DOCUSIGN SITES & SERVICES TERMS AND CONDITIONS
Last updated on: May 13, 2022
IMPORTANT NOTICE: THESE DOCUSIGN SITES AND SERVICES TERMS AND CONDITIONS (the “TERMS”) CONTAIN A BINDING ARBITRATION PROVISION AND WAIVER OF JURY TRIALS AND CLASS ACTIONS GOVERNING DISPUTES ARISING FROM USE OF THE DOCUSIGN SITE AND SERVICES. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE MANDATORY ARBITRATION AND WAIVER OF CLASS ACTION SECTION BELOW. PLEASE READ CAREFULLY.
These Terms govern access to and use of the Docusign (“Docusign”, “we”, “our” or “us”) websites, products, and services (collectively, the “Site”) by individuals or entities who are any of the following (collectively, “you” or “your”):
general website visitors to docusign.com and/or other URLs owned or operated by Docusign (each a “Website Visitor”);
subscribers or licensees to one or more of our products or services (“Docusign Services”) (each, a “Customer”); and
users of Docusign Services, including authorized users of Customer accounts and other Docusign Service end users (each, a “User”).
By using the Site, you accept these Terms (whether on behalf of yourself or a legal entity you represent).
If you are a Customer and have a Master Services Agreement or other similar agreement in effect with Docusign (the “Corporate Terms”), then these Terms apply to the extent your use of the Site, including any of the Docusign Services referenced in the Service Schedules below, is not already governed by such Corporate Terms. These Terms are intended to govern agreements with business or corporate Customers. These Terms shall not apply to you if you wish to obtain Docusign Services for personal use as a consumer (as defined by applicable consumer protection laws) and you shall not be entitled to avail yourself to any rights herein.
BY ACCESSING, USING, OR DOWNLOADING ANY MATERIALS FROM THE SITE, YOU AGREE TO FOLLOW AND BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT AUTHORIZED AND MUST CEASE USING THE SITE IMMEDIATELY.
1. UPDATES AND COMMUNICATIONS
1.1. We may revise these Terms, including changing, deleting, or supplementing with additional terms and conditions from time to time in our sole discretion, including to reflect changes in applicable law. We will post the revised terms on the Site with a “last updated” date. PLEASE REVIEW THIS WEBSITE ON A REGULAR BASIS TO OBTAIN TIMELY NOTICE OF ANY REVISIONS. IF YOU CONTINUE TO USE THE SITE OR THE DOCUSIGN SERVICES AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED TERMS. You agree that we shall not be liable to you or to any third party for any revision to the Terms.
1.2. You agree to receive all communications, correspondences, and notices that we provide in connection with our Site, including any Docusign Services , including, but not limited to, marketing and promotional messages related to us or the Docusign Services, correspondence regarding our delivery of the Docusign Services, and providing you information related to your purchase of or subscription to the Docusign Services (“Communications”), via electronic means, including by e-mail, text, in-product notifications, push notifications, or by posting them on or making them otherwise available through the Site. To the fullest extent permitted under applicable laws, you agree that all Communications we provide to you electronically satisfy any legal requirement that such Communications be in writing or be delivered in a particular manner and you agree to the extent you are a Customer to keep your Account contact information current. At any time, you can opt out of our email marketing and promotional messages sent to you by unsubscribing here (https://pref.docusign.com/preference-center).
2. OWNERSHIP
2.1. Intellectual Property. The Site contains materials that are proprietary and are protected by copyright, trademarks, service marks, patents, and other intellectual property laws and treaties.
2.1.1. You agree to abide by all applicable copyright and other intellectual property laws, as well as any additional proprietary rights notices or restrictions contained on the Site. You acknowledge that the Site contains valuable intellectual property of Docusign and its licensors. All present and future rights in and to any and all intellectual property or other proprietary rights of any type, including without limitation information, any improvements, design contributions, or derivative works thereto, and any knowledge or process related thereto, including rights in and to all applications and registrations relating to such intellectual property, shall, as between you and Docusign, at all times be and remain the sole and exclusive property of Docusign and its licensors. Any rights not expressly granted in these Terms or otherwise in writing between you and Docusign, are reserved by Docusign, and any unauthorised use of any intellectual property regarding the Site is strictly prohibited.
2.1.2. The trademarks, logos, taglines, and service marks displayed on the Site (collectively, the “Trademarks”) are registered and/or unregistered Trademarks of Docusign and its licensors. The Trademarks may not be used in any advertising or publicity, or otherwise to indicate Docusign's sponsorship of or affiliation with any product, service, event, or organization without Docusign's prior express written permission.
2.1.3. Copyright. Docusign respects copyright law and expects its users to do the same. If you believe that any content or material on the Site may infringe copyrights you own, please notify us in accordance with ourCopyright Policy (https://www.docusign.com/IP/infringement).
2.2. License Restrictions. Information, including software that may be available for downloading through the Site or third-party websites or applications (“Software”) is the copyrighted work of Docusign, its licensors, and/or such other respective third-party providers. Use of the Software is governed by these Terms and such license and/or other terms as may be required directly of you by the third-party providers. Unauthorized reproduction or distribution of the Software is expressly prohibited by law, and may result in civil and criminal penalties. Violators may be prosecuted.
2.3. Submissions of User Content.
2.3.1. Submissions. The Site may enable you to submit, post, upload, or otherwise make available (collectively, "Post") content such as questions, public messages, ideas, product feedback, comments, and other content (collectively, "User Content") that may or may not be viewable by other users. If you Post User Content, unless we indicate otherwise, you grant us a nonexclusive, royalty-free, and fully sublicensable right to access, view, use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, copy, and display such User Content throughout the world in any form, media, or technology now known or hereafter developed. You also permit any other user to view, copy, access, store, or reproduce such User Content for that user’s personal use. You grant us the right to use the name and other information about you that you submit in connection with such User Content. You represent and warrant that: (a) you own or otherwise control all of the rights to the User Content that you Post; (b) the User Content you Post is truthful and accurate; and (c) use of the User Content you Post does not violate these Terms or any applicable laws. For the avoidance of doubt, User Content does not include any document or other data a Customer or User uploads for processing by any Docusign Service account environment.
2.3.2. Screening & Removal. You acknowledge and agree that we may or may not, at our discretion, pre-screen User Content before its appearance on the Site, but that we have no obligation to do so. You further acknowledge and agree that we reserve the right (but do not assume any obligation) in our sole discretion to reject, move, edit, or remove any User Content that is Posted to the Site. Without limiting the foregoing, we have the right to remove any User Content that violates these Terms or is otherwise objectionable in our sole discretion. You acknowledge and agree that we do not verify, adopt, ratify, or sanction User Content, and you agree that you must evaluate and bear all risks associated with your use of User Content or your reliance on the accuracy, completeness, or usefulness of User Content.
3. RESTRICTIONS ON USE OF THE SITE
3.1. By using the Site, you specifically agree not to engage in any activity or transmit any information that, in our sole discretion:
3.1.1. Is illegal, or violates any federal, state, or local law or regulation;
3.1.2. Advocates illegal activity or discusses illegal activities with the intent to commit them;
3.1.3. Violates any third-party right, including, but not limited to, right of privacy, right of publicity, copyright, trademark, patent, trade secret, or any other intellectual property or proprietary rights;
3.1.4. Is harmful, threatening, abusive, harassing, tortious, indecent, defamatory, sexually explicit or pornographic, discriminatory, vulgar, profane, obscene, libelous, hate speech, violent or inciting violence, inflammatory, or otherwise objectionable;
3.1.5. Interferes with any other party’s use and enjoyment of the Site;
3.1.6. Attempts to impersonate another person or entity;
3.1.7. Is of a commercial nature in a way that violates these Terms, including but not limited to, using the Site for spam, surveys, contests, pyramid schemes, or other advertising materials;
3.1.8. Falsely states, misrepresents, or conceals your affiliation with another person or entity;
3.1.9. Accesses or uses a Docusign Services account of a Customer without such Customer’s permission;
3.1.10. Distributes computer viruses or other code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or electronic communications equipment;
3.1.11. Interferes with, disrupts, disables, overburdens, or destroys the functionality or use of any features of the Site, or the servers or networks connected to the Site;
3.1.12. “Hacks” or accesses without permission our proprietary or confidential records, those of another user, or those of anyone else;
3.1.13. Improperly solicits personal or sensitive information from other users including without limitation address, credit card or financial account information, or passwords;
3.1.14. Decompiles, reverse engineers, disassembles, or otherwise attempts to derive source code from the Site, except as expressly permitted in these Terms or by law, unless and then only to the extent permitted by applicable law without our consent;
3.1.15. Removes, circumvents, disables, damages, or otherwise interferes with security-related features, or features that enforce limitations on use of the Site;
3.1.16. Uses automated or manual means to violate the restrictions in any robot exclusion headers on the Site, if any, or bypasses or circumvents other measures employed to prevent or limit access, for example by engaging in practices such as “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other information;
3.1.17. Modifies, copies, scrapes or crawls, displays, distributes, publishes, licenses, sells, rents, leases, lends, transfers, or otherwise commercializes any materials or content on the Site;
3.1.18. Downloads (other than through page caching necessary for personal use, or as otherwise expressly permitted by these Terms), distributes, posts, transmits, performs, reproduces, broadcasts, duplicates, uploads, licenses, creates derivative works from, or offers for sale any content or other information contained on or obtained from or through the Site, by any means except as provided for in these Terms or with the prior written consent of Docusign; or
3.1.19. Attempts to do any of the foregoing.
If you believe content on the Site or any activity by an individual or entity violates the above restrictions, please contact us here: https://support.docusign.com/s/?language=en_US.
3.2. You may not frame the Site, place pop-up windows over its pages, or otherwise affect the display of its pages. You may link to the Site, provided that you acknowledge and agree that you will not link the Site to any website containing any inappropriate, profane, defamatory, infringing, obscene, indecent, or unlawful topic, name, material, or information or that violates any intellectual property, proprietary, privacy, or publicity rights. Any violation of this provision may, in our sole discretion, result in termination of your use of and access to the Site effective immediately.
3.3. You acknowledge that we have no obligation to monitor your – or anyone else’s – access to or use of the Site for violations of these Terms, or to review or edit any content. However, except as otherwise expressly provided herein, we have the right to do so for the purpose of operating and improving the Site (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes, analytics, and advertising), to ensure your compliance with these Terms and to comply with applicable law or the order or requirement of a court, consent decree, administrative agency or other governmental body.
4. PRIVACY
4.1. Docusign Privacy Notice. You acknowledge your understanding and hereby provide consent that, except as described in these Terms or applicable Corporate Terms, the information you provide to us or that we collect will be processed and otherwise handled as described in the Docusign Privacy Notice (https://www.docusign.com/company/privacy-policy).
4.2. Access & Disclosure. Except as described in these Terms or applicable Corporate Terms: (i) we may access, preserve, or share any of your information when we believe in good faith that such sharing is reasonably necessary to investigate, prevent, or take action regarding possible illegal activities or to comply with legal process (e.g. a subpoena or other legal process); and (ii) we may also share your information in situations involving potential threats to the physical safety of any person, violations of the Docusign Privacy Notice, the Terms, the Corporate Terms, or any other of our user agreements or terms in effect; or to respond to the claims of violation of the rights of third parties and/or to protect the rights, property and safety of Docusign, our employees, users, or the public. This may involve the sharing of your information with law enforcement, government agencies, courts, and/or other organizations. Further information on how we process personal data may be found in the Docusign Privacy Notice (https://www.docusign.com/company/privacy-policy).
4.3. Data.
4.3.1. Data Generally. You shall be responsible for data that you provide or use in respect of the Site (including Docusign Services). You are solely responsible for determining the suitability of use of the Site for your business or organization and complying with any regulations, laws, or conventions applicable to the data you provide and your use of the Site.
4.3.2. Personal Data. You warrant that collection and use of any personal information or data you provide while using the Site complies with all applicable data protection laws, rules, and regulations. You acknowledge your understanding and hereby provide your consent that we may process such personal data in accordance with the Docusign Privacy Notice (https://www.docusign.com/company/privacy-policy), except as permitted additionally in these Terms.
4.3.3. Usage Data. We may collect and use data, information, or insights generated or derived from the use of the Site (“Usage Data”) for our business purposes, including industry analysis, benchmarking, analytics, marketing, and developing, training and improving its products and services. Before doing so, Docusign will de-identify and anonymize all Usage Data in such a manner that does not allow for the identification of Users, Customer Data, or Customer’s Confidential Information, and will disclose such Usage Data in aggregate form only.
4.4. Site Visitor. You hereby represent and warrant to us that: (a) you have all requisite rights and authority to use the Site under these Terms and to grant all applicable rights herein; (b) any information you submit to us (including Posting to the Site) is true, accurate, and correct; and (c) you will not attempt to gain unauthorized access to the Site, computer systems, or networks under the control or responsibility of us through hacking, cracking, password mining, or any other unauthorized means.
5. CONFIDENTIALITY.
5.1. Scope. Our “Confidential Information” means (a) any written information, materials and other documents supplied by us related to the Site which we do not generally disclose publicly, (b) the Docusign Services themselves, excluding any data you upload to the Docusign Services for processing; and (c) any other of our information that we may disclose in writing or orally and is designated as confidential or proprietary at the time of disclosure, or that due to the nature of the information a reasonable person would clearly understand it to be confidential information; and (d) any amendment to the terms and conditions of these Terms between you and us. Confidential Information shall not include any information that: (i) was or becomes generally known to the public through no fault or breach of these Terms you; (ii) was rightfully in your possession at the time of disclosure without restriction on use or disclosure; (iii) was independently developed by you without use of our Confidential Information; or (iv) was rightfully obtained by you from a third party not under a duty of confidentiality and without restriction on use or disclosure.
5.2. Restricted Use and Nondisclosure. During and after the term, with respect to our Confidential Information you will: (a) use our Confidential Information solely for the purpose for which we provided it; (b) not disclose such Confidential Information to a third party, except on a need-to-know basis to your affiliates, attorneys, auditors, consultants, and service providers who are under confidentiality obligations at least as restrictive as those 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 you protect your own Confidential Information of a similar nature.
5.3. Required Disclosure. If you are required by law to disclose our Confidential Information, you will give us prompt written notice before making the disclosure, unless prohibited from doing so by the legal or administrative process, and assist us to obtain where reasonably available an order protecting our Confidential Information from public disclosure.
5.4. Ownership. Notwithstanding any other provision of these Terms, you acknowledge that, as between you and us, all our Confidential Information you receive from us, including all copies thereof in your possession or control, in any media, is proprietary to and exclusively owned by us. Nothing in these Terms grants you any right, title or interest in or to any of our Confidential Information, except as provided in these Terms. Any incorporation of our Confidential Information into any of your own materials will not render our Confidential Information non-confidential.
6. TERM AND TERMINATION
6.1. Termination. You may terminate your use of the Site at any time by ceasing further use of the Site. Docusign may terminate your use of the Site as a Website Visitor, including denying you access to the Site at our sole discretion for any reason or no reason, including for violation of these Terms. Termination of Customer’s use of the Docusign Services is as set out in the Service Schedules below.
6.2. Effect of Termination. If these Terms expire or are terminated for any reason: (a) any and all of your liabilities to us that have accrued before the effective date of the expiration or termination will survive; (b) licenses and use rights granted to you with respect to the Site, including rights to any intellectual property therein or thereto, will immediately terminate in accordance with these Terms; (c) our obligation to provide any further access to the Site to you under these Terms will immediately terminate, except any such rights that are expressly to be provided following expiration or termination of these Terms; and (d) the provisions of Section 2 (Ownership), Section 3 (Restrictions on Use of the Site), Section 4 (Privacy), Section 5 (Confidentiality), Section 6.2 (Effect of Termination), Section 7 (Warranties and Disclaimers), Section 8 (Indemnification Obligations), Section 9 (Limitations of Liability), Section 10 (General), and Section 11 (Supplemental Terms in Certain Countries) will survive, as well as provisions designated to survive under any Service Schedules and accompanying attachments and Exhibits to these Terms.
7. WARRANTIES AND DISCLAIMERS
7.1. THE SITE AND ANY INFORMATION WE SUPPLY YOU ARE PROVIDED “AS IS” AND “AS AVAILABLE”. YOUR USE OF THE SITE AND INFORMATION SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTEND LEGALLY POSSIBLE, DOCUSIGN AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, AGENTS, AFFILIATES, SUBSIDIARIES, AND LICENSORS (“DOCUSIGN PARTIES”): (a) MAKE 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 DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE; AND (c) DO NOT WARRANT THAT THE SITE OR INFORMATION ARE OR WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, OR BE TIMELY OR SECURE. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM YOUR USE OF THE SITE AND/OR INFORMATION.
7.2. THE DOCUSIGN PARTIES MAKE NO WARRANTIES OR REPRESENTATIONS THAT THE SITE OR INFORMATION HAVE BEEN AND WILL BE PROVIDED WITH DUE SKILL, CARE AND DILIGENCE OR ABOUT THE ACCURACY OR THEREOF, AND ASSUME NO RESPONSIBILITY FOR ANY: (i) ERRORS, MISTAKES, OR INACCURACIES RELATED TO THE SITE OR INFORMATION; (ii) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE OR INFORMATION; (iii) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SITE OR INFORMATION, AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED ON THE SITE; (iv) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SITE; (v) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SITE THROUGH THE ACTIONS OF ANY THIRD PARTY; (vi) ANY LOSS OF YOUR DATA OR OTHER CONTENT FROM THE SITE; AND/OR (vii) ANY ERRORS OR OMISSIONS IN ANY OF YOUR DATA OR CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE. YOU WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF DOCUSIGN TO ANY THIRD PARTY. 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.
7.3. THE DOCUSIGN PARTIES DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SITE, AND THE DOCUSIGN PARTIES WILL NOT BE A PARTY TO OR IN ANY WAY RESPONSIBLE FOR MONITORING ANY ACTIVITIES BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR ACTIVITIES WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE.
7.4. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages such as in this Section 7 or below in Section 9. Accordingly, some of these limitations may not apply to you. If you are a New Jersey resident, or a resident of another state that permits the exclusion of these warranties and liabilities, then the limitations in Section 7 and Section 9 specifically do apply to you.
8. INDEMNIFICATION OBLIGATIONS
8.1. You 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, as applicable: (a) your access to and use of the Site (including the Docusign Services); (b) violation of these Terms by you or; (c) infringement of any intellectual property or other right of any person or entity by you; (d) the nature and substance of all documents, data, or other content uploaded by you to the Site (including the Docusign Services); or (e) any products or services purchased or obtained by you in connection with the Site (including the Docusign Services).
8.2. We retain the exclusive right to settle, compromise, and pay, without your prior consent, any and all claims or causes of action that are brought against us. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter in which we are named as a defendant and/or for which you have indemnity obligations without our prior written consent. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
9. LIMITATIONS OF LIABILITY
9.1. Disclaimer of Consequential Damages.
9.1.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, DOCUSIGN WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY DIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, COVER, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE USE OF THE SITE OR INFORMATION WE SUPPLY YOU, INCLUDING, BUT NOT LIMITED TO, GOODWILL, WORK STOPPAGE, LOST PROFITS, OR LOSS OF BUSINESS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES, AND WHETHER SUCH CLAIMS ARE MADE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
9.1.2. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE DOCUSIGN PARTIES BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY: (a) USE OF THE SITE OR INFORMATION WE SUPPLY YOU; (b) ERRORS, MISTAKES, OR INACCURACIES OF THE SITE OR INFORMATION; (c) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO AND USE OF THE SITE OR INFORMATION; (d) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SITE OR INFORMATION, AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED ON THE SITE; (e) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVERS; (f) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH THE SITE BY ANY THIRD PARTY; (g) ANY LOSS OF YOUR DATA OR USER CONTENT FROM THE SITE; (h) ANY ERRORS OR OMISSIONS IN ANY OF YOUR DATA OR USER CONTENT, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE DOCUSIGN PARTIES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND/OR (i) THE DISCLOSURE OF INFORMATION PURSUANT TO THESE TERMS, OUR PRIVACY NOTICE, OR ANY OTHER COMMUNICATION WE MAKE OR NOTICE WE PROVIDE.
9.1.3. Some countries and jurisdictions do not allow the limitation or exclusion of consequential, direct, indirect, or other damages in contracts with consumers and to the extent you are a consumer the limitations or exclusions in this Section 9.1 may not apply to you.
9.2. Cap on Damages. OUR TOTAL LIABILITY TO YOU FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR TO YOUR USE OF THE SITE OR INFORMATION WE SUPPLY YOU (INCLUDING WITHOUT LIMITATION WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL NOT EXCEED USD$100. THE TOTAL AMOUNT PAID BY YOU TO DOCUSIGN FOR THE DOCUSIGN SERVICE(S) GIVING RISE TO THE CLAIM UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY, OR $100, WHICHEVER IS GREATER. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT. ADDITIONAL OR DIFFERENT LIABILITY AMOUNTS MAY APPLY AS EXPRESSLY SET FORTH IN THE APPLICABLE SERVICE SCHEDULE BELOW. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE FOREGOING, THIS SECTION 9.2 SHALL (I) APPLY ONLY TO THE EXTENT PERMITTED BY PRODUCT LIABILITY LAW; AND (II) SHALL NOT APPLY IN THE EVENT THAT PERSONAL INJURY OR DEATH HAVE BEEN CAUSED INTENTIONALLY BY DOCUSIGN OR BY DOCUSIGN’S GROSS NEGLIGENCE.
9.3. Independent Allocations of Risk. Each provision of these Terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of these Terms between the parties. This allocation 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 these Terms, and each of these provisions will apply even if the warranties in these Terms have failed of their essential purpose.
9.4. Jurisdictional Limitations.
9.4.1. Because some states and jurisdictions do not allow limitation of liability or caps on damages 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).
10. GENERAL
10.1. Third Party Content. We may provide, or third parties may provide, links to other third-party websites, services, or resources that are beyond our control. We make no representations as to the quality, suitability, functionality, or legality of any third-party content to which links may be provided, and you hereby waive any claim you might have against us with respect to such services. DOCUSIGN IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE LOCATED OUTSIDE THE SITE OR POSTS OF USER CONTENT. 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 links to third-party websites or resources on the Site.
10.2. Relationship. At all times, you and we are independent contractors, and are not the agents or representatives of the other. These Terms are not intended to create a joint venture, partnership, or franchise relationship between the parties. Non-parties do not benefit from and cannot enforce these Terms. There are no third-party beneficiaries to these Terms. You must not represent to anyone that you are an agent of ours or are otherwise authorized to bind or commit us in any way without our prior written authorization.
10.3. Trade Restrictions. You acknowledge that the Site, any information we supply you, and any other products, services, information, documentation, software, technology, technical data, and any derivatives thereof, that Docusign makes available pursuant to these Terms (collectively “Excluded Data”) are subject to the export control and sanctions laws and regulations of the United States and other countries that may prohibit or restrict access by certain persons or from certain countries or territories currently including, but not limited to, Cuba, the Crimea region of the Ukraine and Sudan, Iran, North Korea and Syria (“Trade Restrictions”). You represent and warrant that you are not: (i) located in an embargoed country or territory, (ii) under the control of an entity organized in or a resident of an embargoed country or territory, (iii) listed on any U.S. government list of persons or entities with which U.S. persons are prohibited from transacting, including, but not limited to, OFAC’s List of Specially Designated Nationals and Other Blocked Persons, the U.S. State Department's Nonproliferation Sanctions lists, the U.S. Commerce Department’s Entity List or Denied Persons List located at https://www.export.gov/article?id=Consolidated-Screening-List; or (iv) subject to end destination export control regulations, such as, but not limited to, the U.S. Export Administration Regulations and U.S. Government EU Dual-Use Regulation EC 428/2009. You are solely responsible for complying with Trade Restrictions for all Excluded Data and any of its content transmitted through the Site. If we determine in our sole discretion that you are actually or likely to be in violation of any representation or warranty set out in this Section, we have the right to terminate your use of and/or access to the Site immediately with or without notice to you.
10.4. Assignability. Unless such restriction is prohibited under applicable law, you may not assign your rights or obligations under these Terms without our prior written consent. If consent is given, these Terms will bind your successors and assigns. Any attempt by you to transfer your rights, duties, or obligations under these Terms except as expressly provided in these Terms is void. We may freely assign our rights, duties, and obligations under these Terms at any time, with or without notice to you.
10.5. Notices. Except as otherwise permitted by these Terms, any notice required or permitted to be given will be effective only if it is in writing and sent using: (a) Docusign Services; (b) certified or registered mail; or (c) insured courier, to the appropriate party at the address set forth in your registration information or on the Site for Docusign, with a copy, in the case of Docusign, to legal@docusign.com. You or we may change our address for receipt of notice by notice to the other party in accordance with this Section 10.5. Notices are deemed given upon receipt if delivered using Docusign Services, two (2) business days following the date of mailing, or one (1) business day following delivery to a courier.
10.6. Force Majeure. Except for any payment obligations, neither you nor we will be liable for failure to perform any obligation under these Terms 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.
10.7. Mandatory Arbitration, Waiver of Class Actions. PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
10.7.1. You agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions. This Section 10.7 is intended to be interpreted broadly and governs any and all disputes between us including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory; claims that arose before these Terms or any prior; and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property as provided below.
10.7.2. Initial Dispute Resolution. Most disputes can be resolved without resort to arbitration. If you have any dispute with us, you agree that before taking any formal action you will contact us at legal@docusign.com and provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to a Docusign Services account). Except for intellectual property, you and we agree to use reasonable efforts to settle any dispute, claim, question, or disagreement directly through consultation with us, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.
10.7.3. Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims (except as provided below) subject to these Terms as set forth below. Specifically, all claims arising out of or relating to these Terms, the parties' relationship with each other, and/or your use of the Site or information we supply shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions.
10.7.4. Arbitrator’s Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, including but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator's award shall be written and shall be binding on the parties and may be entered as a judgement in any court of competent jurisdiction.
10.7.5. Filing a Demand. To start an arbitration, you must do the following: (a) Write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) Send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, Two Embarcadero Center, Suite 1500, San Francisco California 94111; and (c) send one copy of the Demand for Arbitration to us at: legal@docusign.com.
10.7.6. Fees & Costs. If your claim(s) total is less than US $5,000.00, then: (a) 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 an in-person hearing; (b) Docusign will reimburse your filing fees up to a maximum of US $1,500.00 unless the arbitrator determines that your claims are frivolous; and (c) Docusign will not seek attorney’s fees and costs, unless the arbitrator determines that your claims are frivolous. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise.
10.7.7. No Jury Trial. The parties understand that, absent this mandatory arbitration section, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
10.7.8. Venue. Arbitration shall be initiated and take place in San Francisco, California, United States, and you and Docusign agree to submit to the personal jurisdiction of any federal or state court in San Francisco, California in order to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgement on the award entered by the arbitrator.
10.7.9. Class Action Waiver. The parties further agree that the arbitration shall be conducted in the party’s respective individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND DOCUSIGN AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
10.7.10. Exception: Litigation of Intellectual Property. Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations, or claims arising from or relating to theft, piracy, or unauthorized use of intellectual property in any state, or federal court or other governing body or authority with lawful jurisdiction for such disputes, or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights).
10.7.11. Survival. This Mandatory Arbitration, Waiver of Class Actions section shall survive any termination of your use of the Site or information we supply.
10.8. Entire Terms. These Terms, which include the language and paragraphs preceding Section 1, are the final, complete, and exclusive expression of the agreement between you and Docusign regarding the Docusign Services provided under these Terms. These Terms supersede and the parties disclaim any reliance on previous oral and written communications (including any confidentiality agreements pertaining to the Site (including the Docusign Services) under these Terms) with respect to the subject matter hereof and apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. Docusign hereby rejects any additional or conflicting terms appearing in a purchase order or any other ordering materials submitted by you and conditions assent solely based on these Terms and conditions of these Terms as offered by Docusign. Except as explicitly permitted in these Terms, no modification or amendment of these Terms shall be effective unless it is in writing and signed by an authorized agent of the party against whom the modification or amendment is being asserted. In the event of an inconsistency or conflict, the order of precedence in descending order of control is as follows: (a) the Subscription Plan; (b) any attachments or appendix(ices) to the Service Schedule(s); (c) the Service Schedule; and (d) these Terms.
10.9. Governing Law & Venue. These Terms 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, you and Docusign agree that Docusign is the proponent of these Terms. Notwithstanding your and Docusign’s 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. You and Docusign 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.
10.10. Language and Translations. Docusign may provide translations of these Terms or other terms or policies. Translations are provided for informational purposes and if there is an inconsistency or conflict between a translation and the English version, the English version will control.
10.11. Waiver. The waiver by either you or Docusign of any breach of any provision of these Terms does not waive any other breach. The failure of any party to these Terms to insist on strict performance of any covenant or obligation in accordance with these Terms 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 these Terms.
10.12. Severability. If any part of these Terms is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms will remain in full force and effect. If any material limitation or restriction on the grant of any license to you under these Terms is found to be illegal, unenforceable, or invalid, the license will immediately terminate.
10.13. How to Contact Us. If you have any questions about the Site or Terms, pricing, complaints, or other inquiries, please contact Docusign at 221 Main Street, Suite 1000, San Francisco, CA, 94105, United States, or by calling from the U.S. (800) 379-9973. California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
11. SUPPLEMENTAL TERM IN CERTAIN COUNTRIES. If you reside in one of the following countries or regions, the below provisions also apply to you. To the extent there is a conflict between the provisions below and the provisions in the main portion of the Terms above, the below provisions control to the extent of that conflict.
11.1. California. If you are a California resident, you hereby waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” This release includes the criminal acts of others.
11.2. New Jersey. If you are a New Jersey resident, the limitations in Section 9 specifically do apply to you.
11.3. Austria. If you are domiciled in Austria, 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. In the case of liability for slight negligence, Docusign shall be liable only for breach of a material obligation (“Cardinal Duty”) and any such liability shall be limited to typical, foreseeable damages and shall not include liability for lack of economic results, loss of profit, or indirect damages. A Cardinal Duty in the meaning of this Section 11.3 is an obligation, the fulfilment of which is essential to the performance of these Terms and on the fulfilment of which the contracting party may therefore rely. If you are a consumer, nothing in these Terms affects your rights under mandatory Austrian law and these Terms will be interpreted, construed, and enforced in all respects in compliance with mandatory consumer protection laws of Austria. Notwithstanding Section 10.7 and Section 10.9 above, if you are a consumer, you may submit a claim to enforce your rights under these Terms to the competent courts in Austria. The offering of Docusign Services is limited to businesses only. If you are a consumer in the sense of the Consumer Protection Act ("KSchG"), you must not enter an agreement with Docusign for the Docusign Services.
11.4. Belgium. If you are domiciled in Belgium, except in cases of intentional or gross negligence (including by its employees or agents), or of breach of essential obligations under the contract in the absence of force majeure, Docusign shall not be liable to you for any damages arising out of or related to any transactions or uses of the Services contemplated under these Terms. Notwithstanding Section 10.4, you will have the right to assign your rights or obligations under these Terms subject to you providing 30-day prior written notice to Docusign.
11.5. Germany. If you are domiciled in Germany, 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. In the case of liability for slight negligence, Docusign shall be liable only for breach of a material obligation (“Cardinal Duty”) and any such liability shall be limited to typical, foreseeable damages and shall not include liability for lack of economic results, loss of profit, or indirect damages. A Cardinal Duty in the meaning of this Section 11.5 is an obligation, the fulfilment of which is essential to the performance of these Terms and on the fulfilment of which the contracting party may therefore rely. If you are a consumer, nothing in these Terms affects your rights under mandatory German law and these Terms will be interpreted, construed, and enforced in all respects in compliance with mandatory consumer protection laws of Germany. Notwithstanding Section 10.7 and Section 10.9 above, if you are a consumer, you may submit a claim to enforce your rights under these Terms to the competent courts in Germany.
_____________________________________________________________________________
SCHEDULE 1 ADDITIONAL TERMS FOR DOCUSIGN SERVICES
1. GENERAL. The following terms apply to a respective Docusign Service as set out below:
a. Docusign eSignature. If you use Docusign eSignature, you accept the Terms of the Docusign eSignature Service Schedule 2 below.
b. Early Access Program(s). If you participate in an Early Access Program(s), you accept the Terms of the Early Access Program(s) Service Schedule 3 below.
c. Docusign Notary. If you use Docusign Notary as a Signer or Notary (as defined in the General Terms and Service Terms for Docusign Notary), you accept the Service Terms for Docusign Notary Service Schedule 3 below.
2. DEFINITIONS
a. “Account” means a unique account established by Customer to enable its Authorized Users to access and use a Docusign Service.
b. “Authorized User” mean an individual natural person, whether an employee, business partner, contractor, or agent of a Customer, who is registered or permitted by Customer to use the Docusign Services pursuant to these Terms and up to any maximum number of users or uses specified at the time of purchase (where relevant).
c. “Signer” means a person designated by an Authorized User to access and/or take action upon the eDocuments (as defined below) sent to such individual via Docusign eSignature.
d. “Documentation” means any and all written materials, user manuals, and other documentation and materials supplied by us and related to the Docusign Services, excluding any software code or other information customarily subject to a commercial licence, that is provided by Docusign regarding the Docusign Services. Documentation includes without limitation Docusign’s then-current technical and functional documentation for the Docusign Services.
3. USAGE AND ACCESS RIGHTS
a. Eligibility to Use. You represent and warrant that you are: (a) of legal age (18 years of age or older or otherwise of legal age in your resident jurisdiction) and competent to agree to these Terms on behalf of your company or business; and (b) you (or your Authorized Users, as applicable) are not and will not when using the Site be located in, under the control of, or a national or resident of a U.S. embargoed country or territory and are not a prohibited end user under Trade Restrictions (as defined in section 10.3. You acknowledge that you are not permitted to use the Site if you cannot make these representations. If Docusign has previously prohibited you from accessing the Site or using the Docusign Services, you are not permitted to access the Site or use the Docusign Services. If you are agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to "you" and "your" in these Terms, except for in this sentence, also refer to that organization or entity).
b. Customer Responsibilities. Customers are responsible for all use of the Docusign Services associated with its Account; (c) Customers are solely responsible for maintaining the confidentiality of their Account names and password(s); (d) Customers agree to immediately notify Docusign of any unauthorized use of Customer’s Account of which it becomes aware; (e) Customer agrees that Docusign will not be liable for any losses incurred as a result of a third party's use of its Account, regardless of whether such use is with or without its knowledge and consent; (f) Customer will use the Docusign Services for lawful purposes only and subject to these Terms.
c. Limited License. Upon your acceptance of these Terms, we grant you a limited, non-exclusive and non-transferable license to access and use the Site for your internal business purposes and only as expressly permitted in these Terms and any applicable paid Customer plan that enables registration of an Account for the use of a Docusign Service (“Subscription Plan”) when applicable. You shall not use or permit use of the Site for any illegal purpose or in any manner inconsistent with the provisions of these Terms. If you are or become a direct competitor of Docusign, you may not access or use the Docusign Services without Docusign’s explicit, advance, written consent, and then only for the purposes authorized in writing. Except as otherwise restricted by these Terms, Docusign grants you permission on a non-exclusive, non-transferable, limited basis to display, copy, and download content and materials on the Site provided that you: (a) retain all copyright and other proprietary notices on the content and materials; (b) use them solely for personal or internal, non-commercial use or in accordance with any applicable Subscription Plan; and (c) do not modify them in any way other than permitted by mandatory law. Each discrete Subscription Plan includes restrictions and requirements that outline the features that Customer will be able to access. Any violation by you of the license provisions contained in this Section 3 may result in the immediate termination of your right to use the Site, as well as potential liability for copyright infringement or other claims depending on the circumstances.
d. This Section 3 shall survive expiration or termination of the Terms.
4. RESTRICTIONS ON USE OF THE DOCUSIGN SERVICES
a. In addition, Customers shall not, and shall not permit others to, do the following with respect to the Docusign Services:
i. Use the Docusign Services or allow access to them in a manner that circumvents contractual usage restrictions or that exceeds authorized use or usage metrics set forth in these Terms, any applicable Subscription Plan or Docusign’sReasonable Use Policy (https://www.docusign.com/company/reasonable-use-policy) incorporated herein by reference;
ii. License, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise make any portion of the Docusign Services or Docusign’s then-current Documentation available for access by third parties except as otherwise expressly provided in these Terms; or
iii. Use the Docusign Services for benchmarking or to compile information for a product or service;
iv. Access or use the Docusign Services or Documentation for the purpose of: (i) developing or operating products or services intended to be offered to third parties in competition with the Docusign Services; or (ii) allowing access to your Account by a direct competitor of Docusign.
5. TERMS SPECIFIC TO DOCUSIGN SERVICES
a. Right to Use Docusign Services. Subject to these Terms, Docusign will provide the Docusign Services to Customers in accordance with each Customer’s Subscription Plan, and Docusign grants to each Customer a limited non-exclusive, non-transferable right and license during the Term, solely for its internal business purposes and in accordance with the Documentation, to: (a) use the Docusign Services; (b) implement, configure, and, through its Account Administrator(s), permit its Authorized Users to access and use the Docusign Services up to any applicable limits or maximums; and (c) access and use the Documentation.
i. Authorized Users. Authorized Users of Customer must be identified by a unique email address and user name and two or more natural persons may not use the Docusign Services as the same Authorized User. If the Authorized User is not an employee of Customer, use of the Docusign Services will be allowed only if the user is under confidentiality and other obligations with Customer at least as restrictive as those in these Terms, and is accessing or using the Docusign Services solely to support Customer’s internal business purposes.
ii. Account Administrator. Customer may assign and expressly authorize an Authorized User(s) as its agent to manage Customer’s Account, and management of Customer’s Account includes, without limitation, configuring administration settings, assigning access and use authorization, requesting different or additional services, providing usage and performance records, managing templates, executing approved campaigns and events, assisting in third-party product integrations, and accepting notices, disclosures, and terms and conditions (“Account Administrator”). Customer may appoint an employee, agent or a third-party business partner or contractor to act as its Account Administrator(s) and may change its designation at any time through its Account.
b. Payment Terms.
i. Subscription Plan. The prices, features, and options of the Docusign Services depend on the Subscription Plan selected as well as any changes instigated by Customer. Docusign does not represent or warrant that a particular Subscription Plan will be offered indefinitely and, to the fullest extent permitted under applicable laws, reserves the right to change the prices for or alter the features and options in a particular Subscription Plan without prior notice.
ii. No Refunds. Customer will timely pay Docusign all fees associated with its Subscription Plan, Account, or use of the Docusign Services, including, but without limitation, by Authorized Users. CUSTOMER’S PAYMENTS ARE NON-REFUNDABLE EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS OR AS OTHERWISE AGREED TO BY THE PARTIES. Charges for pre-paid Subscription Plans will be billed to Customer in advance. Charges for per-use purchases and standard Subscription Plan charges will be billed in arrears unless otherwise specified in the Subscription Plan.
iii. Recurring Charges. When you purchase a Subscription Plan, you must provide accurate and complete information for a valid payment method that you are authorized to use. You will be billed for your Subscription Plan either through the payment method you provide, such as a credit card, or through an intermediary provider such as iTunes, Google Play, or a similar app store (“App Store”). Customer must promptly notify Docusign of any change in its invoicing address and must update its Account with any changes related to its payment method. BY COMPLETING REGISTRATION FOR A SUBSCRIPTION PLAN, CUSTOMER AUTHORIZES DOCUSIGN OR ITS AGENT TO CHARGE ITS PAYMENT METHOD 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 CUSTOMER’S USE OF THE DOCUSIGN SERVICES. The Authorization continues through the applicable Subscription Term and any Renewal Term (each as defined in Section 5(d)(i), below) until Customer cancels as set forth in Section 5 of these Terms.
iv. Late Fees & Collection Costs. If Docusign does not receive payment from Customer’s payment method, Customer agrees 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. Customer 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 Customer for any reason against amounts due or asserted to be due from Docusign.
v. Invoices. Docusign will provide billing and usage information 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. Customer agrees to notify us about any billing problems or discrepancies within thirty (30) days after they first appear on your invoice. If Customer does not bring such problems/discrepancies to our attention within thirty (30) days, it agrees to waive its right to dispute such problems or discrepancies.
vi. Billing Cycles. 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. Customer agrees 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 Customer’s payment card issuer or App Store until submission of the accumulated charge(s).
vii. Benefit Programs. You may receive or be eligible for certain pricing structures, discounts, features, promotions, and other benefits (collectively, "Benefits") through a business or government agreement with us ("Business Terms"). Any and all such Benefits are provided solely as a result of the corresponding Business Terms and to the fullest extent permitted under applicable laws, such Benefits may be modified or terminated without notice. If you use the Docusign Services and 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 Business Terms with us, but you are liable for your own charges, then you authorize us to share enough account information to verify your continuing eligibility for those Benefits and the Subscription Plan.
viii. Tax Responsibility. All payments required by these Terms are stated exclusive of all taxes, duties, levies, imposts, fines, or similar governmental assessments, including sales and use taxes, value-added taxes (“VAT”), goods and services taxes (“GST”), excise, business, service, and similar transactional taxes imposed by any jurisdiction (collectively, “Taxes”). Customer shall be responsible for and bear Taxes associated with its purchase of, payment for, access to or use of the Docusign Services. If Docusign is required to remit Taxes associated with Customer’s purchase of, payment for, access to, or use of the Docusign Services, Docusign will add the amount of those Taxes, itemized where required by law, to the payment due. Taxes may be applied without notice. Taxes shall not be deducted from the payments to Docusign, except as required by law, in which case Customer shall increase the amount payable as necessary so that after making all required deductions and withholdings, Docusign receives and retains (free from any Tax liability) an amount equal to the amount it would have received had no such deductions or withholdings been made. Customer hereby confirms that Docusign can rely on the name and address set forth in its registration for a Subscription Plan as being the place of supply for Tax purposes. If applicable, Customer shall provide to Docusign its VAT, GST, or similar tax identification number(s) to avoid application of taxes, as applicable. Customer shall use the ordered Docusign Services for Customer’s business use in the foregoing location(s) in accordance with the provided VAT or GST identification number(s). The parties’ obligations under this Section (Tax Responsibility) shall survive the termination or expiration of these Terms.
ix. Intermediary Provider Billing. If your Subscription Plan is based on intermediary provider billing, your intermediary provider will automatically charge your App Store account monthly for the cost of the Subscription Plan and any applicable taxes. If you are not current with your Subscription Plan payments, we reserve the right to terminate your account, suspend your access to your Subscription Plan, or convert your Subscription Plan subscription to a non-subscription account. You will be responsible for paying all past due amounts
x. Termination. If these Terms expire or are terminated for any reason Customer 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.
c. You may elect to receive authentication, notification and/or eDocument delivery messages by text (“SMS Messages”) at the mobile number you provide as part of your use of the Docusign Services. You represent that you are the subscriber of the mobile service at the mobile number provided, or that you are otherwise authorized by the subscriber to receive SMS Messages at such mobile number as part of your use of the Docusign Services. By electing to receive and send SMS Messages, you acknowledge that message and data rates may apply under your agreement with your provider of mobile communication services (“Mobile Service Provider”). You further understand and acknowledge that your Mobile Service Provider’s network services are outside of Docusign’s control and we are not responsible or liable for any issues arising therefrom. Docusign will not be liable for any of the following: a) failure of delivery of any content via SMS Message; b) any delays in transmission of SMS Messages; or c) any service or other changes implemented by your Mobile Service Provider impacting the receipt or sending of SMS Messages as part of your use of the Docusign Services.
d. SPECIFIC CAP ON DAMAGES. NOTWITHSTANDING SECTION 9.2 OF THE TERMS, OUR TOTAL LIABILITY TO YOU FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO DOCUSIGN SERVICES PROVIDED UNDER THIS SCHEDULE 1 (INCLUDING WITHOUT LIMITATION WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO DOCUSIGN FOR THE DOCUSIGN SERVICE(S) GIVING RISE TO THE CLAIM UNDER THIS SCHEDULE 1 DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY, OR $100, WHICHEVER IS GREATER.
e. Free Trial and Special Offers for Docusign Services.
i. If you register for a free trial, promotional offer, or other type of limited offer for use of Docusign Services (“Free Trial”), 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 these Terms by reference and are legally binding. This Section (Free Trial and Special Offers for Docusign Services) supersedes and applies notwithstanding any conflicting provisions with regard to access and use of a Free Trial.
ii. To the fullest extent permitted under applicable laws, Docusign reserves the right to reduce the term of a trial period or end it altogether without prior notice.
iii.The version of the Docusign Services that is available for a Free Trial may not include or allow access to all features or functions. ANY DATA THAT A CUSTOMER ENTERS INTO THE DOCUSIGN SERVICES, AND ANY CONFIGURATIONS MADE BY OR FOR A CUSTOMER, DURING THE FREE TRIAL WILL BE PERMANENTLY LOST AT THE END OF THE TRIAL PERIOD UNLESS THE CUSTOMER: (a) PURCHASES A SUBSCRIPTION PLAN TO DOCUSIGN SERVICES THAT IS EQUIVALENT TO OR GREATER THAN THOSE COVERED BY THE TRIAL; OR (b) EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD.
iv.Notwithstanding any other provision of these Terms, including without limitation the warranties described in Section 7 of the General Terms (Warranties and Disclaimers) or any service-specific terms and conditions applicable to a particular Docusign Service, including exhibits and attachments accompanying such schedule (“Service Schedule”), during a Free Trial the Docusign Services are provided “AS IS” and “as available” without any warranty that may be set forth in these Terms, and DOCUSIGN DISCLAIMS ANY IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND DOCUSIGN’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO CUSTOMER’S USE OF THE FREE TRIAL IS $100. 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.
6. Your Confidential Information.
a. Scope. “Confidential Information” for you as a Customer and your Affiliates (defined below) means (a) data uploaded by you or your Affiliates to the Docusign Services (“Customer Data”); (b) any other information of you, including your Affiliates, that you disclose to us in writing or orally and is designated as confidential or proprietary at the time of disclosure to us; and (c) any amendment to the terms and conditions of these Terms between you and us. Your Confidential Information does not include any information that: (i) was or becomes generally known to the public through no fault or breach of this Section by us; (ii) was rightfully in our possession at the time of disclosure without restriction on use or disclosure; (iii) was independently developed by our without use of your Confidential Information; or (iv) was rightfully obtained by us from a third party not under a duty of confidentiality and without restriction on use or disclosure.
b. Restricted Use and Nondisclosure. During and after the term, we will: (a) use your Confidential Information solely for the purpose for which it is provided to us; (b) not disclose such Confidential Information to a third party, except on a need-to-know basis to our Affiliates, attorneys, auditors, consultants, and service providers who are under confidentiality obligations at least as restrictive as those 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 we protect our own Confidential Information of a similar nature.
c. Required Disclosure. If we are required by law to disclose your Confidential Information, we will use reasonable efforts to give you prompt written notice before making the disclosure, unless prohibited from doing so by the legal or administrative process, and assist you to obtain where reasonably available an order protecting your Confidential Information from public disclosure.
d. Ownership. Notwithstanding any other provision of these Terms, we acknowledge that, as between you and us, all your Confidential Information we receive from you, including your Customer Data, is owned by you. Nothing in these Terms grants us any right, title or interest in or to any of your Confidential Information except as provided in these Terms. All other data regarding the Docusign Services, as between you and us, at all times are and will remain our sole and exclusive property.
7. Term and Termination – Customers.
a. Suspension of Access to Docusign Services. In accordance with these Terms, Docusign may suspend any use of the Docusign Services, remove any content or disable or terminate any Account or Authorized User that Docusign reasonably and in good faith believes violates these Terms. Docusign will use commercially reasonable efforts to notify you prior to any such suspension or disablement, unless Docusign reasonably believes that: (a) 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 (b) it is necessary to delay notice in order to prevent imminent harm to the Docusign Services 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.
b. Term. The period of effectiveness of these Terms, with respect to Docusign Services, begins on the date the Customer accepts these Terms and continues until the Customer’s Subscription Plan expires or its use of the Docusign Services ceases (including as a result of termination in accordance with this Section 6), whichever is later (“Term”).
c. Subscription Term and Automatic Renewals.
i. Docusign’s Subscription Plans automatically renew unless otherwise noted. If you purchase a Subscription Plan you agree to pay the then-current applicable fee associated with the Subscription Plan and further agree and acknowledge that it will automatically renew, unless, prior to the end of the current period of effectiveness of the Subscription Plan (“Subscription Term”): (a) you terminate your Account; (b) you set your Account not to auto-renew by logging in to Docusign Services or contacting us here: (https://support.docusign.com/s/?language=en_US); (c) Docusign declines to renew your Subscription Plan; or (d) these Terms are otherwise properly terminated as expressly permitted herein. The Subscription Plan will automatically renew on a monthly or annual basis, depending on the method you choose (“Renewal Term”).
ii.Promotional codes may only be used for your first Subscription Term. If you purchased your Subscription Plan with a promotional code, each time your Subscription Plan renews you will be charged the full annual billing amount. If your Subscription Plan is ever terminated for any reason, and you purchase another Subscription Plan, you shall not be eligible to use a promotional code.
iii.We reserve the right to modify, terminate, or otherwise amend the fees and features associated with your Subscription Plan to the fullest extent permitted under applicable laws. We may also recommend that you purchase a new Subscription Plan that is comparable to your previous Subscription Plan that is ending. Before we change the fees and charges in effect, or add new fees and charges, we will give you advance notice of at least thirty (30) days. If we provide you such advance notice, unless prohibited by applicable laws, your continued use of the Docusign Services after the changes have been made will constitute your acceptance of the changes. If you do not wish to continue subscribing with the new fees or features, you may terminate your Subscription Plan as described in Section 6. If you accept the new Subscription Plan, its terms and conditions with these Terms will apply in the Renewal Term and thereafter.
d. Termination by Customer. You may terminate your Account at any time upon ten (10) days’ advance written notice to Docusign. If you wish to terminate, you must provide notice by contacting us here: (https://support.docusign.com/s/?language=en_US). If you purchased your Subscription Plan through an external service, such as an App Store, you must use the tools made available by those services to manage and/or terminate your Subscription Plan. Section 4(b)(ii) notwithstanding, if a Customer terminates its annual Subscription Plan within the first thirty (30) days of the initial Subscription Term, it may submit a written request to Docusign for a refund of the fees paid to Docusign for the initial Subscription Term, which Docusign will consider, without obligation, in good faith. Docusign has no obligation to consider refund requests related to a termination of a Subscription Plan if the termination does not occur in the first thirty (30) days of the initial Subscription Term, or if there has been a violation of other Terms herein, or if records indicate substantial productive use took place during that period.
e. Default; Termination by Docusign. A Customer will be in default of these Terms if: (a) it fails to timely pay any amount owed to us or an Affiliate of ours; (b) it or an Authorized User associated with its Account breaches any provision of these Terms or violates any published policy applicable to the Docusign Services; (c) it is or becomes subject to any proceeding under the Bankruptcy Code or similar laws; or (d) if, in our sole discretion, we believe that continued use of the Docusign Services by the Customer (or its Authorized Users or Signers) creates legal risk for Docusign or presents a threat to the security of the Docusign Services or Docusign’s customers. If a Customer is in default, we may, without notice: (i) suspend its Account and use of the Docusign Services; (ii) terminate its Account; (iii) charge reactivation fees in order to reactivate its Account; and (iv) pursue any other remedy available to us. A Docusign “Affiliate” means any legal entity that Docusign, Inc. owns, that owns Docusign, Inc. or that is under common control with Docusign, Inc. A Customer “Affiliate” means any legal entity that Customer owns, that owns Customer or that is under common control with Customer. “Control” and “own” mean possessing greater than 50% interest in an entity or the right to direct the management of the entity.
f. Effect of Termination. If these Terms expire or are terminated for any reason: (a) any and all of your liabilities to us that have accrued before the effective date of the expiration or termination will survive; (b) licenses and use rights granted to you with respect to the Site, including rights to any intellectual property therein or thereto, will immediately terminate in accordance with these Terms; (c) our obligation to provide any further access to the Site to you under these Terms will immediately terminate, except any such rights that are expressly to be provided following expiration or termination of these Terms; and (d) the provisions of Section 4(b)(ii) (No Refunds), Section 4(b)(vii) (Benefit Programs), Section 4(b)(xiii) (Tax Responsibility), and Section 4(d) (Free Trial and Special Offers for Docusign Services) of this Schedule 1 (Additional Terms for Docusign Services), as well as provisions designated to survive under the Terms, any Service Schedules and accompanying attachments and Exhibits to the Terms.
_____________________________________________________________________________
SCHEDULE 2 SERVICE SCHEDULE FOR DOCUSIGN ESIGNATURE
This Service Schedule for Docusign eSignature (the “Service Schedule”)was last updated on May 2, 2022. Unless otherwise defined in this Service Schedule, capitalized terms will have the meaning given to them in the General Terms.
1. DEFINITIONS
a. “Docusign eSignature” means the on-demand electronic signature Docusign Service, which provides online display, certified delivery, acknowledgement, electronic signature, and storage services for eDocuments via the Internet.
b. “Envelope” means an electronic record containing one or more eDocuments consisting of a single page or a group of pages of data uploaded to the System.
c. “Signer” means a person designated by an Authorized User to access and/or take action upon the eDocuments sent to such individual via Docusign eSignature.
d. “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 make available the Docusign eSignature service via the Internet.
e. “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) that Docusign may use to generate and maintain the digital audit trail required by Docusign eSignature.
2. ADDITIONAL USAGE LIMITATIONS AND CUSTOMER RESPONSIBILITIES
a. Docusign’s provision of Docusign eSignature is conditioned on Customer’s acknowledgement of and agreement to the following:
i. Docusign eSignature facilitates the execution of eDocuments between the parties to those eDocuments. Nothing in this Service Schedule may be construed to make Docusign a party to any eDocument processed through Docusign eSignature, and Docusign makes no representation or warranty regarding the transactions sought to be effected by any eDocument;
ii. Between Docusign and Customer, Customer has exclusive control over and responsibility for the content, quality, and format of any eDocument. Without limiting the foregoing, all eDocuments, together with any messages included within an Envelope, stored by Docusign on the System are maintained in an encrypted form, and Docusign has no control of or access to their contents except to the extent access is requested in writing and made available by Customer to Docusign;
iii. 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 or liable to determine whether any particular eDocument is (i) subject to an exception to applicable electronic signature laws; (ii) subject to any particular agency promulgations; or (iii) can be legally formed by electronic signatures;
iv. 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 Customer’s eDocuments or other documents to any third parties;
v. 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: (i) determine whether any particular transaction involves a “consumer;” (ii) furnish or obtain any such consents or determine if any such consents have been withdrawn; (iii) provide any information or disclosures in connection with any attempt to obtain any such consents; (iv) provide legal review of, or update or correct any information or disclosures currently or previously given; (v) provide any such copies or access, except as expressly provided in the Documentation for all transactions, consumer or otherwise; or (vi) comply with any such special requirements;
vi. Customer undertakes to determine whether any “consumer” is involved in any eDocument presented by its Authorized Users for processing, and, if so, to comply with all requirements imposed by law on such eDocuments or their formation;
vii. Customer agrees that its assigned Account Administrator(s) has authority to provide Docusign with and accept from Docusign any required authorizations, requests, or consents on behalf of Customer with respect to Customer’s Account;
viii. Customer agrees it is solely responsible for the accuracy and appropriateness of instructions given by it and its personnel to Docusign in relation to the Docusign Services, including without limitation instructions through its Account as made by the assigned Account Administrator;
ix. Customer may elect to utilize a digital certificate, service, or process that authenticates a Signer’s identity or the authenticity of an eDocument as part of a Docusign eSignature. If that digital certificate, service, or process is provided by anyone other than Docusign, even where the digital certificate, service, or process is chosen from a menu from within the Docusign Services, Customer agrees that it is solely responsible for determining the reliability, validity, and legality of that third party digital certificate, service, or process and agrees that Docusign is not responsible to determine whether any such digital certificate, service, or process is reliable, valid, or legal; and
x. Customer agrees that if Customer is invited as an intermediary into another Docusign customer’s network, Customer shall be bound by the rules prescribed by that Docusign customer, and Customer agrees to be liable for all of their acts or omissions as a result of their use of the Docusign customer’s network.
b. Subscription Plans purchased onwww.docusign.com may not be used in conjunction with Docusign APIs and are available for use with a limited number of integrations.
3. eDOCUMENT STORAGE AND DELETION
a. Sending, Storage. During the Term Docusign will send and store eDocuments per these Terms of the Subscription Plan. However, Docusign may set and enforce limits for reasonable use in order to prevent abusive or unduly burdensome use of Docusign eSignature. Customer, through its Account Administrator(s), may retrieve and store copies of its eDocuments for storage outside of the System at any time during the Subscription Term when Customer is in good financial standing under these Terms, and may delete or purge its eDocuments from the System at its own discretion.
b. Uncompleted eDocuments. Docusign may, at its sole discretion, delete uncompleted eDocuments from the System immediately and without notice upon the earlier of: (a) expiration of the Envelope (where Customer has established an expiration for such Envelope, not to exceed 365 days); or (b) expiration of the Subscription Term. Docusign assumes no liability or responsibility for a party’s failure or inability to electronically sign any eDocuments within such a period of time.
c. Deletion. Docusign may delete an Account and Customer Data, including without limitation eDocuments (whether complete or not), upon the expiration of the Subscription Term or termination as described in Section 5 of Schedule 1 (Additional Terms for Docusign Services). In addition, Docusign may delete eDocument(s) in a Customer Account at the explicit direction of such Customer and such deletion may also result in the deletion of such eDocument(s) from a Signer Account. Signer hereby acknowledges that any eDocument(s) sent by another Customer to Signer shall be deleted from the Signer’s Docusign eSignature Account when such sending Customer initiates a purge of such eDocument(s) from the sending Customer(s) Account. Signer acknowledges its responsibilities regarding Customer Data under Section 4(a) below and hereby agrees that it is solely responsible for maintaining, if desired, backup copies of its eDocuments (including backup copies stored outside of Docusign eSignature) and further agrees that Docusign is not responsible for: a) storing eDocuments in a Signer Account after a sending Customer Account purge of such eDocuments; or b) maintaining backup storage of eDocuments on behalf of Signer.
d. Retention of Transaction Data. Docusign may retain Transaction Data for as long as it has a business purpose (which if required under applicable law, is covered by a legal basis) to do so.
e. Usage Data. With respect to this Service Schedule, Usage Data may include, without limitation, any data models created, extrapolated, derived from, adapted, enhanced, or developed by Docusign using Customer Data and Customer’s and/or its Authorized User’s use of the Docusign Services, and any underlying data architecture, including, without limitation, the data infrastructure, schema, rules, components, specifications, methods or processes and components that dictate how data interacts and is organized, calculated or translated from various sources into one or more meaningfully defined data models and related security protocols as integrated and applies at each stage of data processing. Without limitation of any term in the Terms, Docusign may analyze Customer Data and Customer usage patterns using techniques such as machine learning in order to improve and develop Docusign’s current and future products, services, methods, and processes. Any output from such machine learning techniques, including the resultant machine learning models, is deemed Usage Data that is owned by Docusign. Docusign retains all right, title, and interest in and to the Usage Data, and any unauthorised use of Usage Data is strictly prohibited.
4. INFORMATION SECURITY AND PERSONAL DATA
a. Customer Responsibilities. Docusign eSignature provides Customer with certain features and functionalities that Customer may elect to use, including the ability to retrieve and delete its eDocuments in the System. Customer is responsible for properly: (a) configuring Docusign eSignature; (b) using and enforcing controls available in connection with Docusign eSignature (including any security controls); and (c) taking such steps, in accordance with the functionality of Docusign eSignature, that Customer deems adequate to maintain appropriate security, protection, deletion, and backup of Customer Data, which include controlling the management of Authorized Users’ access and credentials to Docusign eSignature, controlling Customer Data that is Processed by Docusign eSignature, and controlling the archiving or deletion of eDocuments in the System. Customer acknowledges that Docusign has no obligation to protect Customer Data, including Personal Data (defined below), that Customer elects to store or transfer outside of Docusign eSignature (e.g., offline or on-premise storage).
b. Information Security. Docusign will employ commercially reasonable technical and organizational measures that are designed to prevent unlawful or unauthorized access, use, alteration, or disclosure of Customer Data.
c. Data Processing/Transfer. The Data Protection Attachment for Docusign Services found at: https://www.docusign.com/company/terms-and-conditions/data-protection-attachment(“DPA”) applies to the processing of Personal Data (as defined in Section 1 of the DPA).
5. ACCOUNTS & ORGANIZATIONAL ADMINISTRATION. Each Account is associated with a single email address. If the domain of the primary email address associated with an Account is owned by a business or other organization (“Entity”) and was assigned to Customer as an employee, contractor or member of the Entity, such as yourname@youremployer.com or yourname@nonprofit.org (“Entity Email Address”), Customer grants that Entity and its Account Administrator(s) permission to: (a) identify Accounts created with an Entity Email Address; and (b) restrict or terminate access to an Account created with an Entity Email Address. Customer acknowledges and agrees that Docusign may assist Entity with such administration.
6. SUBSCRIPTION PLANS & PRICES. The prices, features, and options of Docusign eSignature depend on the Subscription Plan selected by Customer as well as any changes instigated by Customer. For example: (a) if Customer adds Authorized Users, Docusign will charge the applicable subscription amount for each additional Authorized User; or (b) if Customer sends more Envelopes than are included in your Subscription Plan, Docusign may charge for additional envelopes or assign Customer to a new Subscription Plan. Customer may also purchase optional services on a periodic or per-use basis. To the fullest extent permitted under applicable laws, Docusign may change the prices for or alter the features and options in a particular Subscription Plan without notice.
7. DOCUSIGN PAYMENTS
a. Docusign eSignature may be ordered with “Docusign Payments,” which means functionality that allows Customer to submit agreements, invoices, and other documents to Signers via Docusign eSignature to facilitate the submission of Signer payment credentials and authorizations directly to payment applications, gateways, processors, and service providers that store, process, or transmit cardholder data as part of authorization or settlement (“Payment Applications”).
b. Docusign’s provision of Docusign Payments is conditioned on Customer’s acknowledgement of and agreement to the following:
i. The payment processing activities facilitated through Docusign Payments are between Customer and a Payment Application or another third party designated by Customer and not with Docusign. Customer is solely responsible for registering and maintaining an account with Payment Applications to facilitate the payment processing via Docusign Payments and for complying with all agreements, terms of use, or other terms and conditions between Customer and such Payment Applications. Payment Applications are independent contractors and not agents, employees, or subcontractors of Docusign. Docusign does not control the payment methods (i.e., credit card, debit card, ACH transfer) made available by the Payment Applications through Docusign eSignature nor the products or services that are sold or purchased by Customer via Docusign Payments. Customer acknowledges and agrees that Docusign cannot ensure that a Payment Application Signer or third party will complete a payment processing or that it is authorized to do so.’
ii. Customer authorizes (where such authorization is required) Docusign to store, process, and transmit Customer Data as necessary for a Payment Application to facilitate payment processing between Customer and a third party designated by Customer. Docusign Payments will temporarily store information received from Customer, such as account information for a Payment Application, only to facilitate the payment processing.
iii. Customer is solely responsible for complying with: (1) any applicable standards developed and published by payment networks (such as Visa, Mastercard, American Express, and any other credit, debit, or electronic funds transfer network), including but not limited to, the current Payment Card Industry Data Security Standard (“PCI DSS”); and (2) all laws and regulations applicable to the payment processing conducted by Customer via Docusign Payments, including but not limited to, those that may apply to Customer: in connection with collecting and storing information, including payment credentials about Signers; making adequate, clear, and conspicuous disclosures related to the storage and use of Signers’ payment credentials; and the use of stored payment credentials to collect future payments.
iv. Customer is solely responsible for any and all disputes with any Payment Applications or Signers related to or in connection with a payment processing sought to be facilitated via Docusign Payments, including but not limited to: (1) chargebacks; (2) products or services not received; (3) return of, delayed delivery of, or cancelled products or services; (4) cancelled transactions; (5) duplicate transactions or charges; (6) electronic debits and credits involving bank accounts, debit cards, credit cards, and check issuances; and (7) the amount of time to complete payment processing.
c. To the extent applicable to Docusign in the provision of Docusign Payments, Docusign represents that it is presently in compliance, and will remain in compliance, with the current PCI DSS. Docusign acknowledges that credit and debit card account numbers or related data processed via Docusign Payments is, as applicable, owned exclusively by Customer, credit card issuers, the relevant payment networks, and entities licensed to process credit and debit card transactions on behalf of Customer, and further acknowledges that such information may be used by Docusign solely to assist the foregoing parties in completing the processing activities described in these Terms or the Corporate Terms.
8. SPECIFIC CAP ON DAMAGES. NOTWITHSTANDING SECTION 9.2 OF THE TERMS, OUR TOTAL LIABILITY TO YOU FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO DOCUSIGN SERVICES PROVIDED UNDER THIS SCHEDULE 2 (INCLUDING WITHOUT LIMITATION WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO DOCUSIGN FOR THE DOCUSIGN SERVICE(S) GIVING RISE TO THE CLAIM UNDER THIS SCHEDULE 2 DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY, OR $100, WHICHEVER IS GREATER.
_____________________________________________________________________________
SCHEDULE 3 SERVICE SCHEDULE FOR EARLY ACCESS PROGRAM(S)
1. EARLY ACCESS PROGRAMS
Docusign may offer, but is not obligated to offer, certain Early Access Services (defined below) through written notice (e.g., email notification or in-product notification) or other communication to you. The terms governing the Early Access Services set forth in this Service Schedule for Early Access Program(s) (the “EAP Terms”) are effective as of the date of first access to such Early Access Program(s) (the “EAP Effective Date”) and by accessing such Early Access Services, you indicate that you have read, understood, and expressly agree to the EAP Terms contained in this Service Schedule. In the event of any inconsistency or conflict between the Terms and these EAP Terms, these EAP Terms shall control with respect to the Early Access Service. The EAP Terms only apply to the Early Access Service and not to any generally available Docusign Service.
2. DEFINITIONS
“Early Access Service” means: (a) access to certain Docusign Services and related features, technologies, or products that are in development, beta, or pre-general release versions; (b) participation in a specific early access program that includes access to certain features, technologies, products, or services that are not yet generally available to Docusign Customers or are only available to a limited set of Docusign Customers; and (c) access to any software, libraries, specifications, or other technical documentation related to an Early Access Service provided to you by Docusign under these Terms.
“Early Access Period” means the term indicated on the registration page or program communication for such Early Access Service or such period as communicated to you by Docusign (whether as a part of the Early Access Service offering communication or otherwise).
“Production Environment” means the System setting where software, hardware, data, processes, and programs are executed for their final and intended operations by end users of Docusign Services.
3. EARLY ACCESS SERVICE
a. Right to Use. Subject to the terms set forth herein, Docusign grants you a limited, non-exclusive, non-transferable, revocable license to access and use the Early Access Service during the Early Access Period for the purposes described by Docusign. Upon notice to you, Docusign may modify the permitted use of or suspend your access to any Early Access Service at any time and for any reason.
b. Access and Use Restrictions. You will not and will not permit any third party to: (a) rent, sell, license, assign, copy, modify, create derivative works of, translate, reverse engineer, decompile, disassemble, or otherwise reduce to human-perceivable form any portion of the Early Access Service other than granted by mandatory applicable law; (b) provide, dispose or disclose any information or data contained in or related to the Early Access Service to any third party in any form for any reason whatsoever, without Docusign’s prior written consent; (c) use the Early Access Service for your product development efforts, or otherwise exploit the Early Access Service for any other commercial purpose; (d) use the Early Access Service in any manner that violates the rights of any third party, purports to subject Docusign to any other obligations, or violates applicable laws and regulations; or (e) use or permit the Early Access Service to be used in any manner that is likely to damage, disable, overburden, or impair the Early Access Service or its related systems and networks.
4. OWNERSHIP AND FEEDBACK
a. Ownership. Docusign, its Affiliates, or its licensors own all right, title, and interest in and to any and all copyrights, trademark rights, patent rights, database rights and other intellectual property or other rights in and to the Early Access Service, including any improvements, design contributions or derivative works thereto, and any knowledge or processes related thereto and provided hereunder. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO DOCUSIGN.
b. Feedback. You agree to provide ongoing recommendations, suggestions, ideas, derivations, enhancement requests or other feedback concerning the operational and functional capabilities of the Early Access Service (“EAP Feedback”). You hereby assign to Docusign all right, title, and interest in and to any EAP Feedback. You agree that Docusign is free to make unrestricted use, copy, modify, sell, distribute, sub-license, and create derivative works of the EAP Feedback without any necessity of payment or attribution to you. EAP Feedback will not be deemed your Confidential Information.
5. THIRD PARTY SERVICES. You may choose to obtain products or services and related materials that are provided, licensed, or supported by third parties (including open source software licenses) (“Third-Party Services”) for use with the Early Access Service. Certain Third-Party Services are provided pursuant to the terms of the applicable third-party license or separate agreement between the licensor of the Third-Party Services and you, and Docusign assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any Third-Party Services. Specific license terms, notices, attributions, and other information about any open source or third party software included in the Early Access Service are available in: (a) the licensing file distributed with the Early Access Service; (b) the header files; or (c) the release notes. Third-Party Services are provided “AS IS” for your convenience only and Docusign makes no representation or warranty regarding the Third-Party Services and any modifications, improvements, enhancements, additions, or derivations thereto made or provided by Docusign, whatsoever.
6. YOUR RESPONSIBILITIES; DISCLAIMER OF CERTAIN OBLIGATIONS
a. Your Responsibilities. You are solely responsible for: (a) your and your users’ activities that occur in relation to the Early Access Service; (b) ensuring that you and your users comply with these Terms; and (c) all data and content you use within the Early Access Service. An Early Access Service may, at any time and without prior notice, be updated, suspended, unavailable, or negatively affected by scheduled maintenance. You acknowledge that you may be required to update your version of the Early Access Service in order to continue using the Early Access Service.
b. Disclaimer of Certain Obligations. Docusign has no obligation under these Terms or otherwise to: (a) correct any bugs, defects, or errors in the Early Access Service or otherwise to provide any support, maintenance services, service levels, or uptime guarantees for the Early Access Service; (b) store, hold, export, return, or destroy any data or content after the Early Access Period; and (c) create, distribute, or otherwise offer a generally available version of the Early Access Service (“GA Service”). Docusign has no obligation to offer a GA Service to you or, unless otherwise agreed in writing, to offer any discounted pricing schedules or special terms in relation to such GA Service. A GA Service may perform in a manner significantly different from the Early Access Service. Accordingly, you acknowledge that any research or development performed, or business plans made, by you regarding or in reliance upon the Early Access Service is done entirely at your own risk.
7. MARKETING. Throughout and upon expiration or termination of the Early Access Service, you will provide material, statistics, quotes, or information related to your use of the Early Access Service for Docusign’s use in certain marketing activities and you agree that such information will not be deemed your Confidential Information. You will not communicate to a third party, advertise, or publicly announce any information regarding the Early Access Service or your use thereof without Docusign’s prior written permission.
8. TERM AND TERMINATION
a. Term of Early Access Service. These EAP Terms commence on the EAP Effective Date and will continue for the Early Access Period, unless earlier terminated as provided by this Section 8 or until the initial commercial release by Docusign of an applicable GA Service. Your access to and use of an Early Access Service is strictly limited to the Early Access Period. For continued access to and use of the GA Service, you will need to: (a) purchase a subscription plan subject to separate terms and conditions; and (b) enter into an order form specifying the purchase of such applicable GA Service.
b. Termination. Either party may terminate these EAP Terms with or without cause upon ten (10) days’ prior written notice to the other party. Your license to use the Early Access Service terminates automatically on your breach of the license conditions or restrictions stated in these EAP Terms. Upon termination or expiration of the Early Access Service, you shall immediately discontinue using the Early Access Service and shall uninstall or destroy all copies of the Early Access Service in your possession or control. Notwithstanding the foregoing sentence, if the Early Access Service has been provided in tangible form, you shall ship the Early Access Service for return to Docusign within three (3) business days of termination or expiration of these EAP Terms. Further, upon Docusign’s request, you will certify in writing that you are no longer in possession of the Early Access Service or any copies of the Early Access Service. For the avoidance of doubt, termination of these EAP Terms will not terminate any other agreement between the parties. The rights and obligations of the parties set forth in Sections 2, 4 and 8 through 11 of these EAP Terms shall survive expiration or termination of these EAP Terms for any reason.
c. Effect of Termination. The termination or expiration of these EAP Terms will not terminate the Terms.
9. THIRD PARTY CLAIMS. You will indemnify Docusign and its Affiliates and each of their respective employees, directors, agents, and representatives (“Indemnified Parties”) from, and defend the Indemnified Parties against, any actual or threatened third-party claim, or legal action or administrative agency action or proceeding (“Claim”) to the extent arising from or related to: (a) any alleged infringement of any third-party intellectual property rights by your data, content or Third-Party Services you obtain and use as part of your use of the Early Access Service; or (b) any breach by you of your obligations under this Section 9. Docusign will give you prompt written notice of a Claim and provide reasonable assistance with its defense. You will have sole authority to defend or settle a Claim at your expense, provided any such settlement does not impose ongoing obligations on the Indemnified Parties.
10. DISCLAIMER OF WARRANTIES. IT IS UNDERSTOOD THAT THE EARLY ACCESS SERVICE AND ANY UPDATES MAY CONTAIN ERRORS AND ARE PROVIDED FOR LIMITED EVALUATION ONLY. THE EARLY ACCESS SERVICE IS STILL IN TESTING PHASE AND IS PROVIDED ON AN “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, INCLUDING BY NOT LIMITED TO THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. DOCUSIGN DOES NOT WARRANT THAT THE EARLY ACCESS SERVICE WILL FUNCTION WITHOUT INTERRUPTION, IS FREE OF MALICIOUS CODE OR THAT IT IS ERROR-FREE. YOU ARE ADVISED TO SAFEGUARD YOUR DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE EARLY ACCESS SERVICE AND/OR ACCOMPANYING MATERIALS. ANY DATA THAT YOU ENTER INTO THE EARLY ACCESS SERVICE, AND ANY CONFIGURATIONS MADE BY OR FOR YOU, DURING THE EARLY ACCESS PERIOD WILL BE PERMANENTLY LOST.
11. LIMITATION OF LIABILITY. IT IS UNDERSTOOD THAT THE EARLY ACCESS SERVICE IS PROVIDED WITHOUT CHARGE FOR LIMITED EVALUATION PURPOSES. ACCORDINGLY, THE TOTAL LIABILITY OF DOCUSIGN ARISING OUT OF OR RELATED TO THESE EAP TERMS SHALL NOT EXCEED ONE HUNDRED ($100) DOLLARS. DOCUSIGN’S SUPPLIERS AND LICENSORS SHALL HAVE NO LIABILITY HEREUNDER FOR DAMAGES OR OTHERWISE. IN NO EVENT SHALL DOCUSIGN OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR LOSS OF DATA OR INFORMATION), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF DOCUSIGN OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND DOCUSIGN WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT SUCH LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS.
_____________________________________________________________________________
SCHEDULE 4 SERVICE TERMS FOR DOCUSIGN NOTARY
These Service Terms for Docusign Notary (“Service Terms”) were last updated on July 21, 2021. Unless otherwise defined herein, capitalized terms will have the meaning given to them in the Terms. These Service Terms are limited to the scope of the Docusign Notary service and are not applicable to any other Docusign Services.
1. DOCUSIGN NOTARY. “Customer(s)” as used in these Service Terms means customers who purchased Docusign Notary under Corporate Terms. Docusign Notary enables Customers to invite Notaries who are employees or agents of such Customers to use Docusign Notary to conduct Remote Online Notarization of eDocuments and to create and maintain a Journal and Recording (each as defined below) of each RON Session conducted on Docusign Notary.
2. DEFINITIONS
“Docusign Notary” means the on-demand notary service which provides online display, electronic signature, Remote Online Notarization and storage services for eDocuments, and enables the creation and storage of electronic notarial Journal and Recordings, all via the Internet.
“Journal” means a chronological record of entries of data and information regarding a Session conducted on Docusign Notary, and the eDocuments and Signer(s) participating in such Session, which record is required to be created and maintained by the Notary under Notarial Law.
“Notarial Law” means the laws, rules, regulations and guidance of each state, jurisdiction or territory of the United States governing the conduct of RONs by a Notary duly commissioned in such state, jurisdiction or territory.
“Notary” means a Signer who is a natural person commissioned as a notary public by a state, jurisdiction or territory of the United States, who has the required certifications, approvals and training to perform RONs, and who is invited by an Authorized User of a Customer to use Docusign Notary.
“Participant” means a natural person who attends a Session in a capacity other than a Signer or Notary (e.g., an observer or a non-signing witness).
“Recording” means the audio-video recording of the audio-video communication conducted during a Session on Docusign Notary.
“Remote Online Notarization” or “RON” means the use of audio-video communication technology to complete a notarial act where the Signer applying an electronic signature to eDocument(s) is not in the same physical location as the Notary at the time the notarial act is performed.
“Service Providers” means any third-party service provider to Docusign, including any identity verification provider or credential analysis provider.
“Session” means a unique RON notarial act on Docusign Notary during which an eDocument(s) is reviewed, signed and notarized by a Notary with a minimum of one Signer.
“Signer”, solely for purposes of these Service Terms for Docusign Notary, means a Signer who is not acting in the capacity of a Notary during a Session on Docusign Notary.
“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 make available the Docusign Notary and Docusign eSignature services via the Internet.
“Transaction” means any eDocument that is reviewed, executed and notarized during a Session.
“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) that Docusign may use to generate and maintain the digital audit trail required by Docusign Notary.
“User Data”, solely for purposes of these Service Terms for Docusign Notary, means any information or data that is collected or used in the performance of RONs or otherwise to complete the Transaction subject to the RON Session, and is not limited to data included in the eDocument(s) being notarized. User Data includes, but is not limited to, information about or pertaining to an individual in a record which identifies the individual or that can be used to distinguish or trace an individual’s identity, either alone or when combined with other information, such as an individual’s photograph, Social Security number, driver’s license number, name, address and telephone number.
3. REGISTRATION
a. Customer Invitation. Upon receiving an invitation from Customer’s Authorized User to use the Docusign Notary service, the Notary must register for Docusign Notary and create a Notary user profile that is associated with a Customer Account. Each Notary user profile is associated with a single email address. Notary acknowledges that Customer is responsible for the administration of Notary user profiles associated with such Customer’s Account.
b. Notary Certification. By creating a Notary user profile, Notary certifies that (i) all information Notary provides is accurate, including name, email address, and any other information that is requested from Notary; and (ii) that the user profile was created by Notary for legitimate purposes and not to commit fraud. Notary further agrees to update their user profile information when necessary, including and not limited to renewals of the Notary commission.
c. Access Credentials. When creating a Notary user profile, Notary will create a username and password. The Notary agrees to maintain their username and password in confidence and not disclose it to unauthorized persons. Notary agrees to notify Docusign of any unauthorized use, including suspected unauthorized use, of the Notary’s login credentials or user profile. Notary will use best efforts to ensure that no unauthorized person may gain access to Docusign Notary using Notary’s login credentials or user profile, including, without limitation, using commercially reasonable security measures relating to user profile access.
4. NOTARY RESPONSIBILITIES
a. If you are a Notary, by using Docusign Notary, you specifically acknowledge and agree to the following:
i. You are commissioned as a notary public by a state, jurisdiction or territory of the United States, and such commission authorizes you to perform RONs in accordance with the Notarial Laws;
ii. As of the start of each Session, your commission to perform RONs is valid and current in your state, jurisdiction or territory of commission, and you have provided a copy of your certificate of commission to the Customer that owns the Account with which your Notary user profile is associated (the “Employer”);
iii. If required by the Notarial Laws, you have notified the applicable commissioning agency that you have selected Docusign Notary to perform RONs;
iv. Upon becoming aware that your commission to perform RONs has been revoked, denied, suspended or expired, you will immediately notify Docusign and your Employer and agree to the suspension of your ability to perform RONs on Docusign Notary during any period that your commission is revoked, denied, suspended or expired, or that you are in breach of these Service Terms;
v. You have provided to the state commissioning agency, if required by Notarial Law, a visual rendering of your configured electronic signature and System-generated notarial seal intended for use on Docusign Notary, and you confirm that your electronic signature and notarial seal fully comply with the requirements of Notarial Law;
vi. You have sufficient information and training to successfully use Docusign Notary to conduct RON Sessions, to verify the identities of Signers, and to create, store and maintain the Journal and Recordings, in full compliance with Notarial Law;
vii. Any digital certificate supplied or obtained by you and provided for use on Docusign Notary is current, valid and has not been revoked or suspended by the issuing certification authority, and conforms to the X.509 certificate standard, and you assume the full cost of obtaining and maintaining such digital certificate;
viii. You are solely responsible to ensure that your Journal includes all information and data required by Notarial Law for each Session conducted by you on Docusign Notary;
ix. You are solely responsible to ensure that the Recording of a RON Session includes all actions, statements and declarations required to be made or taken by you or any Signer under Notarial Law;
x. Unless otherwise required under Notarial Law, you are solely responsible to respond to requests for access to any, and distribute copies, of the Recordings or Journal entries as permitted or required under Notarial Law, and you will not allow access to the Journal or any Recordings by any third party except as permitted by Notarial Law;
xi. You are solely responsible to create and maintain a backup of the Journal and all Recordings if such backup is required by Notarial Law;
xii. You will promptly notify Docusign and provide to Docusign an alternative email address if your relationship with your Employer is terminated for any reason;
xiii. You will promptly export the Journal and all Recordings upon any termination, expiration or revocation of your authorization to use Docusign Notary as granted by your Employer;
xiv. You consent to your Employer being provided with read-only access to the Journal, and with view-only access to the Recordings, at all times during the Term, and you expressly consent to Docusign providing your Employer with a read-only copy of the Journal and Recordings upon your Employer’s request;
xv. You are responsible for scheduling all Sessions with Signers and any Participants and conducting such Sessions timely and in accordance with Notarial Law;
xvi. By participating as a Notary in a notarial Session on Docusign Notary, you consent to the participation in the Session by all participants shown in the audio-video feeds displayed on Docusign Notary, including the Signers and Participants; and
xvii. You are solely responsible to ensure that the notarial act you are requested to perform on Docusign RON is permitted to be performed as RON under Notarial Law, and that the eDocument or Transaction you are requested to notarize on Docusign RON is permitted to be notarized using RON under Notarial Law.
If, for any reason, you do not believe that you can perform a RON notarial act for any Signer or with respect to any eDocument or Transaction in accordance with Notarial Law, it is your obligation to terminate the Session using functionality available in Docusign Notary.
5. SIGNER AND PARTICIPANT RESPONSIBILITIES
a. Outside the United States. If you are a Signer and are physically located outside the United States at the time of signing an eDocument in a Session, you warrant that:
i. You have informed the Notary conducting your Session of your physical location and that such location is outside the United States;
ii. It is not illegal or prohibited in the jurisdiction where you are physically located for you and the Notary to perform the requested notarial act or sign the eDocument; and
iii. The eDocument or Transaction is to be filed with, or pertains to a matter before, a court, governmental entity, public official, or other entity located in the territorial jurisdiction of the United States or involves property located in the territorial jurisdiction of the United States or the Transaction is substantially connected with the United States.
b. Identity Verification. If you are a Signer or Participant participating in a Session, you may be asked to verify your identity and identification credential before being able to proceed with the Transaction. Identity verification may include knowledge-based authentication (“KBA”) and analysis of your identification credential. Docusign uses Service Providers to provide such services. Docusign is not liable nor responsible for the information or processes used by Service Providers to verify your identity or identification credential. The Service Providers may use or rely on information that is inaccurate, out-of-date, or have errors that may lead to incorrect results. By proceeding with identity verification or credential analysis, you acknowledge and agree that Docusign is not accountable, liable, or responsible in any way if the results are inaccurate, including (i) if you are prevented from proceeding with the Transaction because the Service Provider could not verify your identity or identification credential and (ii) if the Service Provider incorrectly verifies another Signer’s or Participant’s identity or identification credential and allows them to proceed with the Transaction.
c. Contacts. If you are a Signer or a Participant, you consent to allow Docusign or Docusign’s Service Providers to contact you regarding any Session in which you participated or any Transaction conducted in one or more Sessions, or for reasons otherwise relating to your use of Docusign Notary, at any email address you provide or at any telephone number you provide (including any mobile number, or any number that is converted into a mobile number) using an autodialer and/or an artificial voice call. While you may revoke your consent for us or our Service Providers to call you using an autodialer and/or an artificial voice call, you may not revoke your consent for us or our Service Providers to email you or to call you via any telephone that does not constitute an “automatic telephone dialing system” under the Telephone Consumer Protection Act.
d. Session Participation. You agree that, in addition to the Notary, other parties, such as other Signers or other Participants, may participate in the Session. You may cancel or close the Session if you do not want to continue or you believe that any other person is not allowed to participate. By participating as a Notary, Signer or Participant in a notarial Session on Docusign Notary, you acknowledge and agree that you consent to the participation in the Session by all participants shown in the audio-video feeds displayed on Docusign Notary, including the Notary and other Signers and Participants, and you desire the notarial act to be performed by the Notary conducting the Session and under the Notarial Law of the Notary’s state, jurisdiction or territory of commission.
6. CONSENT FOR RECORDING – Notaries, Signers and Participants
a. Consent to Record. You acknowledge that Docusign Notary includes audio-video communication and, by accepting these Service Terms, you provide your express consent to allow the System to record every RON Session in which you participate and to allow Docusign, on behalf of the Notary, to store the Recording for at least the period required by Notarial Law. Your consent extends to anyone else who is not a Signer, Notary or Participant, but who may appear with you on your audio-video feed during the Session. You are responsible for ensuring that no person participates in, or can be seen in, your Session audio-video feed who you do not authorize or for whom you cannot provide consent. We will store the Recording in electronic format.
b. Consent to Use and Disclosure of Recording. You further consent, on your behalf and on behalf of anyone displayed in your audio-video feed at any time during the Session, to the use and disclosure of the Session Recording for the following purposes: (i) to copy, reproduce, store, distribute, publish, retain, export, adapt, edit, and translate the Recording to operate the System and provide Docusign Notary; (ii) to perform a notarial act for a Session or for a Transaction; (iii) to provide access to or share the Recording with the Customer and the Authorized User who requested the Transaction, other parties to the Transaction, the Notary, the Notary’s Employer, other Signers to the Transaction, or Participants to the Session; (iv) to allow the Notary or Docusign to meet any Journal, Session Recording or recordkeeping requirements dictated by Notarial Law; (v) to comply with a law enforcement or a regulatory agency request, provided such request is lawful and authorized pursuant to a judicial or administrative order or subpoena, or otherwise permitted by law; (vi) to the extent reasonably required for the performance of Docusign’s obligations and the exercise of Docusign’s rights under these Service Terms or Notarial Law; (vii) to the Secretary of State, Department of State, or other state agency that regulates Notaries as requested by such agency; and (viii) to third parties solely for purposes of performing, effectuating, servicing, administering, processing, enforcing or otherwise managing the Transaction; as well as use and disclosure of the Recording by or to (ix) the “qualified custodian” of any eDocument consisting of an electronic will notarized on Docusign Notary; (x) any person accepting a power of attorney notarized as an eDocument on Docusign Notary; and (xi) the title agent, settlement agent, and title insurer related to any real estate Transaction notarized on Docusign RON. The Recording may be viewed by other authorized parties, including any state regulator of Notaries.
c. To the extent that any information recorded is considered personal data, Docusign will process such data in accordance with the Docusign Privacy Notice (https://www.docusign.com/company/privacy-policy).
7. JOURNAL AND RECORDING ACCESS AND STORAGE
a. Designation of Docusign for Storage. As Notary, you hereby designate Docusign to store on Docusign Notary the Journal and all Recordings for Sessions conducted by you during the Term. You further consent to your Employer, after any termination of your employment or engagement, being provided with a copy of such Journal and Recordings. Docusign does not serve as legal custodian for the Journal or the Recordings in providing storage services and assumes no fiduciary duties to you or to your Employer under these Service Terms.
b. Designation of Custodian. As Notary, you will promptly notify Docusign if you designate a custodian for the Journal or the Recordings and provide a copy of such designation in writing. If required by Notarial Law, you agree that you have informed the state commissioning agency of your appointment of a custodian. If you designate your Employer as custodian, your Employer will have read-only access to the Journal and Recordings from receipt by Docusign of the designation notice, and you agree that your Employer, if permitted to release copies of any Journal entry or Recording in your written designation, will be authorized to do so on Docusign Notary. Additionally, upon any termination of your employment or revocation of your access to Docusign Notary, you agree that your Employer, as custodian, may maintain the Journal and Recordings on Docusign Notary to the extent permitted by Notarial Law. If Docusign is required by Notarial Law to store the Journal or the Recordings and Docusign designates a custodian to provide such storage on its behalf, Docusign will notify the Notary of such designation.
c. Consent to Storage. As Signer or Participant, you acknowledge that the Recordings are being stored by Docusign on behalf of Notary (or a designated custodian of Notary) on Docusign Notary for the Term. You expressly consent to such storage.
d. Access and Effect of Termination. Upon the first to occur of: (i) any termination of these Service Terms, (ii) any termination of Notary’s employment or engagement with your Employer; or (iii) any revocation, expiration, denial or suspension of Notary’s notarial commission to perform RONs, your access to the Journal and Recordings on Docusign Notary will be suspended and Docusign shall make available to Notary a link to download their Journal and Recordings, each in a commercially reasonable industry standard format. The link shall be available for thirty (30) days following termination of these Service Terms. Docusign will use commercially reasonable efforts to provide Notary with access during the Term to the Journal and Recordings through Notary’s user profile, and shall not suspend such access unless Docusign provides to Notary the link to download the Journal and Recordings as described in this section. Notwithstanding the above, to the extent Docusign is required by Notarial Law or other applicable law to maintain the Journal or the Recordings after any such expiration or termination of the Term, Docusign shall maintain the Journal or the Recordings for the period required by Notarial Law or other applicable law and shall provide copies of or access to such Journal or Recordings by request to the extent required by Notarial Law or other applicable law. Except as expressly provided in these Service Terms, Docusign shall not be required to maintain any Journal entries or Recordings of a Notary beyond termination of these Service Terms.
8. DATA AND PERSONAL INFORMATION
a. Scope of User Data. User Data includes the results of credential analysis and any other processes authorized by Notarial Law to validate your identity, and all information required for the Journal, as well as any other information that may be required to be included on the Recording by Notarial Law.
b. Authorization Governing User Data. Notary, Participants and Signers each authorize Docusign to use and disclose User Data of such Notary or Signer, as applicable, and such authorization includes a nonexclusive license for Docusign to use and disclose User Data for the purposes of providing Docusign Notary, such as (i) to copy, reproduce, store, distribute, publish, retain, export, adapt, edit, and translate User Data to operate the System and provide Docusign Notary; (ii) to provide User Data to Service Providers as part of Docusign Notary generally, to perform a Session or for a Transaction, including to verify your identity using Service Provider and/or your credential (e.g., driver’s license) using a Service Provider; (iii) to provide access to or share such information with other parties to the Transaction or participants to the Session; (iv) to allow the Notary and/or Docusign, as applicable, to meet any Journal, Session Recording or recordkeeping requirements dictated by Notarial Law, including to create and maintain the Journal and Recordings, and to use and disclose the Journal and Recordings as permitted by Notarial Law; (v) to comply with a law enforcement or a regulatory agency request, provided such request is lawful and authorized pursuant to a judicial or administrative order, subpoena, or otherwise permitted by law; (vi) to the extent reasonably required for the performance of Docusign’s obligations and the exercise of Docusign’s rights under these Service Terms; (vii) to comply with requests from the Secretary of State, Department of State, or other state agency that regulates Notaries; and (viii) to disclose such information to the Customer having invited you to join the Session and other third parties solely for purposes of performing, effectuating, servicing or otherwise managing the Transaction.
c. Limitations on User Data.
i. Notary. As Notary, you agree that, except upon the written consent of the Signer or Participant to which the User Data relates, you shall not sell, offer for sale, use, or transfer to another person User Data for any purpose other than: (a) as required to perform the notarial act and to meet the requirements of Notarial Law; (b) as necessary to effect, administer, enforce, service, or process the transaction for which the personally identifiable information was provided; or (c) in response to a court order, subpoena, or other legal process compelling disclosure.
ii. Docusign. With respect to RON notarial acts performed under Notarial Law of Colorado, Docusign shall not use, sell, or offer to sell to another person or transfer to another person for use or sale any User Data that identifies a Signer, a Participant, a Notary or a person named in an eDocument presented for RON, except:
1. as necessary to facilitate performance of a RON notarial act;
2. to effect, administer, enforce, service, or process an eDocument provided by or on behalf of the individual or the Transaction of which the eDocument is a part;
3. in accordance with other applicable federal, state, or local law, or to comply with a lawful subpoena or court order; or
4. in connection with a proposed or actual sale, merger, transfer, or exchange of all or a portion of a business or operating unit of Docusign, if the User Data concerns only Signers, Participants, Notaries or other individuals involved in RON Transactions of Customers of the business or unit and the transferee agrees to comply with the restrictions set forth in this Section.
Further information on how Docusign processes personal data may be found in the Docusign Privacy Notice(https://www.docusign.com/company/privacy-policy).
iii. Scope. The limited exceptions in Sections 8(c)(i) and (ii) above do not include or authorize the use of User Data for the purpose of generating additional business or marketing opportunities by or for the Notary, the Notary’s Employer or any business for whom the Notary may be providing contracted services, or Docusign or any of its Affiliates. Such use of User Data is prohibited and cannot be waived by consent.
9. DISCLAIMER. In addition to and without limiting the disclaimers in the Terms, Docusign does not represent or warrant, and expressly disclaims, that (i) any Notary will agree to perform RON for any specific Transaction or, if agreed, will successfully complete a RON Session; (ii) any Signer will proceed with the Transaction electronically; (iii) any third party will accept eDocuments notarized or electronically signed through Docusign Notary; and (iv) any court, regulator, or other competent authority will recognize eDocuments notarized or electronically signed through Docusign Notary as valid or enforceable. Docusign does not represent or warrant that Docusign Notary meets the requirements of Notarial Law with respect to any particular state, jurisdiction or territory. Except as otherwise provided in these Service Terms, Notary agrees to hold Docusign harmless from any claims asserted against or liabilities imposed upon it because of its failure to comply with the Notarial Law.
10. SPECIFIC CAP ON DAMAGES. NOTWITHSTANDING SECTION 9.2 OF THE TERMS, OUR TOTAL LIABILITY TO YOU FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO DOCUSIGN SERVICES PROVIDED UNDER THIS SCHEDULE 4 (INCLUDING WITHOUT LIMITATION WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO DOCUSIGN FOR THE DOCUSIGN SERVICE(S) GIVING RISE TO THE CLAIM UNDER THIS SCHEDULE 4 DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY, OR $100, WHICHEVER IS GREATER.
11. APPLICABLE LAW
You expressly acknowledge and agree that Notaries perform RONs using Docusign Notary pursuant to the applicable Notarial Law of their jurisdiction of commission, and solely under the authority of such Notarial Laws, regardless of the geographical location of the Customer or any Signer or Participant.
Each Notary, Signer and Participant agrees that any question, conflict, requirement, or interpretation related to RON will be governed by and subject to the Notarial Law of the jurisdiction in which the Notary is commissioned, without giving effect to any choice or conflict of law provision or rule.
While accessing or using Docusign Notary, you may receive information from us concerning the Docusign Services, such as information on electronic signatures, RONs, and other subject matter areas. Docusign provides you this information for general informational purposes only. This information does not constitute legal advice. If you believe that you need legal advice before using Docusign Notary, or before executing a Transaction on Docusign Notary, you are solely responsible for obtaining such advice from an attorney licensed to practice law in your jurisdiction.
12. EFFECT OF TERMINATION. All representations and warranties made by you herein, and the rights and obligations of the parties set forth in Sections 4(a)(x), 4(a)(xii), 5(c), 5(d) and 6 through 10 of these Service Terms, shall survive expiration or termination of these Service Terms.