DOCUSIGN, INC. TERMS AND CONDITIONS FOR DOCUSIGN ROOMS
These Terms and Conditions govern the use of DocuSign Rooms by a Subscriber and its Authorized Users. By using DocuSign Rooms, each party agrees as follows:
1. DEFINITIONS
“Account” means a Subscriber’s account on the DocuSign Signature service that is used to create and participate in Rooms.“Authorized User” means any person registered under Subscriber’s Account who will have the ability to participate in Rooms and who may act as a Room Owner if Subscriber elected to purchase DocuSign Rooms and DocuSign Rooms is enabled for its Account.
“DocuSign Rooms” means DocuSign’s service that facilitates the upload, access, retention and sharing of files data, and other content between parties via the Internet.
“Order Form” means the schedule that sets forth the DocuSign Rooms pricing, features and options selected by Subscriber. An Order Form is not binding until it is duly executed by both DocuSign and Subscriber, at which point it becomes incorporated into and part of the Agreement.
“Room” means the online environment where Room Owners and Room Participants may interact using DocuSign Rooms.
“Room Owner” means Subscriber or its designated Authorized User(s) who may access the features of DocuSign Rooms that includes the creation and removal of a Room and a Room’s related content, if Subscriber elected to purchase DocuSign Rooms and DocuSign Rooms is enabled for its Account.
“Room Participant” means a DocuSign Subscriber or Authorized User(s) invited to access a Room by a Room Owner.
“Rooms Transaction Data” means the metadata associated with a Room (such as event history, image hash value, method and time of Room deletion, Room Owner and Room Participant names, email addresses, Room and File IDs) and maintained by DocuSign in order to establish the digital audit trail required by the DocuSign Signature service.
“Subscriber” means the Subscriber identified in the Order Form or any registered user of DocuSign Signature.
“DocuSign Signature” means DocuSign’s on-demand electronic signature service, which provides online display, certified delivery, acknowledgment, electronic signature, and storage services for eContracts via the Internet.
“System” refers to the software systems and programs, the communication and network facilities, and the hardware and equipment used by DocuSign or its agents to provide DocuSign Rooms.
2. DOCUSIGN ROOMS
2.1 During the Term and subject to these Terms and Conditions, Subscriber and its Authorized Users, with a DocuSign Rooms enabled Account, will have the right to participate in, create and/or manage DocuSign Rooms within its Account when Subscriber uses the new DocuSign experience (DocuSign Rooms is not available when using the classic DocuSign experience). Subscriber may not resell or otherwise provide or assist with the provision of DocuSign Rooms for the benefit of another party or as a part of a service Subscriber offers to third parties or as a sublicensed arrangement.2.2 Room Owners will have the right to create and delete Rooms, manage Room Participants, add comments and control aspects of content, data or files shared in DocuSign Rooms.
2.3 Room Participants may view other participants, add comments and upload or view content, data or files for which they are granted access. Distinguishable from the Room Owner, a Room Participant may not create Rooms, invite Room Participants to a Room or remove content, data or files owned by other Room Participants or the Room Owner.
3. SUBSCRIBER RESPONSIBILITIES
3.1 DocuSign’s provision of DocuSign Rooms is conditioned on Subscriber’s acknowledgment of and agreement to the following:
(i) Subscribers are entirely responsible for any and all activities that occur in all Rooms created under a Subscriber’s Account and for ensuring that use of DocuSign Rooms complies fully with this Agreement;
(ii) Between DocuSign and Subscriber, Subscriber has exclusive control over and responsibility for the content, quality, and format of any transaction facilitated through DocuSign Rooms. DocuSign makes no representation or warranty regarding the transactions sought to be effected by Subscriber’s use of DocuSign Rooms;
(iii) Between DocuSign and Subscriber, Subscriber is solely responsible for the nature and content of all materials, works, data, statements, and other visual, graphical, video, and written or audible communications facilitated or otherwise processed through DocuSign Rooms; and,
(iv) DocuSign does not represent or endorse the accuracy or reliability of any content, advice, opinion, statement, suggestion or other information (“Third Party Content”) offered by third parties or other customers that is shared or distributed through DocuSign Rooms. Any such Third Party Content presented or disseminated through DocuSign Rooms solely represents the view of the respective author or provider of such content, who remains solely liable for the accuracy or reliability thereof. Subscriber’s reliance on Third Party Content will be at Subscriber’s sole risk.
3.2 Subscriber may not store, transmit, upload or share through DocuSign Rooms any files or otherwise engage in any conduct that:
(i) violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity or that may otherwise be unlawful or give rise to civil or criminal liability;
(ii) involves uploading, posting, emailing, transmitting or otherwise making available content or data that Subscriber does not have the right to make available under any law or under contractual or fiduciary relationships (such as insider information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements, etc.);
(iii) is likely to damage, disable, overburden, or impair the System or DocuSign Rooms or otherwise interfere with the use or enjoyment of DocuSign Rooms by others;
(iv) contains viruses or any other computer code, files or programs that interrupt, impair, destroy or otherwise limit in any way the functionality of any computer software or hardware or telecommunications equipment, or otherwise permit the unauthorized use of a computer or computer network; or,
(v) violates this Agreement or any other terms of use, rules or policies applicable to the DocuSign Rooms.
3.3 DocuSign does not monitor the content processed through DocuSign Rooms, but in accordance with DMCA (Digital Millennium Copyright Act) safe harbors, it may suspend any use of DocuSign Rooms, or remove or disable any content that DocuSign reasonably and in good faith believes violates this Agreement or applicable laws or regulations. DocuSign will use commercially reasonable efforts to notify Room Owners prior to any such suspension or disablement, unless DocuSign reasonably believes that:
(i) it is prohibited from doing so under applicable law or under legal process, such as court or government administrative agency processes, orders, mandates, and the like; or
(ii) it is necessary to delay notice in order to prevent imminent harm to the System, DocuSign Rooms, or a third party. Under circumstances where notice is delayed, DocuSign will provide the notice if and when the related restrictions in the previous sentence no longer apply.
4. OWNERSHIP
4.1 DocuSign owns various intellectual property and technology rights associated with DocuSign Rooms. Subscriber’s rights with respect to the foregoing are limited to the rights that are granted under this Agreement and no other. DocuSign does not license or transfer to Subscriber, or any other third party, any of DocuSign’s technology or other intellectual property rights. All right, title, and interest in and to DocuSign’s technology and intellectual property, whether patent, copyright, trade secret, trademark, service mark or moral rights, remain solely with DocuSign at all times. Subscriber will not, directly or indirectly, reverse engineer, decompile, disassemble, or otherwise attempt to derive source code or other trade secrets from or about DocuSign Rooms.4.2 Data, content and information owned by Subscriber that is uploaded to a Room is and will remain, as between Subscriber and DocuSign, owned by Subscriber.
5. FEES AND PAYMENT TERMS
5.1 Subscriber who elects to purchase DocuSign Rooms will be invoiced as set forth in the Order Form. Unless otherwise specified in an applicable Order Form, the first invoice will coincide with the Order Start Date and, unless otherwise agreed by the parties, all amounts will be denominated in U.S. dollars. DocuSign may assess finance charges equal to the lesser of 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law. Said Subscriber will be responsible for any reasonable attorneys’ fees, costs and expenses incurred by DocuSign to collect any amounts that are not paid when due.5.2 DocuSign may accept any partial payment, regardless of any language that would purport to limit DocuSign’s rights to collect further amounts, and without prejudice to DocuSign’s right to recover the balance of the amount due or to pursue any other right or remedy. Amounts due to DocuSign may not be withheld or offset by Subscriber for any reason against amounts due or asserted to be due to Subscriber from DocuSign. If Subscriber fails to timely pay any undisputed amounts due under this Agreement, then without limitation of any of its other rights or remedies, DocuSign may suspend performance of those services until DocuSign receives all past due amounts from Subscriber.
5.3 Other than income taxes imposed on DocuSign, Subscriber will bear all taxes, duties, VAT and all other governmental charges (collectively, “taxes”) resulting from this Agreement or transactions conducted in relation to this Agreement or DocuSign Rooms. If Subscriber is exempt from any applicable taxes, it will provide evidence reasonably satisfactory to DocuSign of its tax exempt status, and DocuSign will not include such taxes in its invoices to Subscriber.
6. TERM AND TERMINATION
6.1 Between DocuSign and Room Owner, the term of this Agreement will begin on the Order Start Date and, unless terminated sooner as provided herein, will continue until the Order End Date specified on the Order Form (the “Term”). Prior to the Order Start Date, DocuSign may allow Subscriber to access DocuSign Rooms, which will be governed by these Terms and Conditions. If either party commits a material breach or default in the performance of any of its obligations under this Agreement, then the other party may terminate this Agreement by giving the defaulting party written notice of termination, unless the material breach or default in performance is cured within 30 days after the defaulting party receives notice thereof.
6.2 Between DocuSign and Room Participant, the term of this Agreement will continue for the duration of Subscriber’s use of DocuSign Rooms as a Room Participant.
6.3 Post-Termination Obligations. If this Agreement expires or is terminated for any reason: (a) Subscriber will pay to DocuSign any amounts that have accrued before, and remain unpaid as of, the date of the termination or expiration; (b) any and all liabilities between the parties that have accrued before the effective date of the termination will survive; (c) licenses and use rights granted to Subscriber with respect to DocuSign Rooms and intellectual property will immediately terminate; (d) DocuSign’s obligation to provide any further services to Subscriber under this Agreement will immediately terminate; and (e) the parties’ rights and obligations under Sections 6.3, 7, 8.3, 9.3, 9.4 and 10 through 11 will survive.
7. THIRD PARTY CLAIMS
7.1 By DocuSign. DocuSign will indemnify Subscriber, and its employees, directors, agents, and representatives from, and defend the Indemnified Parties against, any actual or threatened third party claim or legal or administrative agency action or proceeding (“Claim”) to the extent arising from or related to any alleged infringement by DocuSign of any third party intellectual property rights.
7.2 By Subscriber. Subscriber will indemnify DocuSign, and its employees, directors, agents, and representatives from, and defend the Indemnified Parties against, any Claim to the extent arising from or related to Subscriber’s use of DocuSign Rooms or any violation of these Terms and Conditions.
7.3 Procedures. The parties’ respective indemnification obligations above are conditioned on: (a) the Indemnified Parties giving the Indemnifying Party prompt written notice of the Claim, except that the failure to provide prompt notice will only limit the indemnification obligations to the extent the Indemnifying Party is prejudiced by the delay or failure; (b) the Indemnifying Party has full and complete control over the defense and settlement of the Claim; (c) the relevant Indemnified Parties providing assistance in connection with the defense and settlement of the Claim as the Indemnifying Party may reasonably request; and (d) the Indemnified Parties’ compliance with any settlement or court order made in connection with the Claim (as long as the settlement does not include any payment of any amounts by or any admissions of liability, whether civil or criminal, on the part of any of the Indemnified Parties). The Indemnifying Party will indemnify the Indemnified Parties against: (i) all damages, costs, and attorneys’ fees finally awarded against any of them with respect to any Claim; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of the Claim (other than attorneys’ fees and costs incurred without the Indemnifying Party’s consent after it has accepted defense of such Claim); and (iii) all amounts that the Indemnifying Party agreed to pay to any third party in settlement of any Claims arising under this Section 7 and settled by the Indemnifying Party or with its approval.
8. DOCUSIGN ROOMS FILE STORAGE AND DELETION
8.1 The maximum number of Rooms, number of files and file size/capacity limitations for use of DocuSign Rooms will be set forth in an Order Form for Subscribers that elect to purchase DocuSign Rooms for their Account. If Subscriber fails to comply with such restrictions, without limitation of any of its other rights or remedies, DocuSign may suspend Subscriber’s Account and use of DocuSign Rooms.
8.2 By default, DocuSign will not remove Subscriber’s files stored in DocuSign Rooms during the Term, and Subscriber may access files it uploaded to DocuSign Rooms and/or that are within any Room it created at any time while this Agreement is in effect. However, Subscriber has the option to delete any file it has uploaded to a Room, and Subscriber may also remove a Room and its related files when Subscriber is the Room Owner.
8.3 If Subscriber, as a Room Owner, fails to retrieve content uploaded to DocuSign Rooms prior to the expiration or termination of the Agreement, Subscriber may request, within 90 days after such expiration or termination, that DocuSign provide professional services to assist in retrieving uploaded files remaining in Rooms that it is the Room Owner, the details of which professional services will be set out in a separate Order Form at the current professional services rates. After such 90 day period, DocuSign shall have no obligation to maintain or provide any remaining DocuSign Rooms files and/or Rooms Transaction Data and DocuSign shall have the right to delete all DocuSign Rooms files and/or Rooms Transaction Data in the System or otherwise in its possession or under its control.
9. WARRANTIES, DISCLAIMERS, AND LIMITATIONS OF LIABILITY
9.1 DocuSign Warranties. DocuSign represents and warrants that: (a) DocuSign Rooms as delivered to Subscriber and used in accordance with reasonably applicable industry standards will not infringe on any United States patent, copyright or trade secret; and (b) DocuSign Rooms will be provided at least at the same level of service as provided by DocuSign generally to its other customers for DocuSign Rooms.9.2 Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against it in accordance with its terms; (b) no authorization or approval from any third party is required in connection with its execution, delivery, or performance of this Agreement; and (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
9.3 Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 9, DOCUSIGN: (A) MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND -- WHETHER EXPRESS, IMPLIED IN FACT OR BY OPERATION OF LAW, OR STATUTORY -- AS TO ANY MATTER WHATSOEVER; (B) DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THE LIKE; AND (C) DOES NOT WARRANT THAT DOCUSIGN ROOMS IS OR WILL BE ERROR-FREE OR MEET SUBSCRIBER’S REQUIREMENTS. SUBSCRIBER HAS NO RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF DOCUSIGN TO ANY THIRD PARTY.
9.4 Limitations of Liability. Excluding each party’s indemnification obligations under Sections 7:
(i) neither party will be liable to the other party for consequential, incidental, special, or exemplary damages arising out of or related to Subscriber’s use of DocuSign Rooms, including, but not limited to, lost profits or loss of business, even if apprised of the likelihood of such losses. The foregoing limitation will apply regardless of the form or cause of the action.
(ii) neither party’s total aggregate liability of any kind arising out of or relating to this Agreement, regardless of the forum and basis of action or claim (contract, tort, or otherwise), will exceed the total amount payable by Subscriber to DocuSign under the Order Form to which the liability relates.
10. CONFIDENTIALITY
10.1 “Confidential Information” means any trade secrets or other information of DocuSign or Subscriber, whether of a technical, business, or other nature (such as DocuSign's software or Subscriber’s uploaded content), that is disclosed to the other party (the “Recipient”) and that is marked “confidential,” or, whether or not marked, that a reasonable person would understand to be confidential given the circumstances of the disclosure. Confidential Information does not include any information that: (a) was known to Recipient before receiving it from the disclosing party; (b) is independently developed by Recipient without use of or reference to any Confidential Information of the other party; (c) is acquired by Recipient from another source that did not receive it in confidence from the other party to this Agreement; or (d) is or becomes part of the public domain through no fault or action of Recipient.
10.2 Restricted Use and Nondisclosure. During and after the Term, Recipient will: (a) use the Confidential Information of the other party solely for the purpose for which it is provided; (b) not disclose such Confidential Information to a third party, except on a need-to-know basis to its attorneys, auditors and consultants who are under confidentiality obligations at least as restrictive as contained herein; and (c) protect such Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
10.3 Required Disclosure. If Recipient is required by law to disclose Confidential Information of the other party or the terms of this Agreement, Recipient will give prompt written notice to the other party before making the disclosure, unless prohibited from doing so by the legal or administrative process, and assist the disclosing party to obtain where reasonably available an order protecting the Confidential Information from public disclosure.
10.4 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.
10.5 Remedies. Recipient acknowledges that any actual or threatened breach of this Section 10 may cause irreparable, non-monetary injury to the disclosing party, the extent of which may be difficult to ascertain. Accordingly, the disclosing party is entitled to (but not required to) seek injunctive relief in addition to all remedies available to the disclosing party at law and/or in equity, to prevent or mitigate any breaches of this Agreement or damages that may otherwise result from those breaches. Absent written consent of the disclosing party to the disclosure, the Recipient, in the case of a breach of this Section 10, 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 10.
10.6 Existing Obligations. The obligations in this Section 10 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.
11. GENERAL
11.1 Relationship. At all times, the parties are independent actors, and are not the agents or representatives of the other. This Agreement is not intended to create a joint venture, partnership, or franchise relationship, or give rise to any third party beneficiary. Nothing in this Agreement may be construed to make DocuSign a party to any transaction facilitated through DocuSign Rooms.11.2 Assignability. Subscriber may not assign its rights or obligations under this Agreement without DocuSign’s prior written consent. If consent is given, this Agreement will bind Subscriber’s successors and assigns. Notwithstanding the foregoing, either party may assign this Agreement to a purchaser of its business entity or substantially all of its assets without the other party’s consent, as long as the purchaser is not insolvent or otherwise unable to pay its debts as they become due. Other than the foregoing, any attempt by Subscriber to transfer its rights or obligations under this Agreement will be void.
11.3 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective only if it is in writing and sent using: (a) DocuSign Signature; (b) by certified or registered mail; or (c) insured courier, to the appropriate party at the address set forth on the Order Form, with a copy, in the case of DocuSign, to 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.
11.4 Force Majeure. Except for any payment obligations, neither party will be liable for failure to perform any obligation under this Agreement to the extent such failure is caused by a force majeure event (including acts of God, natural disasters, war, civil disturbance, action by governmental entity, strike and other causes beyond the party’s reasonable control). The party affected by the force majeure event will provide notice to the other party within a commercially reasonable time and will use commercially reasonable efforts to resume performance as soon as practicable. Obligations not performed due to a force majeure event will be performed as soon as reasonably possible when the force majeure event concludes.
11.5 Mandatory Arbitration. 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. Unless otherwise agreed to by the parties, the arbitration will be held in the home jurisdiction of the party against whom arbitration is initiated. 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.
11.6 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. The parties submit to the non-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.
11.7 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.
11.8 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the grant of any license to Subscriber under this Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate.
11.9 Entire Agreement. This Agreement is the final and complete expression of the agreement between these parties regarding DocuSign Rooms. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters. This Agreement may be changed only by a written agreement signed by an authorized agent of both parties.