TERMS AND CONDITIONS FOR HOSTED eMORTGAGE SERVICES v160616
In addition to the DocuSign, Inc. Terms and Conditions for Reseller Customers (the “Subscription Terms”), these Terms and Conditions for Hosted eMortgage Services (the “eMortgage Terms”) govern the use of the eMortgage Service by Customer and will be effective upon Customer’s execution of a Purchase Agreement including the eMortgage Service as one of the purchased DocuSign Products. These eMortgage Terms supplement and are an addendum to the Subscription Terms.
1. ADDITIONAL DEFINITIONS
1.1 "Administrative Users" means those Authorized Users of Customer whom Customer authorizes to obtain access and use of Command Center.
1.2 "Command Center™" means that separate user interface of eCore provided as part of the eMortgage Service which allows access to the following eCore functionality with respect to eDeposits vaulted in eCore: vault user authentication, session management and access control; Post-closing eDeposit management by Customer; view, edit, search, retrieval, and print a copy; Certified Print®, Paper Out® export ability and destruction; transfer control/ownership; vault-to-vault transfers; SMARTDoc execution, MERS Registry management and integrated eRecording.
1.3 "eCore®" means the eOriginal proprietary software consisting of the electronic vault repository partition(s) provided as part of the eMortgage Service.
1.4 “eDeposit” means those eContracts and/or other documents and information contained in an Envelope that Customer elects to deposit into eCore from the Subscription Service, and those electronic contracts accepted by Customer from other hosted customers of the eMortgage Service or from other trusted electronic vaults for deposit into eCore.
1.5 “eMortgage Service” means the provision of Command Center and other hosted services which enable Customer to cause the upload of eDeposits (and the eContracts therein) into eCore and enable Customer’s Administrative Users to access and utilize Command Center to manage and administer such eDeposits as transferable records and/or authoritative copies, as such terms are defined in statutes or laws such as the Electronic Signatures in Global and International Commerce Act (the “ESIGN Act”), the Uniform Commercial Code and the Uniform Electronic Transactions Act.
1.6 "eMortgage Specifications" means those standards and documentation with regards to the use, administration, functionality, performance and support of the eMortgage Service which are made available to Administrative Users via Command Center and which are further described at http://www.eoriginal.com/support/sla.html, as updated from time to time. The term “eAsset Management Service” as used in the eMortgage Specifications shall refer to the eMortgage Service for purposes of these eMortgage Terms.
1.7 "Technical Contacts" means those Administrative Users designated by Customer as Customer's sole contact persons for purposes of obtaining eMortgage Service support, maintenance and administration services.
2. eMORTGAGE SERVICES
2.1 Promptly after the execution of the Purchase Agreement and start date therein requesting the eMortgage Service, DocuSign shall cause its subcontractors to begin the provisioning of the eMortgage Service for Customer and Customer will be provided with training in the use and administration of the eMortgage Service as described in the Purchase Agreement. The eMortgage Service will be provided in accordance with the eMortgage Specifications during the term of the applicable Purchase Agreement (the “Term”). If the Purchase Agreement expires or is terminated, these eMortgage Terms will automatically terminate, except with respect to terms that by their nature are intended to survive termination. Customer will comply with the terms of the Purchase Agreement, including any terms related to payment of fees to Reseller for the eMortgage Services. Customer acknowledges that payment to Reseller is a material condition under these eMortgage Terms, and if Reseller notifies DocuSign that Customer is delinquent in such payment, DocuSign may consider the Customer to be in breach of these eMortgage Terms.
2.2 Customer 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 eMortgage Specifications for Customer to access and make effective use of the eMortgage Service. The eMortgage Service will be updated to accommodate new versions or releases of such third party software or hardware from time to time at no additional charge to Customer as part of eMortgage Service support.
2.3 Customer shall provide the identity of, and contact information for, each authorized Administrative User so as to allow each such Administrative User to be provided with a unique user name and preliminary password for access to Command Center. Each such Administrative User may then log into Command Center and select a unique password. Customer shall be solely responsible for loss, misuse or other negligence concerning usernames, passwords or access codes in the possession, custody or control of any Administrative User.
2.4 In the event of breach of the eMortgage Specifications or these eMortgage Terms by any Administrative User DocuSign and its subcontractors expressly reserve the right to immediately suspend access to the eMortgage Service by such Administrative User without terminating these eMortgage Terms and without liability to Customer. DocuSign and its subcontractors also reserve the right, without terminating these eMortgage Terms and without liability to Customer, to suspend access to the eMortgage Service by: (a) any Administrative User or Customer if continued use presents a threat to the security of the other users of the eMortgage Service or the System, or (b) Customer and all Administrative Users if Customer fails to timely cure non-payment defaults. Customer shall be notified of the identity of any Administrative User whose access has been suspended and the reasons for such suspension.
2.5 The eMortgage Service is provided on a hosted basis and licensed as a prepaid subscription which is limited by usage and volume. Customer may utilize the eMortgage Service based on the duration, amounts and quantities purchased as described in the Purchase Agreement. Subject to the terms of these eMortgage Terms and ending on the last day of the Term, DocuSign grants to Customer, and Customer accepts, a non-transferable and non-exclusive license to:
(i) allow Administrative Users to access and use Command Center using authorized user names and passwords solely in connection with (a) the administration of eDeposits on behalf of Customer and (b) as to Technical Contacts, the provision of eMortgage Service support to other Administrative Users; and
(ii) use, disclose, display, copy and reproduce the eMortgage Specifications solely in connection with the rights granted in Section 2.5(i) above.
Customer’s Technical Contacts shall provide eMortgage Service support services directly to Administrative Users other than Customer's Technical Contacts.
2.6 Customer may elect to receive additional services, or Premium Support or Other Available Support (each as described in the Specifications), in connection with the eMortgage Service, which shall be provided subject to these eMortgage Terms and those of a separately executed services agreement.
2.7 DocuSign may utilize independent contractors to perform any part of the eMortgage Service or to perform any other services, and DocuSign shall remain solely responsible for the performance of all of the eMortgage Service and other services that are subcontracted. All communications regarding the eMortgage Service shall be directed to DocuSign or its subcontractors, as determined by DocuSign. The eMortgage Service is made available by DocuSign through its alliance partner, eOriginal, Inc. Notwithstanding the foregoing, if eOriginal contracts directly with Customer to perform any services, including services related to the eMortgage Service, the forgoing will not apply and Customer will be subject solely to the terms, conditions and remedies for such services as agreed between and Customer and eOriginal. Customer irrevocably waives all liability of DocuSign arising under such separate agreement with eOriginal.
3. CONFIDENTIALITY.
3.1 Customer acknowledges and agrees that all information provided by DocuSign or its subcontractors in the performance of the eMortgage Service, including and not limited to all software and the eMortgage Specifications, shall be protected by Customer under the Subscription Terms as Confidential Information of DocuSign and/or its subcontractors, and, upon any termination of these eMortgage Terms, shall be destroyed. Customer authorizes DocuSign to provide Customer’s Confidential Information to its subcontractors on a need to know basis. DocuSign shall direct its subcontractors to protect Customer Confidential Information in accordance with the Subscription Terms.
4. ADDITIONAL CUSTOMER RESPONSIBILITIES
4.1 The Additional Customer Responsibilities identified in the Subscription Terms shall also apply to Customer's use of the eMortgage Service.
4.2 Except as expressly permitted in these eMortgage Terms, Customer shall not, and shall not permit any Administrative User to: (i) attempt, knowingly permit or encourage other person 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 eMortgage Service software; (ii) alter, modify, adapt or create derivative works of, or market, sell, distribute or transfer in any way, such software or the eMortgage Specifications, or any portion thereof, in any way; (iii) with the exception of the eMortgage Service application program interfaces, if provided to Customer, use external programs to alter, edit or append records to the data files or other information maintained within the eMortgage Service; or (iv) sublicense, rent or otherwise allow use of the eMortgage Service, or any portion thereof, by any corporate affiliate or any third party, or otherwise use such software to process the data of third parties or to support Customer’s activities in any service bureau capacity.
5. INTELLECTUAL PROPERTY
5.1 Except to the extent of the license granted hereunder, Customer and Administrative Users shall have no right, title or interest in the eMortgage Service and all components thereof, including without limitation, Command Center and eCore, and the patents and other intellectual property rights related thereto, and any upgrades, modifications, adaptations, derivative works and enhancements to such materials, and all such rights not expressly granted herein are reserved by the owner of such materials. Notwithstanding the above, all ownership interest in Customer's eDeposits, Confidential Information and Personal Data shall at all times remain with Customer.
5.2 DocuSign and its subcontractors may identify Customer by name and its associated logo in an online list of clients and in pre-approved press releases and other marketing materials. Additionally, the eMortgage Service shall bear certain marks of DocuSign or its applicable vendors (the "Marks"). Customer acknowledges that the Marks and all other trademarks and logos displayed on the eMortgage Service are trademarks of DocuSign or its vendors, as applicable, and that these eMortgage Terms grant to Customer no proprietary rights in, or any right to modify or alter, any such Marks, trademarks or logos, or any copyright designations on or in the eMortgage Service or the Specifications.
6. STORAGE
6.1 Command Center includes functionality to allow Customer to apply its document retention policies to all eDeposits in eCore. DocuSign, through its subcontractors, will cause all such eDeposits to be stored in accordance with such applied document retention policies until the Term expires. Customer may, at its option and wholly at Customer’s risk, utilize Command Center to export, delete or purge from eCore any eDeposit at any time established by Customer prior to the end of the Term.
6.2 If Customer fails to export all of its eDeposits from the eMortgage Service prior to the end of the Term, Customer may request transition services from DocuSign’s subcontractor for a period not to exceed 90 days which will include reasonable efforts to assist in the transfer of Customer’s eDeposits from the eMortgage Service to another provider or exporting such eDeposits to external paper or electronic media (the "Winding Down Period"). The transition services shall be detailed in a separate services agreement between Customer and such subcontractor, and shall be provided at then-current professional service rates. Such subcontractor may, at its discretion, require advance payment for such transition services, as well as payment of all outstanding fees owed in connection with the eMortgage Service. Unless otherwise agreed in writing in such transition services agreement, if eDeposits remain in the eMortgage Service for more than 90 days following the end of the Term (or the end of any applicable Winding Down Period, if later), the eDeposits may be destroyed upon notice to Customer, which notice shall be provided by DocuSign’s subcontractor.
6.3 Transaction Data collected or created in the eMortgage Service may be retained by DocuSign or its subcontractors permanently; provided however that, to the extent such Transaction Data contains Confidential Information of Customer, such Confidential Information will remain subject to the confidentiality obligations of Section 3 above.
7. WARRANTIES, DISCLAIMERS AND INDEMNIFICATION
7.1 Operation and Services. The eMortgage Service will be provided and maintained in accordance with the eMortgage Specifications and these eMortgage Terms. Additionally, all services provided under these eMortgage Terms will be performed in a professional manner and to generally accepted industry standards. The eMortgage Service is warranted to include functionality allowing the Customer to materially comply with the provisions of the ESIGN Act regarding the creation and management of electronic mortgage notes as transferable records including the ability to manage and securely maintain a single authoritative copy of each such eDeposit that is unique and readily identifiable. The foregoing warranties shall not apply: (i) if the eMortgage Service is used by Customer or any Administrative User other than in accordance with the eMortgage Specifications or these eMortgage Terms; (ii) to the extent the warranty breach is caused by, or is contributed to by, Customer or any Administrative User; (iii) if the warranty breach is caused by software other than the eMortgage Service software or by malfunction of hardware other than that utilized by DocuSign or its subcontractors to provide the eMortgage Service; (iv) to the extent the warranty breach is covered by force majeure; or (v) if the warranty breach is caused by communications or power failures not within the exclusive control of DocuSign or its subcontractors. Scheduled maintenance of any portion of the eMortgage Service provided in accordance with the eMortgage Specifications shall not be deemed a breach of these warranties.
7.2 Disclaimer and Remedy. Except as set forth in these eMortgage Terms, the eMortgage Service is provided “as is” without further warranty of any kind, and all express and implied warranties are hereby expressly disclaimed. The operation of the eMortgage Service is not warranted to be uninterrupted or error free.
7.3 Customer Warranties. Customer warrants and covenants that it shall, and it shall require all Administrative Users to, use the eMortgage Service in compliance with the eMortgage Specifications, these eMortgage Terms, and all applicable federal and state laws, rules and regulations, including all applicable export laws. The Customer Warranties identified in the Subscription Terms shall also apply with respect to Customer's use of the eMortgage Service.
7.4 Customer Indemnification. Customer shall indemnify, defend and hold DocuSign and its subcontractors harmless from and against all damages, losses and expenses that arise from any third party claim that Customer or any Administrative User failed to comply with the terms of these eMortgage Terms or otherwise failed to use the eMortgage Service in accordance with the eMortgage Specifications and/or these eMortgage Terms. Customer’s indemnification obligations identified in the Subscription Terms shall also apply with respect to Customer’s use of the eMortgage Service.
8. LIMITATIONS OF LIABILITY
8.1 Customer acknowledges and agrees that the limitations of liability identified in the Subscription Terms shall apply with respect to the eMortgage Terms and Customer’s use of the eMortgage Service.