Purchase Order Terms and Conditions
Version Date: November 26, 2018
These Purchase Order Terms and Conditions (“Terms”) govern the rights, remedies, and obligations of the supplier (“Supplier”) providing merchandise, including products, hardware, software, furniture, and equipment (“Goods”) and/or services (“Services”) to DocuSign, Inc. or any entity, affiliate, or subsidiary owned or controlled by DocuSign, Inc. (“DocuSign”) under purchase orders issued by DocuSign and any agreements, engagement letters, statements of work, or other documents executed or accepted by DocuSign and Supplier that refer to or incorporate these Terms (“Purchasing Document(s)”). By signing a Purchasing Document or by providing the Goods and/or Services described in the Purchasing Document to DocuSign, Supplier agrees to be bound by these Terms. DocuSign hereby expressly limits its acceptance of Supplier’s offer(s) to Supplier’s acceptance of these Terms and/or any Negotiated Contract only.
1. Controlling Documents. For clarity, all references to “Purchasing Document” include these Terms. The transaction described in the Purchasing Documents between DocuSign and Supplier is governed by each of the following as applicable: (i) an applicable negotiated and mutually signed agreement between DocuSign and Supplier, including any master services agreement(s) governing Supplier’s provision of the Goods or Services (each a “Negotiated Contract”); (ii) these Terms; and (iii) any other documents apart from these Terms, including purchase orders or invoices, making up the Purchasing Documents that have been expressly agreed to in writing by both parties. A Purchasing Document may contain additional terms, provided that if there is an explicit conflict of terms among the documents described in (i)-(iii) above, the Negotiated Contract will control (if one exists), followed by these Terms, and lastly, the terms set forth in the Purchasing Documents.
2. Price and Scope. Prices for Services and Goods, including all results of the Services developed by Supplier for DocuSign in performance of the Services either alone or jointly with others and whether completed or in-progress (“Deliverables”), are as specified in the Purchasing Document. DocuSign will have no payment obligation for: (i) additional or different Services or Goods rendered other than those described in a Purchasing Document; (ii) Services performed or Goods delivered prior to the effective date of the Purchasing Document; or (iii) amounts exceeding what is expressly authorized in the Purchasing Document. Any changes to the terms set forth in a Purchasing Document, including changes to the type or amount of Services or Goods rendered, specifications, delivery schedules, or prices, must be mutually set forth in a mutually approved and executed written agreement between the parties. Unless expressly authorized in the Purchasing Document, Supplier will not be entitled to be reimbursed for travel, living, or other expenses unless such expenses are pre-approved in writing by DocuSign.
3. Payment Terms. Except as otherwise specifically set forth in a Purchasing Document, Supplier shall invoice DocuSign monthly. Invoiced amounts for which no due date is otherwise established will be due and payable within forty-five (45) days from Supplier’s receipt of an undisputed invoice submitted in conformance with the requirements of this Section. An acceptable invoice must contain sufficient detail to allow DocuSign to determine the accuracy of the amounts billed by Supplier and must include, at a minimum, reference to: (i) the DocuSign entity purchasing the Goods or Services; (ii) the valid purchase order number; (iii) a description of the items, quantities, and unit prices for all Services and Goods invoiced; and (iv) any applicable tax and VAT information. Each invoice must reference only one (1) purchase order number, and Supplier shall submit a separate invoice for each Purchasing Document.
4. Taxes. Except as otherwise provided in this Section or as specifically set forth in a Purchasing Document, the amounts to be paid by DocuSign to Supplier do not include taxes. DocuSign is not liable for any taxes that Supplier is legally obligated to pay, including net income or gross receipts taxes, franchise taxes, and property taxes. DocuSign will pay Supplier any sales, use, or value-added taxes it owes for the Services and which applicable law requires Supplier to collect from DocuSign. If DocuSign provides Supplier a valid exemption certificate, Supplier will not collect the taxes covered by such certificate. If applicable law requires DocuSign to withhold taxes from payments to Supplier, DocuSign may withhold those taxes and pay them to the appropriate taxing authority and, in such case, DocuSign will deliver to Supplier an official receipt for such taxes. DocuSign will use reasonable efforts to minimize any taxes withheld to the extent allowed by law.
5. Delivery, Packing, and Shipment. Delivery of Goods and Deliverables will be strictly in accordance with the schedule set forth in a Purchasing Document. Notwithstanding the foregoing, all Goods and Deliverables to be shipped shall be prepared for shipment in a manner that follows good commercial practice, is acceptable to common carriers, and is adequate to ensure safe arrival. Unless otherwise specified in the Purchasing Document, all shipments shall be Free On Board Destination or, for international shipments, Delivery Duty Paid (as defined in The Incoterms rules 2010). Notwithstanding any prior inspections, Supplier bears all risk of loss, damage, or destruction prior to acceptance of Goods or Deliverables by DocuSign. Such acceptance will not be unreasonably delayed or put off by DocuSign. Any delays in shipment must be reported by Supplier to DocuSign without unreasonable delay.
6. Termination. A Purchasing Document will continue in force until the later of: (i) completion of the Services; (ii) delivery and acceptance of the Goods; or (iii) expiration of all warranties for Goods or Deliverables. Except as otherwise specifically set forth in a Purchasing Document: (x) a Purchasing Document for Goods may be terminated or cancelled by DocuSign, in part or in whole, for any reason immediately upon written notice; (y) a Purchasing Document for Services and/or Deliverables may be terminated or cancelled by DocuSign, in whole or in part, for convenience with thirty (30) days’ prior notice; and/or (z) a Purchasing Document for Services and/or Deliverables may be terminated by DocuSign, in whole or in part, effective as of the occurrence of Supplier’s curable breach if Supplier fails to cure the breach within thirty (30) days of notice of such breach from DocuSign. Upon the effective date of termination by DocuSign, Supplier shall: (a) immediately cease all work under the Purchasing Document and DocuSign shall be liable for payment only for authorized work completed as of the date of termination; and (b) provide DocuSign with any and all work in progress or completed work under the Purchasing Document. Supplier will not charge DocuSign for cancelling Purchasing Documents for standard Goods. If DocuSign terminates a Purchasing Document for Services as a result of Supplier’s uncured breach, Supplier will refund DocuSign a pro rata amount of any prepaid fees for Services and DocuSign will not be liable for any further amounts payable under the Purchasing Document. Notwithstanding the foregoing, provisions of these Terms relating to limitation of liability, indemnity, payment, confidentiality, security, privacy, and other provisions which by their nature are intended to survive will survive any termination or expiration of a Purchasing Document.
7. Warranties. Supplier warrants to DocuSign that it will perform or deliver the Services and Goods: (i) with due care, skill, and diligence; (ii) in a professional and workmanlike manner; (iii) in accordance with generally accepted industry standards and practices; (iv) in conformity with the descriptions and specifications in the Purchasing Document; and (v) free of the rightful claim of third parties by way of infringement, conflict of interest, or the like. In addition, Supplier warrants that all Goods will be merchantable and free from defects in design, workmanship, and materials.
8. Acceptance. Payment does not constitute DocuSign’s acceptance of Goods or Deliverables. Supplier will test, remedy, and/or replace, without charge to DocuSign, any and all portions of any Service or Deliverable that DocuSign finds to be defective or non-conforming. Unless otherwise provided in a Purchasing Document, DocuSign will have thirty (30) days from receipt of Goods or Deliverables or such longer time as may be reasonable under the circumstances in which to inspect and accept such Goods or Deliverables. If Supplier is unable to remedy any defective or non-conforming Service, Good, or Deliverable within a reasonable period of time, DocuSign may (x) terminate the Purchasing Document; (y) return all or part of the defective or nonconforming Deliverables or Goods to Supplier; and/or (z) keep the defective or non-conforming Deliverables and Goods. DocuSign will not be obligated to make any payments for non-conforming Services or Goods and shall be entitled to a refund of all prepaid fees for such non-conforming Goods and, in the case of Services, a pro-rated refund for any non-conforming Services. Shipment or storage of rejected Goods or Deliverables will be at Supplier’s expense
9. Intellectual Property. Each party will own and retain all right to its pre-existing intellectual property and to intellectual property developed outside of the scope of the Goods and Services provided under these Terms. Except as otherwise set forth in a Purchasing Document and this Section, no other rights, transfers, or licenses with respect to either party’s intellectual property are granted and Supplier hereby assigns and transfers, to the maximum extent allowed by applicable law, to DocuSign and its successors and assigns all right, title, and interest in all work product (in any form or format) resulting from a Deliverable, inclusive of, but not limited to, all intellectual property rights in such work product. If Supplier uses any pre-existing Supplier or third-party intellectual property in any Good or Service, Supplier will continue to own such intellectual property; however, Supplier grants DocuSign a worldwide, nonexclusive, perpetual, irrevocable, royalty-free, fully paid-up right and license, under all current and future intellectual property, to such intellectual property subject to any limitations or terms set forth in the applicable Purchasing Document.
10. Confidentiality. DocuSign may supply certain proprietary and confidential information to Supplier during the course of its engagement. “Confidential Information” means all information disclosed by DocuSign to Supplier that is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, information relating to DocuSign’s security policies and business procedures. Notwithstanding the foregoing, Confidential Information does not include: information that (i) was already lawfully known to Supplier at the time of disclosure by DocuSign; (ii) was or is obtained by Supplier from a third party not known by Supplier to be under an obligation of confidentiality with respect to such information; (iii) is or becomes generally available to the public other than by violation of these Terms or another valid agreement between the parties; or (iv) was or is independently developed by Supplier without use of or reference to DocuSign’s Confidential Information. Supplier and Supplier Personnel (defined below) shall not make any use of Confidential Information except as required in the performance or provisioning of the Service, Deliverables, or Goods and shall not disclose any Confidential Information to any person or entity except as necessary for the performance of the Services or 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 Supplier accepts responsibility for a breach of these Terms by any party to whom it provides access to the Confidential Information. Supplier agrees to protect 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. If Supplier is required by law to disclose any of DocuSign’s Confidential Information, Supplier will promptly notify DocuSign and reasonably cooperate in any effort by DocuSign to prevent or limit such disclosure. Unless notification is delayed by the actions or demands of a law enforcement agency, Supplier shall promptly report to DocuSign any unauthorized acquisition, use, or disclosure of Confidential Information. Supplier acknowledges that, as between the parties, all Confidential Information it receives from DocuSign is proprietary to and exclusively owned by DocuSign. Nothing in these Terms grants Supplier any right, title, or interest in or to any of DocuSign’s Confidential Information. Supplier’s incorporation of DocuSign’s Confidential Information into any of its own materials will not render Confidential Information non-confidential. Supplier acknowledges that any breach of confidentiality may cause irreparable, non-monetary injury to DocuSign, the extent of which may be difficult to ascertain. Accordingly, DocuSign may be entitled to seek injunctive relief in addition to all remedies available at law and/or equity, to prevent or mitigate any breaches of these Terms or damages that may otherwise result from those breaches. The obligations under this Section of these Terms are in addition to, and supplement, each party’s obligations of confidentiality under applicable law and under any nondisclosure or other agreement between the parties.
12. Lead Generation Services. If Supplier provides any Personal Data or other information for purposes of identifying a potential customer or user of DocuSign’s Services (“Lead Information”), Supplier agrees to be bound by the terms of the Lead Generation Appendix attached hereto as Appendix 1.
13. Supplier Personnel. Supplier will determine the methods, details, and means of performing the Services. Unless set forth in a Purchasing Document, DocuSign will not control, direct, or supervise Supplier’s employees, independent contractors, vendors, agents, permitted subcontractors, or invitees (“Supplier Personnel”) in the performance of the Services. Supplier must use adequate numbers of qualified individuals with suitable training, education, experience, and skills to perform the Services. Any Supplier Personnel, or employees of Supplier’s subcontractors assigned to provide Services, with access to DocuSign’s facility or given access to DocuSign’s internal systems will have undergone a diligent background check. Supplier shall provide such information to DocuSign upon request. Supplier agrees to take all reasonable measures to ensure that Supplier Personnel will not engage in inappropriate conduct while performing Services for DocuSign and agrees that Supplier Personnel who engage in inappropriate conduct shall be removed and replaced immediately upon DocuSign’s reasonable request. Supplier shall require Supplier Personnel performing any of the Services to observe at all times the security, confidentiality, and safety policies of DocuSign. Supplier shall, at all times, be fully liable for the performance, acts, and omissions of their Supplier Personnel. Supplier is responsible for ensuring that all Supplier Personnel meet the licensing, security, labor, and site requirements for the locale where the Services are being performed. Supplier is solely responsible for compensating Supplier Personnel and for withholding and paying all amounts required for any employer or employee tax or contribution, including local, state, and federal income tax, unemployment insurance, and disability insurance.
14. Indemnification. Supplier shall indemnify, defend (at DocuSign’s option), and hold harmless DocuSign and its affiliates, and each of their officers, directors, employees, and agents from and against all third-party claims, demands, suits, causes of action, awards, judgments, and liabilities, including reasonable attorneys’ fees and costs, (collectively “Claims”) arising out of or alleged to have arisen out of: (i) Supplier or Supplier Personnel’s fraud, negligence, willful or intentional misconduct; (ii) any actual or alleged infringement, misappropriation, or violation of any intellectual property rights of a third party by any Deliverable or Good or in performance of the Services; (iii) any claim for bodily injury, death, or property damage to the extent caused by Supplier in connection with the Services; or (iv) Supplier’s breach of a provision of these Terms, except to the extent directly due to DocuSign’s own negligence or intentional misconduct. DocuSign will provide timely notice to Supplier of Claims, but late notice will only relieve Supplier of its obligation to indemnify to the extent that it has been prejudiced by the delay. Supplier will control the defense of Claims, provided that Supplier will not settle or compromise Claims in a manner that does not fully discharge the Claims or that imposes any obligation on, or restricts any right of, DocuSign without DocuSign’s written consent.
15. Limitation of Liability. EXCEPT FOR SUPPLIER’S OBLIGATIONS TO INDEMNIFY OR A BREACH OF CONFIDENTIALITY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER UNDER ANY LEGAL THEORY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, LOST PROFITS, OR INCIDENTAL DAMAGES, HOWEVER CAUSED, ARISING OUT OF OR RELATING TO THESE TERMS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS (INCLUDING A PURCHASING DOCUMENT), DOCUSIGN’S AGGREGATE LIABILITY TO SUPPLIER ARISING OUT THESE TERMS, UNDER ANY THEORY, SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY DOCUSIGN TO SUPPLIER UNDER THESE TERMS IN THE TWELVE (12) MONTHS LEADING UP TO THE CLAIM.
16. Insurance. Supplier will maintain, at its sole expense, the following insurance and minimum limits (or the equivalent limits in applicable local currency): (i) commercial general liability insurance limits of $1,000,000 USD per occurrence for personal injury and/or property damage (including Automobile Liability); (ii) Employers Liability insurance with minimum limits of $500,000 USD per occurrence; and (iii) statutory limits for any claims under any applicable workers compensation laws or other similar laws or regulations that are applicable to acts of Supplier and/or its agents, employees, or subcontractors under these Terms. If the provision of Goods or Services under these Terms causes professional liability, errors, and/or omissions liability, Supplier will maintain insurance coverage for such liability with policy limits of not less than $2,000,000 USD, each claim, or the equivalent limits in applicable local currency. Upon DocuSign’s request, Supplier shall provide DocuSign with a certificate of insurance evidencing such insurance coverages.
17. Affirmative Action. DocuSign, Inc. is a federal contractor. As a result, but only if applicable to Supplier given the Goods or Services provided to DocuSign, Inc., the Equal Opportunity Clause set forth in 41 C.F.R. parts 60-1.4(a), and the employee notice found at 29 C.F.R. Part 471, Appendix A to Subpart A are incorporated by reference herein. In addition, but also only if applicable, Supplier shall abide by the requirements of 41 C.F.R. §§ 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals on the basis of protected veteran status or disability, and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and individuals with disabilities.
18. Sanctions Compliance. Supplier represents and warrants that Supplier is in compliance in all material respects with all current United States economic sanctions programs (collectively, the “U.S. Sanctions Program”) and, specifically, that none of Supplier nor any of its affiliates, officers, directors, employees, nor, to the knowledge of Supplier, any of its Supplier Personnel, including agents, consultants, sales representatives, resellers, or any other person acting on behalf of Supplier, is: (i) a person or entity whose name appears on the list of Specially Designated Nationals and Blocked Persons (“SDN”) published by the United States Department of the Treasury Office of Foreign Assets Control (“OFAC”); (ii) an agent, department, or instrumentality of, or is otherwise beneficially owned by (with fifty percent or greater ownership), controlled by or acting on behalf of, directly or indirectly, (a) any SDN or (b) any person or entity that is listed on any of the OFAC’s sanctions list or otherwise blocked or subject to sanctions under other U.S. Sanctions Programs; or (iii) owned or controlled by any country or territory that is subject to any U.S. Sanctions Program.
19. Anti-Corruption. With respect to the Goods or Services provided under these Terms, Supplier and Supplier Personnel shall comply with all applicable national and international anti-corruption laws, such as the Foreign Corrupt Practices Act 15 U.S.C. § 78dd-1, et seq. and the United Kingdom Bribery Act.
20. Non-Publicity. Supplier will not: (i) issue any press releases referencing DocuSign; (ii) make any disclosures regarding a Purchasing Document, its terms, or the nature or existence of any relationship between the parties; or (iii) use DocuSign’s trademarks, service marks, corporate or other trade names, or other proprietary marks without DocuSign’s prior written consent. Notwithstanding the foregoing, if the purpose of the engagement under the Purchasing Document includes DocuSign’s event sponsorship or other marketing activities performed by Supplier on behalf of DocuSign (as detailed in the Purchasing Document), DocuSign grants Supplier a limited, non-exclusive, non-transferable, royalty-free license to use and display its name, trademarks, service marks, copyrights and logo for signage and other purposes solely related to DocuSign’s sponsorship of the event and in strict accordance with any logo, branding, or trademark guidelines communicated to Supplier.
21. Assignment. Supplier shall not assign any right or obligation under the Purchasing Document without prior written consent of DocuSign. DocuSign may assign its rights under a Purchasing Document or any portion thereof to a DocuSign affiliate or successor.
22. Notices. Any notice required or permitted to be given in accordance with the Purchasing Document will be effective only if it is in writing and sent using: (a) DocuSign’s on-demand electronic signature and digital transaction management service; (b) by certified or registered mail; or (c) a nationally recognized overnight courier, to the appropriate party at the address set forth in the Purchasing Document.
23. Governing Law and Venue. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the Purchasing Documents. Unless otherwise specified in a Negotiated Contract, these Terms shall be governed by and construed in accordance with following laws based on the location of the DocuSign entity contracting for the Services:
(i) European Union: These Terms and any disputes or claims arising out of or in connection with them or their subject matter or formation (including without limitation non-contractual disputes or claims) are governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms or their subject matter or formation (including non-contractual disputes or claims).
(ii) Australia: These Terms are governed by the laws of New South Wales, Australia, and both Supplier and DocuSign agree to submit to the non-exclusive jurisdiction of the New South Wales courts.
(iii) Singapore: These Terms are governed by the laws of Singapore, and both Supplier and DocuSign agree to submit to the non-exclusive jurisdiction of the courts of the Republic of Singapore.
(iv) All Other Locations: These Terms are governed by the laws of the State of California, U.S.A., without reference to its choice of law rules to the contrary. The parties hereby irrevocably consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in San Francisco County, California, for the purposes of adjudicating any dispute arising out of these Terms. To the extent permitted by law, choice of law rules, the United Nations Convention on Contracts for the International Sale of Goods, and the Uniform Computer Information Transactions Act as enacted shall not apply.
In any action or suit to enforce any right or remedy under the Purchasing Document or to interpret any provision of the Purchasing Document, to the extent permitted by law, choice of law rules, the United Nations Convention on Contracts for the International Sale of Goods, and the Uniform Computer Information Transactions Act as enacted shall not apply and the prevailing party will be entitled to recover its costs, including reasonable attorney’s fees.
24. General. Supplier is an independent contractor of DocuSign and shall not be construed or deemed to be an employee, agent, partner, associate or joint venturer of DocuSign. All Supplier Personnel performing Services are, and shall for the period of assignment remain, employees of Supplier or subcontractors of Supplier (where permitted by these Terms) and such Supplier Personnel will not be entitled to any of DocuSign’s employee benefits. A breach may be waived only in writing and will not waive other or subsequent breaches. The remedies provided herein are cumulative to further remedies provided by law or in equity. If any part of these Terms is held to be unenforceable, it will be severed from these Terms and be deemed replaced with a provision that captures as much of the parties’ original intent as is possible in an enforceable provision. A Purchasing Document constitutes the entire agreement between the parties with respect to its subject matter, supersedes all prior agreements, whether written or oral, and supersedes and merges all prior discussions between DocuSign and Supplier. These Terms and the terms of any Purchasing Document may be amended only by a written document executed by both parties.
Lead Generation Appendix
1. Definitions. In this Appendix, the terms "controller," "data subject," and "processing" have the meaning given to them under GDPR.
2. License Grant. Supplier grants to DocuSign a non-exclusive, perpetual (or for a European Union-based Supplier, for the duration of legal protection of rights), irrevocable, worldwide, royalty-free, transferrable license to access and use the Lead Information for any business purposes, including to contact and/or sell DocuSign products or services to potential customers, resellers, or end users. Unless otherwise specified in a Negotiated Contract, Supplier represents and warrants that it has sufficient rights to make the foregoing license grant with respect to Lead Information delivered to DocuSign, and Supplier will indemnify DocuSign and its affiliates, and each of their officers, directors, employees, and agents, as provided in Section 14 (“Indemnification”) of the Terms in the event of any third-party claim alleging acts or omissions that would constitute a breach of the representations and warranty contained in this Section.
3. Relationship of the Parties. To the extent that the Lead Information includes any Personal Data collected and processed by Supplier, the parties intend, in relation to such Personal Data, that both parties act as independent controllers (not as joint controller with the other party).
4. Obligations of DocuSign as Data Controller. DocuSign may use and process the Lead Information received from Supplier for its own business purposes. DocuSign shall comply with all applicable Data Protection Legislation when processing such Lead Information, provided that DocuSign may rely on Supplier’s representations and warranties herein when using Lead Information supplied by Supplier.
5. Obligations of Supplier as Data Controller. Supplier alone shall decide how to manage the processing of such Personal Data in relation to the provision of Lead Information, including notably, which data to collect, how to collect it, how long to store it, and which security measures to apply to it. As the main point of contact for the data subjects, Supplier is liable for providing the data subjects with proper information in accordance with Data Protection Legislation and, where applicable, obtaining their consent for the communication and use of their Personal Data by DocuSign as contemplated herein. The Supplier is also responsible for managing data subject requests to exercise their data protection rights. The Supplier shall immediately inform DocuSign in case of potential non-compliance of the Lead Information with the Data Protection Legislation.
6. Cooperation by Supplier. Supplier shall provide DocuSign, upon request, with any document and information necessary for DocuSign to comply with Data Protection Legislation related to the Services, including any information necessary to complete its data processing assessment. In case of control or investigation from a data protection authority, Supplier shall provide DocuSign with all relevant documents and information related to the Lead Generation Services to allow DocuSign to cooperate with the data protection authority.
7. Personal Data Request. If either party receives any request or claim related to Personal Data collected and processed in relation to the Services, such party shall inform the other party without undue delay and provide all reasonable assistance to answer to such request or claim. Supplier shall remain the main point of contact for the data subjects.