarks without the express written consent of such other party; provided however that either party may use the other's name and associated logo in a list of clients on its website and in pre-approved press releases and other marketing materials. Additionally, the Repository Services shall bear certain marks of eOriginal (the "Marks"). Subscriber acknowledges that the Marks and all other trademarks and logos displayed on the Repository Services are trademarks of eOriginal or its applicable vendors, and that these Terms and Conditions grants to Subscriber no proprietary rights in, or any right to modify or alter, any such Marks, trademarks or logos, or any copyright designations of eOriginal on or in the Repository Services or the User’s Guide.
8. INDEMNIFICATION; LIMITS OF LIABLITY
8.1 Indemnification of eOriginal. Subscriber shall indemnify, defend and hold DocuSign and eOriginal harmless from and against all damages, losses and expenses that arise from any third party claim that Subscriber or any Administrative User failed to comply with the terms of these Terms and Conditions or otherwise fail to use the Repository Services in accordance with the terms and conditions of the User’s Guide and/or these Terms and Conditions.
8.2 Indemnification of Subscriber. eOriginal shall indemnify, defend and hold Subscriber harmless from and against all damages, losses and expenses that arise from any third party claim that: (a) any portion of the Repository Services infringes or violates any third party intellectual property rights; provided that, upon receipt of written notice of such claim, eOriginal will have the option, in eOriginal's sole discretion, to: (i) promptly replace the Repository Services with software or a system that is non-infringing, (ii) promptly modify the Repository Services to make it non-infringing or obtain a license from the objecting third party, or (iii) in the event reasonable attempts at Section 8.2(i) and (ii) fail, terminate these Terms and Conditions and all access to the Repository Services by Subscriber and all its Administrative Users; or (b) eOriginal failed to maintain the confidentiality of Subscriber's Confidential Information in accordance with the DocuSign Corporate Subscriber Terms and Conditions. The remedies set forth in Section 8.2(a) above are Subscriber’s sole and exclusive remedy for any claims of actual or alleged infringement by eOriginal of any third party intellectual property rights.
8.3 Limitations. eOriginal shall have no liability or obligation to indemnify or hold harmless Subscriber to the extent any claim of infringement under Section 8.2(a) above is based upon: (i) use of the Repository Services in connection or in combination with equipment, devices, or software not supplied by or under the express direction of eOriginal; (ii) use of the Repository Services not in accordance with the User’s Guide; (iii) modifications of the Repository Services by or on behalf of Subscriber made without the express prior consent of eOriginal; or (iv) Subscriber’s failure to use updates or enhancements to the Repository Services which are made available to Subscriber by eOriginal.
8.4 General Limitations of Liability. Except with respect to indemnification obligations of Section 8.2 above, eOriginal shall not be directly liable to Subscriber, or to any Administrative User, under these Terms and Conditions for any actual, direct, special, indirect, incidental, exemplary, punitive, or consequential damages of any kind (including legal fees and expenses), whether the related claim is under theory of contract, tort (including negligence), strict liability, or otherwise, even if eOriginal has been advised of the possibility of such loss or damage.
8.5 Notices. Any notice required or permitted to be given to eOriginal under the DocuSign Corporate Subscriber Terms and Conditions shall be provided to eOriginal, Inc., 351 W. Camden Street, Suite 800, Baltimore, MD 21201, with a copy to [email protected].