Appendix: “electronic record and signature disclosure” capabilities

Highlights

  • The Signature service includes an Electronic Record and Signature Disclosure (“ERSD”) that DocuSign customers may use to obtain consumer consent for receiving notices and disclosures electronically.
  • The ERSD contains a range of configuration options and is enabled and displayed by default for customers.
  • Customers are responsible for determining the consumer consent and disclosure requirements under the laws applicable to their use cases and industries.

Below is information on the Signature service’s ERSD and the key legal considerations DocuSign used to develop this capability. However, customers are responsible for determining their own requirements for notices and consent and which ERSD capabilities within the Signature service are useful.

Legal considerations used to define the ERSD

The ESIGN Act provides specific notification requirements for electronic transactions involving consumers. Under the ESIGN Act, there are several conditions that must be satisfied, which DocuSign used to define the Signature service ERSD feature.

This feature and the associated configuration options are provided as a resource for DocuSign customers, enabling them to address the electronic notification requirements under the ESIGN Act applicable to them and to consumers participating in their transaction. Several components were used to design the Signature service ERSD capabilities: the perspectives of consumers and DocuSign customers, as well as typical ERSD needs.

The Customer’s Perspective

Under the ESIGN Act, DocuSign customers must:

  • Obtain consent from a participating consumer to receive information electronically
  • Provide certain disclosures to consumers regarding access and availability to electronic information, as well as the consumer’s right to receive information on paper

The Consumer’s Perspective

Receiving information electronically will satisfy the notification requirement, so long as the consumer affirmatively consents to receive the information electronically and receives:

  • Clear and conspicuous notice of his or her option to receive the information on paper
  • Information on the hardware and software needed to access the information electronically

Typical ERSD Needs

The default ERSD includes proposed language intended to address typical needs in an ERSD, including:

  • Terms and conditions for providing notices and disclosures electronically
  • Range of notices, disclosures, authorizations, acknowledgements, and other documents to be provided electronically
  • How a consumer may request paper copies and withdraw consent to receive information electronically
  • Consequences that may be associated with reverting back to paper documents, such as delays
  • Hardware and software necessary to receive electronic notices
  • Procedures that consumers must follow for the above requests

ERSD function and configuration capabilities

By default, the Signature service ERSD is configured to function as follows:

  • The ERSD incorporates the customer’s account name automatically.
  • All new recipient signers are presented with the ERSD as a first action when they arrive at the Signature service.
  • Recipients must expressly agree to the ERSD before they are able to take any subsequent actions on an envelope sent via the Signature service.

Customer administrators may make the following changes to the ERSD and default configurations:

  • Turn off the ERSD entirely
  • Configure the conditions under which the ERSD will be presented (the default is once to each signer, but it can be set it to appear every time a signer comes to the Signature service (which some customers may find useful for meeting compliance requirements)
  • Produce additional versions of the ERSD in different languages
  • Create and upload their own unique ERSD

An additional feature in the Signature service enables customers to make lightweight changes to the default ERSD, such as:

  • Update the email addresses used in the ERSD to a particular one in their organization
  • Stipulate any associated fees and their specific procedures for requesting paper documents
  • Specify their desired contact information
  • Add information specific to filing a withdrawal of consent
  • Detail the steps necessary for recipients to submit a change of email

Determining the appropriate ERSD

Customers are responsible for determining whether consumer consent and disclosure requirements are required based on their use cases and industries. Once customers have determined the ERSD that is appropriate for their organization, the functionality available in the Signature service makes it easy to provide a notice or disclosure to consumers (or other regulated parties) in advance of conducting a transaction electronically.

Please note, DocuSign is unable to do any of the following in connection with an ERSD:

  • Determine whether any particular transaction involves a consumer
  • Furnish or obtain consents or determine if a consent has been withdrawn
  • Provide information or disclosures in connection with any attempt to obtain a consent
  • Conduct a legal review of any information or disclosures or update or correct any such content currently or previously given
  • Provide copies of or access to consents, beyond the capabilities already available in the Signature service 
  • Comply with any special requirements

DocuSign recommends that customers review the text in the default ERSD and make changes if required by applicable law or where advised by a qualified legal professional.