Terms And Conditions For Use Of DocuSign Service Plans

DOCUSIGN, INC.
DOCUSIGN SIGNATURE TERMS AND CONDITIONS
v160505_web

These Terms and Conditions (“Agreement”) govern access to and use of DocuSign Signature, including by an individual or any entity (and its employees, agents, and contractors) on whose behalf you, the Subscriber (as further defined in Section 1, below), accept these terms. If you access DocuSign Signature, including by purchasing a subscription or completing an order form, you accept this Agreement.  Additional terms may apply to use of DocuSign Signature depending on the point of access or nature of the subscription.  This Agreement, WHICH INCLUDES A MANDATORY ARBITRATION REQUIREMENT IN SECTION 13.7 BELOW, constitutes a binding legal agreement between you and DocuSign, Inc. (“DocuSign,” “we,” “us,” and “our”). Please read them carefully and print a copy for reference.

IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MUST NOT ACCEPT THE AGREEMENT AND YOU ARE NOT PERMITTED TO USE DOCUSIGN SIGNATURE.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR ENTITY.  IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU ARE NOT PERMITTED TO USE DOCUSIGN SIGNATURE.

If you are a direct competitor to DocuSign, you may not use DocuSign Signature without DocuSign’s explicit, advance, written consent.

You agree to receive electronically all communications, agreements, and notices that we provide in connection with any DocuSign product or service (“Communications”), including by e-mail, text, in-app notifications, or by posting them on the DocuSign web site or through any DocuSign product or service. You agree that all Communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

We may modify this Agreement or any additional terms, which are relevant to a particular product or service, to reflect changes in the law or to DocuSign Signature.  We will post the revised terms on the Site (as defined in Section 1, below).  PLEASE REVIEW THE SITE ON A REGULAR BASIS TO OBTAIN TIMELY NOTICE OF ANY REVISIONS.  IF YOU CONTINUE TO USE DOCUSIGN SIGNATURE AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED AGREEMENT.  You agree that we shall not be liable to you or to any third party for any modification of the terms.

1.              DEFINITIONS

“Account” means a unique account established by Subscriber to gain access to and use DocuSign Signature and, where applicable, to enable its Authorized Users to access and use DocuSign Signature.

“Authorized User” means any single employee or agent of Subscriber, identified by a unique email address and user name, who is registered under the Account, provided that no two persons may register or use DocuSign Signature as the same Authorized User. 

“DocuSign Signature” means DocuSign’s on-demand electronic signature service, which provides online display, certified delivery, acknowledgement, electronic signature, and storage services for eContracts via the Internet.

“eContract” refers to a contract, notice, disclosure, or other record or document deposited into the System by Subscriber for processing using DocuSign Signature.

“Envelope” means an electronic record containing one or more eContracts consisting of a single page or a group of pages of data uploaded to the System.

 “Subscriber” means the individual or entity that purchases a Subscription, creates an Account, accepts this Agreement (whether on behalf of itself or a legal entity) and ensures that Authorized Users comply with this Agreement.  Subscribers may be referred to in this Agreement as “you” and “your” may be used to describe rights or duties associated with Subscriber.

“Subscription Plan” means the various plans that can be purchased on the Site or from an authorized DocuSign reseller or partner.  Purchase of a Subscription Plan grants Subscriber the right to access and use DocuSign Signature for a specified period, subject to this Agreement and in exchange for Subscriber’s payment of scheduled fee.   Each Subscription Plan has restrictions and requirements that outline the DocuSign Signature features that Subscriber will be able to access.

“Site” means DocuSign.com, DocuSign.net or a DocuSign affiliate web page offering a Subscription Plan.

“Specifications” means the DocuSign Signature specifications and software requirements set forth in the DocuSign Signature specifications available at https://www.docusign.com/company/specifications.

“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 Signature.

“Term of Agreement” means the period of effectiveness of this Agreement, as specified in Section 8 below.

“Term of Subscription” means the period of effectiveness of the Subscription Plan, as specified in Section 8 below.

“Transaction Data” means the metadata associated with an Envelope (such as transaction history, image hash value, method and time of Envelope deletion, sender and recipient names, email addresses and signature IDs) and maintained by DocuSign in order to establish the digital audit trail required by DocuSign Signature.

2.              FREE TRIAL & SPECIAL OFFERS

2.1     If you register for a free trial, promotional offer or other type of limited offer (“Free Trial”), DocuSign will make available to you a free or discounted version of DocuSign Signature until (a) the end of the free trial period; (b) the start date on which you purchase DocuSign Signature; or (c) termination of your use of DocuSign Signature, either by you or DocuSign in its sole discretion. You may be presented with additional terms and conditions when registering for a Free Trial, and any such additional terms and conditions are hereby incorporated into this Agreement and are legally binding.

2.2     The version of DocuSign Signature that is available for a Free Trial may not include or allow access to all features or functions.

2.3     Notwithstanding the warranties described in Section 9, during a Free Trial DocuSign Signature is provided “as is” without any warranty that may be set forth in this Agreement.

3.              DOCUSIGN SIGNATURE

3.1     During the Term of Subscription and subject to this Agreement, Subscriber will have the right to register for an Account and, where applicable, register Authorized Users, who may access and use DocuSign Signature.  DocuSign will provide DocuSign Signature in accordance with the Specifications.  You must be 18 years of age or older to register for an Account and use DocuSign Signature.  The right to use DocuSign Signature is limited to the Subscriber and its Authorized Users, and Subscriber may not resell or otherwise provide or assist with the provision of DocuSign Signature for the benefit of another party or as part of a service Subscriber offers to any third party or as a sublicensed arrangement. 

3.2     DocuSign will provide customer support to Subscriber in accordance with the package that is specified in the Subscription Plan selected by Subscriber, and that is further detailed on the Site.

3.3     DocuSign may utilize a subcontractor or other third party to perform its duties under this Agreement so long as: (a) DocuSign shall not be relieved of any responsibilities or obligations under this Agreement that are performed by the subcontractor or third party; and (b) DocuSign shall remain Subscriber’s sole point of contact and sole contracting party.

4.              SUBSCRIBER RESPONSIBILITIES

4.1     DocuSign’s provision of DocuSign Signature is conditioned on Subscriber’s acknowledgement of and agreement to the following: 

(i)  Subscriber will ensure that any Authorized User associated with its Account will comply with the relevant terms of this Agreement, including, but without limitation, Sections 4, 5, 6, and 9.2;

(ii) DocuSign Signature is accessed and delivered via the internet.  Subscriber is responsible for obtaining the necessary equipment and internet connection in order to access and use DocuSign Signature.  In order to fully utilize DocuSign Signature, Subscriber will need to maintain certain minimum hardware and software requirements.  These requirements are set forth in the Specifications;

(iii)  DocuSign Signature facilitates the execution of eContracts between the parties to those eContracts.  Nothing in this Agreement may be construed to make DocuSign a party to any eContract processed through DocuSign Signature, and DocuSign makes no representation or warranty regarding the transactions sought to be effected by any eContract;

(iv)  Between DocuSign and Subscriber, Subscriber has exclusive control over and responsibility for the content, quality, and format of any eContract.  All eContracts stored by DocuSign on the System are maintained in an encrypted form, and DocuSign has no control of or access to their contents;

(v)  If Subscriber elects to use one or more of the optional features designed to verify the identity of the intended recipient of an eContract that DocuSign makes available to its subscribers (“Authentication Measures”), DocuSign will apply only those Authentication Measures selected by the Subscriber, but makes no representations or warranties about the appropriateness of any Authentication Measure.  Further, DocuSign assumes no liability for: (a) the inability or failure by the intended recipient or other party to satisfy the Authentication Measure; or (b) the circumvention by any person (other than DocuSign) of any Authentication Measure;

(vi)  Certain types of agreements and documents may be excepted from electronic signature laws (e.g. wills and agreements pertaining to family law), or may be subject to specific regulations promulgated by various government agencies regarding electronic signatures and electronic records.  DocuSign is not responsible for determining whether any particular eContract: (a) is subject to an exception to applicable electronic signature laws; (b) is subject to any particular agency rules or regulations; or (c) whether it can be legally formed by electronic signatures;

(vii)  DocuSign is not responsible for determining how long any contracts, documents, and other records are required to be retained or stored under any applicable laws, regulations, or legal or administrative agency processes.  Further, DocuSign is not responsible for or liable to produce any of Subscriber’s eContracts or other documents to any third parties;

(viii)  Between Subscriber and DocuSign, 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 submitted by any Authorized User or otherwise processed through its Account, DocuSign Signature, or under any Order Form; 

(ix)  Certain consumer protection or similar laws or regulations may impose special requirements with respect to electronic transactions involving one or more “consumers,” such as (among others) requirements that the consumer consent to the method of contracting and/or that the consumer be provided with a copy, or access to a copy, of a paper or other non-electronic, written record of the transaction.  DocuSign does not and is not responsible to: (a) determine whether any particular transaction involves a “consumer;” (b) furnish or obtain any such consents or determine if any such consents have been withdrawn; (c) provide any information or disclosures in connection with any attempt to obtain any such consents; (d) provide legal review of, or update or correct any information or disclosures currently or previously given; (e) provide any such copies or access, except as expressly provided in the Specifications for all transactions, consumer or otherwise; or (f) otherwise to comply with any such special requirements; and 

(x)  Subscriber shall determine whether a “consumer” is involved in any eContract presented by its Authorized Users for processing, and, if so, comply with all requirements imposed by law on such eContracts or their formation.

4.2     Subscriber may use DocuSign Signature only for lawful purposes and solely in accordance with this Agreement and subject to DocuSign’s other terms of use, Privacy Policy, rules or policies that may be applicable to DocuSign Signature.  Subscriber may not store, transmit, upload or share through DocuSign Signature any materials 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 (other than contractual liability of the parties under eContracts processed through DocuSign Signature);

(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) involves sending unsolicited mass mailings outside its organization.  The term “unsolicited mass mailings” includes all statutory or common definitions or understanding of those terms in the applicable jurisdiction, such as those set forth for “Commercial Electronic Mail Messages” under the U.S. CAN-SPAM Act, as an example only;

(iv) is intended to or is likely to damage, disable, overburden, or impair the System or DocuSign Signature or otherwise interfere with the use or enjoyment of DocuSign Signature by others, including, but not limited to materials that contain 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;

(v) involves monitoring of performance, functionality or availability of DocuSign Signature or engaging in any other benchmarking or competitive analysis purposes;

(vi) violates this Agreement or any other terms of use, rules or policies applicable to the DocuSign Signature; or 

(vii) in any way that constitutes or encourages conduct that could constitute a criminal offense.

4.3     DocuSign does not monitor the content processed through DocuSign Signature, but, in accordance with the Digital Millennium Copyright Act (DMCA), we respond to notices of copyright infringement and may suspend or terminate use of DocuSign Signature in appropriate circumstances.  DocuSign will use commercially reasonable efforts to notify Subscriber 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 Signature, 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.

5.              OWNERSHIP

5.1     DocuSign owns various intellectual property and technology rights associated with DocuSign Signature, its document management, digital signature and notary system.  Subscriber’s rights with respect to the foregoing are limited to the rights to use DocuSign Signature that are granted under this Agreement for the purposes contemplated by this Agreement, and no other.  DocuSign does not transfer to Subscriber, or any Authorized User or 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 Signature or other DocuSign technologies.

5.2     DocuSign hereby grants to users and licensees of its products and services a limited, revocable, nonexclusive and nontransferable right to use DocuSign’s regular trade names, trademarks, titles and logos (“Licensed Marks”) solely for purposes of identifying DocuSign’s products and services, as long as the Licensed Marks are used strictly in compliance with DocuSign’s trademark license terms and conditions, available at: https://www.docusign.com/IP.

5.3     Data and information owned by Subscriber that is processed using DocuSign Signature is and will remain, as between Subscriber and DocuSign, owned by Subscriber.

5.4     Subscriber hereby assigns to DocuSign all right, title, and interest in and to any recommendations, suggestions, enhancement requests or other feedback provided by Subscriber to DocuSign concerning DocuSign products and/or the Services (“Feedback”), and DocuSign is free to make unrestricted use of the Feedback without any necessity of payment to Subscriber. Subscriber also agrees that it will not publish, submit, or display feedback submitted by Subscriber or its Authorized Users to or on any other web site or in any other publicly accessible forum without DocuSign's prior written consent.

6.              eCONTRACT STORAGE AND DELETION

DocuSign will send and store eContracts per the terms of the Subscription Plan, provided that the number of eContracts sent or stored are not, in DocuSign’s sole discretion, abusive or unduly burdensome (or both). Subscriber may retrieve and store copies of eContracts for storage outside of the System at any time during the Term of the Subscription when Subscriber is in good financial standing under this Agreement, and may delete or purge eContracts from the System at its own discretion.  DocuSign may, at its sole discretion, delete an uncompleted eContract from the System immediately and without notice upon earlier of: (a) expiration of the Envelope (where Subscriber has established an expiration for such Envelope, not to exceed 365 days); or (b) expiration of the Term of Subscription.  DocuSign may delete an Account and materials associated with an Account, including eContracts, upon the expiration of the Term of Subscription or termination as described in Section 8.  DocuSign assumes no liability or responsibility for a party’s failure or inability to electronically sign any eContract within such a period of time.  DocuSign may retain Transaction Data for as long as it has a business purpose to do so.

7.              FEES AND PAYMENT TERMS

7.1     The prices, features, and options of DocuSign Signature depend on the Subscription Plan purchased by Subscriber as well as any changes instigated by Subscriber. For example: (a) if you add Authorized Users, DocuSign will charge the applicable subscription amount for each additional Authorized User; or (b) if you send more Envelopes than are included in the Subscription Plan, DocuSign may charge for additional envelopes.  You may also purchase optional services on a periodic or per-use basis.  DocuSign may change the prices for or alter the features and options in a particular Subscription Plan without notice.

7.2     You will timely pay DocuSign all fees associated with your Subscription Plan, Account or use of DocuSign Signature, including, but without limitation, by Authorized Users.  Your payments are non-refundable.  Charges for pre-paid Subscription Plans will be billed to Subscriber in advance.  Charges for per use purchases and standard Subscription Plan charges will be billed in arrears.

7.3     When you register for an Account, you must provide accurate and complete information for a valid credit card that you are authorized to use.  You must promptly notify us of any change in your invoicing address and must update your Account with any changes related to the credit card used for payment.  By completing your registration for the Subscription Plan, you authorize DocuSign or its agent to charge your credit card on a recurring (e.g. monthly or yearly) basis (“Authorization”) for (a) the applicable Subscription Plan charges; (b) any and all applicable taxes; and (c) any other charges incurred in connection with your use of DocuSign Signature.  The Authorization continues through your Term of Subscription and any Renewal Term (as defined in Section 8.2, below) until you cancel as set forth in Section 8 of this Agreement.

7.4   If DocuSign does not receive payment from your credit card provider, you agree to pay all amounts due upon demand.  Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid.  You will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by DocuSign to collect any amount that is not paid when due.  DocuSign may accept payment in any amount 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.

7.5     DocuSign will provide an invoice in a format we choose, which may change from time to time.  DocuSign reserves the right to correct any errors or mistakes that it identifies even if it has already issued an invoice or received payment.  You agree to notify us about any billing problems or discrepancies within 30 days after they first appear on your invoice.  If you do not bring such problems/discrepancies to our attention within 30 days, you agree to waive your right to dispute such problems or discrepancies.

7.6   Billing cycle end dates may change from time to time.  When a billing cycle covers less than or more than a full month, we may make reasonable adjustments and/or prorations.  You agree that we may (at our option) accumulate charges incurred during a billing cycle and submit them as one or more aggregate charges during or at the end of a cycle, and that we may delay obtaining authorization or payment from your credit card issuer until submission of the accumulated charge(s). 

7.7     You may receive or be eligible for certain pricing structures, discounts, features, promotions, and other benefits (collectively, "Benefits") through a business or government Subscriber's agreement with us (a "Business Agreement").  Any and all such Benefits are provided to you solely as a result of the corresponding Business Agreement and such Benefits may be modified or terminated without notice.  If you use DocuSign Signature where a business or government entity pays your charges or is otherwise liable for the charges, you authorize us to share your account information with that entity and/or its authorized agents.  If you are enrolled in a Subscription Plan or receive certain Benefits tied to a Business Agreement with us, but you are liable for your own charges, then you authorize us to share enough account information with that entity and its authorized agents to verify your continuing eligibility for those Benefits and the Subscription Plan.

7.8     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 Signature. 

8.              TERM AND TERMINATION

8.1   Term of Agreement. The term of this Agreement begins on the date you accept it and continues until your Subscription Plan expires or your use of DocuSign Signature ceases, whichever is later.

8.2   Term of Subscription & Automatic Renewals. Our Subscription Plans automatically renew unless they specify otherwise.  If you purchase a Subscription Plan it will automatically renew, unless: (a) you terminate your Account; (b) you set your Account to not auto renew; or (c) DocuSign declines to renew your Subscription Plan.  Each renewal period is a “Renewal Term”.  You authorize us to collect the then-applicable fees and any taxes for a Renewal Term. Subscription Plan fees and features may change over time and we may recommend a new Subscription Plan that is comparable to your old plan.

8.3   Termination by Subscriber.  You may terminate your Account at any time upon 10 days advance written notice to DocuSign.  If you wish to terminate, please provide notice by using DocuSign’s contact support page.  Section 7.2 notwithstanding, if you terminate your annual Subscription Plan within the first 30 days of the Term of Subscription, you may submit a written request to DocuSign for a refund of the fees paid by you to DocuSign. DocuSign has no obligation to consider refund requests related to a termination of an annual Subscription Plan that does not occur in the first 30 days of the relevant annual Subscription Plan.

8.4   Default; Termination by DocuSign.  You will be in default of this Agreement if: (a) you fail to timely pay any amount owed to us or an affiliate of ours; (b) you or an Authorized User associated with your Account breach any provision of this Agreement or violate any policy applicable to DocuSign Signature; (c) you are subject to any proceeding under the Bankruptcy Code or similar laws; or (d) if, in our sole discretion, we believe that continued use of DocuSign Signature by you creates legal risk for DocuSign or presents a threat to the security of DocuSign Signature or Subscribers.  If you are in default, we may, without notice to you: (a) suspend your Account and use of DocuSign Signature; (b) withhold refunds and terminate your Account; (c) charge reactivation fees in order to reactivate your Account; or (d) pursue any other remedy available to us. 

8.5   Effect of Termination.  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, including those for the billing cycle in which termination occurs; (b) any and all liabilities of Subscriber to DocuSign that have accrued before the effective date of the termination will survive; (c) licenses and use rights granted to Subscriber with respect to DocuSign Signature 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 9.3, and 10 through 13 will survive.

9.              WARRANTIES AND DISCLAIMERS

9.1   DocuSign Warranties.  DocuSign warrants that: (a) DocuSign Signature as delivered to Subscriber and used in accordance with the Specifications will not infringe on any United States patent, copyright or trade secret; (b) DocuSign Signature will perform materially in accordance with the Specifications in their then-current form at the time of the provision of such DocuSign Signature; (c) the proper use of DocuSign Signature by Subscriber in accordance with the Specifications and applicable law in the formation of an eContract not involving any consumer will be sufficient under the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. §§ 7001 et seq. (the “ESIGN Act”) to support the validity of such formation, to the extent provided in the ESIGN Act; (d) the proper use of DocuSign Signature by Subscriber in accordance with the Specifications and applicable law in the formation of an eContract involving a consumer will be sufficient under the ESIGN Act to support the validity of such formation, to the extent provided in the ESIGN Act, so long as and provided that Subscriber complies with all special requirements for consumer eContracts, including and subject to those referenced in Section 4.2(vi) and (vii) above.

9.2   Subscriber Warranties.  You hereby represent and warrant to DocuSign that: (a) you have all requisite rights and authority to use DocuSign Signature under this Agreement and to grant all applicable rights herein; (b) the performance of your obligations under this Agreement will not violate, conflict with, or result in a default under any other agreement, including confidentiality agreements between you and third parties; (c) you are responsible for all use of DocuSign Signature associated with your Account; (d) you are solely responsible for maintaining the confidentiality of your Account names and password(s); (e) you agree to immediately notify us of any unauthorized use of your Account of which you become aware; (f) you agree that DocuSign will not be liable for any losses incurred as a result of a third party's use of your Account, regardless of whether such use is with or without your knowledge and consent; (g) you will use DocuSign Signature for lawful purposes only and subject to this Agreement; (h) you will not store, transmit, upload, or share content through DocuSign Signature that 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; (i) you will not use DocuSign Signature in any manner that could damage, disable, overburden or impair the System, or interfere with another's use of DocuSign Signature by others; (j) any information you submit to DocuSign is true, accurate, and correct; and (k) you will not attempt to gain unauthorized access to the System or DocuSign Signature, other accounts, computer systems, or networks under the control or responsibility of DocuSign through hacking, cracking, password mining, or any other unauthorized means.

9.3   Disclaimer.  EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN THIS SECTION 9, DOCUSIGN SIGNATURE AND THE SITE ARE PROVIDED “AS IS,” AND DOCUSIGN: (a) MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER; (b) EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE; AND (c) DOES NOT WARRANT THAT DOCUSIGN SIGNATURE OR SITE ARE OR WILL BE ERROR-FREE, WILL MEET SUBSCRIBER’S REQUIREMENTS, OR BE TIMELY OR SECURE.  SUBSCRIBER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM THE USE OF DOCUSIGN SIGNATURE OR SITE.  SUBSCRIBER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF DOCUSIGN TO ANY THIRD PARTY.  USE OF DOCUSIGN SIGNATURE AND SITE ARE AT YOUR SOLE RISK.

Because some states and jurisdictions do not allow limitations on implied warranties, the above limitation may not apply to you.  In that event, such warranties are limited to the maximum extent permitted by, and for the  minimum warranty period allowed by the mandatory applicable law.

10.            SUBSCRIBER INDEMNIFICATION OBLIGATIONS

Subscriber will defend, indemnify, and hold us, our affiliates, officers, directors, employees, suppliers, consultants, and agents harmless from any and all third party claims, liability, damages, and costs (including, but not limited to, attorneys' fees) arising from or related to: (a) use of DocuSign Signature by Subscriber or its Authorized Users; (b) violation of this Agreement by Subscriber or its Authorized Users; (c) infringement of any intellectual property or other right of any person or entity by Subscriber or its Authorized Users; or (d) the nature and content of all materials, works, data, statements, and other visual, graphical, written, or audible communications of any nature submitted by Subscriber or its Authorized Users.

11.            LIMITATIONS OF LIABILITY

11.1          Disclaimer of Consequential Damages.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, DOCUSIGN WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUBSCRIBER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

11.2           Cap on Damages.  UNDER NO CIRCUMSTANCES WILL DOCUSIGN'S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR SUBSCRIBER’S USE OF DOCUSIGN SIGNATURE (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO DOCUSIGN UNDER THIS AGREEMENT DURING THE 3 MONTHS PRECEDING THE DATE OF THE ACTION OR CLAIM.

11.3           Independent Allocations of Risk.  Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of this Agreement between the parties.  This allocation is reflected in the pricing offered by DocuSign to Subscriber and is an essential element of the basis of the bargain between the parties.  Each of these provisions is severable and independent of all other provisions of this Agreement, and each of these provisions will apply even if the warranties in this Agreement have failed of their essential purpose.

11.4          Jurisdictional Limitations. 

A. Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation may not apply to you.  In that event, such exclusions and limitations shall apply to the maximum extent permitted by applicable mandatory law (and our liability shall be limited or excluded as permitted under mandatory applicable law).

B. DocuSign’s potential liability to Subscribers domiciled in Germany is limited as described in Section 13.13 below.

12.            CONFIDENTIALITY

12.1     “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 eContracts), 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 includes the terms and conditions of this Agreement, as well as pricing plans or discounts, and the features and functionality of DocuSign Signature.  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.

12.2     Restricted Use and Nondisclosure.  During and after the Term of Subscription, 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.

12.3     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.

12.4     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.

12.5     Remedies.  Recipient acknowledges that any actual or threatened breach of this Section 12 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 12, 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 12.

12.6     Existing Obligations.  The obligations in this Section 12 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.

13.     GENERAL  

13.1     Relationship.  At all times, the parties are independent contractors, and are not the agents or representatives of the other.  This Agreement is not intended to create a joint venture, partnership, or franchise relationship between the parties.  Non-parties do not benefit from and cannot enforce this Agreement.  There are no third party beneficiaries to this Agreement.  Subscriber must not represent to anyone that Subscriber is an agent of DocuSign or is otherwise authorized to bind or commit DocuSign in any way without DocuSign’s prior authorization.

13.2    Export Control Laws.  Subscriber acknowledges that DocuSign Signature and any related products, information, documentation, software, technology, technical data, and any derivatives thereof, that DocuSign makes available to its Subscribers (collectively “Excluded Data”), is subject to export control laws and regulations of the United States and other jurisdictions (collectively “Export Laws”).  Subscriber represents and warrants that Subscriber and its Authorized Users: (a) are not located in, under the control of, or a national or resident of an embargoed country; (b) are not prohibited end user under Export Laws; and (c) will not access, download, use, export or re-export, directly or indirectly, the Excluded Data to any location, entity, government or person prohibited by export laws, without first complying with all Export Laws that may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction it operates or does business.  Subscriber is solely responsible for complying with Export Laws for all Excluded Data and any of its content transmitted through DocuSign Signature.  Subscriber shall advise DocuSign in the event the Excluded Data requires DocuSign to obtain additional licenses, permits and/or approvals from any government in the jurisdiction where Subscriber intends to use DocuSign Signature.  Upon being advised of such a requirement, DocuSign may at its sole discretion: (a) terminate Subscriber's Account; (b) obtain such licenses, permits, and/or approvals as may be required; or (c) modify this Agreement such that additional licenses, permits, and/or approvals are no longer required to be obtained by DocuSign.

13.3     Third Party Content.  We may provide, or third parties may provide, links to other web sites or resources that are beyond our control.  We make no representations as to the quality, suitability, functionality, or legality of any sites to which links may be provided, and you hereby waive any claim you might have against us with respect to such sites.  DOCUSIGN IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE CONTAINED OUTSIDE THE SITE.  Your correspondence or business dealings with, or participation in promotions of, advertisers or partners found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such advertiser or partner.  You agree that we are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or partners on the Site.

13.4     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.  Any attempt by Subscriber to transfer its rights, duties, or obligations under this Agreement except as expressly provided in this Agreement is void.  DocuSign may freely assign its rights, duties, and obligations under this Agreement.

13.5     Notices.  Except as otherwise permitted by this Agreement, 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 in Subscriber's registration information for Subscriber or on the Site for DocuSign, 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 13.  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.

13.6     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.

13.7     Mandatory Arbitration. 

A.     General.  ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, DOCUSIGN SIGNATURE, OR THE SITE WILL BE RESOLVED BY BINDING ARBITRATION CONDUCTED BEFORE ONE ARBITRATOR, RATHER THAN IN COURT.  The arbitration shall be administered by the Judicial Arbitration and Mediation Services [insert link to http://www.jamsadr.com/ (”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 initiate the arbitration. The arbitration will be conducted in San Francisco County, California, and judgment on the arbitration award may be entered into any court having jurisdiction thereof.  Payment of all fees will be governed by JAMS Rules.

B.     No Class Actions.  ANY SUCH CONTROVERSY OR CLAIM SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND MAY NOT BE CONSOLIDATED WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY AND CANNOT BE BROUGHT AS A CLASS ACTION.  If a court decides that this subsection on “No Class Actions” is not enforceable or valid, then the entire Section 13.7 (Mandatory Arbitration) will be null and void.  But the remainder of this Agreement will still apply.

C.     Smaller Claims.  If your claim(s) total less than US $5,000.00, then: (a) DocuSign will reimburse filing fees up to a maximum of US $1,500.00, unless the arbitrator determines that your claims are frivolous; (b) DocuSign will not seek attorney’s fees and costs, unless the arbitrator determines that your claims are frivolous; and (c) you may choose whether your participation in the arbitration will be conducted on the basis of documents provided to the arbitrator, through a telephonic hearing or by in-person hearing.

D.     Provisional Remedies.  This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction, as necessary to protect the party’s rights or property pending the completion of arbitration.

13.8     Governing Law & Venue.  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.  For purposes of determining the governing law, the parties agree that DocuSign is the proponent of this Agreement.  Notwithstanding the parties’ agreement to mandatory arbitration, either party may seek any interim or preliminary injunctive relief from a court of competent jurisdiction in San Francisco, CA, as necessary to protect the party's rights or property pending the completion of arbitration. The parties submit to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in San Francisco, California, U.S.A.

13.9       Language & Translations.  DocuSign may provide translations of this Agreement or other terms or policies, such as the DocuSign Privacy Policy.  Translations are provided for informational purposes and if there is a conflict between a translation and the English version, the English version will control.

13.10     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.

13.11      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.

13.12      Entire Agreement.  This Agreement, which includes the language and paragraphs preceding Section 1, is the final and complete expression of the agreement between these parties regarding DocuSign Signature.  This Agreement supersedes all previous oral and written communications regarding these matters.  Except as explicitly permitted in this Agreement, no modification or amendment of this Agreement shall be effective unless it is in writing and signed by the party against whom the modification or amendment is being asserted.

13.13     Limitations on Liability For Subscribers Domiciled in Germany.

A.     DocuSign shall be fully liable for intentional and gross negligence, as well as for any damages arising from injury to life, body or health caused by DocuSign or any DocuSign Group Company.

B.     In the case of slight negligence, DocuSign shall be liable only for breach of a material obligation (“Cardinal Duty”). A Cardinal Duty in the meaning of this Section 13.13 is an obligation, the fulfillment of which is essential to the performance of this agreement and on the fulfillment of which the contracting party may therefore rely.

C.     In accordance with Section 13.13(B) above, DocuSign shall not be liable for any lack of economic results, loss of profit or indirect damages.

D.     Liability in the meaning of Sections 13.13(B) and 13.13(C) above is limited to typical, foreseeable damages.