DOCUSIGN MASTER SERVICES AGREEMENT FOR PUBLIC SECTOR RESALE CUSTOMERS
This Docusign Master Services Agreement for Public Sector Resale Customers (“MSA”) is made between Docusign, Inc., a Delaware corporation (“Docusign”), and the customer identified on the Order Form or SOW (“Customer”), together referred to as the “Parties” and each individually as a “Party”, as of the date of last signature below (the “MSA Effective Date”). The Parties hereby agree to the terms and conditions of this MSA, including any specific services terms, product details and any applicable license and/or subscription terms will be set forth in applicable Docusign Service Schedule(s) and Attachments (located at https://www.docusign.com/legal/terms-and-conditions/msa-service-schedules), Order Form(s) and SOW, each of which become binding on the Parties and are incorporated into this MSA upon the provisioning of any Docusign Services (defined below) to Customer. All Docusign Services provisioned to Customer are governed by and incorporate the following documents in effect as of the date of the last update of such documents, collectively referred to as the “Agreement”:
the Order Form and/or Statement of Work;
any attachments, addenda, and/or appendix(ices) to this MSA or a Service Schedule;
Service Schedule(s); and
this MSA.
The applicable attachment(s), addenda, appendix(ices), and Service Schedule(s) are determined by the Docusign Service(s) provisioned to Customer. In the event of a conflict, the order of precedence is as set out above in descending order of control. This offer by Docusign is expressly conditioned on assent to the terms and conditions of this Agreement, and any different or additional terms or conditions specified by Customer at any time in purchase orders or other documentation are hereby rejected.
Public Sector Resale Customers MSA Version: November 29, 2022
TABLE OF CONTENTS
Definitions
Usage and Access Rights
Ownership
Security and Customer Data
Purchase Agreement
Reserved
Term and Termination
Warranties and Disclaimers
Third-Party Claims
Limitation of Liability
Confidentiality
Governing Law, Venue and Claims
General
1. DEFINITIONS
“Account” means a unique account established by Customer to enable its Authorized Users to access and use a Docusign Service.
“Account Administrator” is an Authorized User who is assigned and expressly authorized by Customer as its agent to manage Customer’s Account, including, without limitation, to configure administration settings, assign access and use authorizations, request different or additional services, provide usage and performance reports, manage templates, execute approved campaigns and events, assist in third-party product integrations, and to receive privacy disclosures. Customer may appoint an employee or a third-party business partner or contractor to act as its Account Administrator and may change its designation at any time through its Account.
“Affiliate” means any Docusign entity that Docusign directly or indirectly owns or controls more than fifty percent (50%) of the voting interests of the subject entity. Any legal entity will be considered a Docusign Affiliate as long as that interest is maintained.
“Authorized User” means one individual natural person, whether an employee, business partner, contractor, or agent of Customer who is registered by Customer in Customer’s Account to use the Docusign Services. An Authorized User must be identified by a unique email address and user name, and two or more 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 obligations with Customer at least as restrictive as those in this Agreement and is accessing or using the Docusign Services solely to support Customer’s internal business purposes. For clarification, "internal business purposes" includes the sending of eDocuments to third party recipients for purposes of supporting Customer's business activities, including the sending of eDocuments to Customer’s suppliers and customers for review and signature.
“Confidential Information” means: (a) for Docusign and its Affiliates, the Docusign Services, Documentation and other related technical information, security policies and processes, product roadmaps and pricing (to the extent allowable under applicable law); (b) for Customer, Customer Data; (c) any other information of a Party (or for Docusign, its Affiliates) that is disclosed in writing or orally and is designated as confidential or proprietary at the time of disclosure to the Party receiving Confidential Information (“Recipient”) (and, in the case of oral disclosures, summarized in writing and delivered to the Recipient within thirty (30) days of the initial disclosure), or that due to the nature of the information the Recipient should reasonably understand it to be confidential information of the disclosing Party; and (d) to the extent allowable by applicable law, the terms and conditions of this Agreement between the Parties. Confidential Information does not include any information that: (i) was or becomes generally known to the public through no fault or breach of this Agreement by the Recipient; (ii) was rightfully in the Recipient’s possession at the time of disclosure without restriction on use or disclosure; (iii) was independently developed by the Recipient without use of or reference to the disclosing Party's Confidential Information; or (iv) was rightfully obtained by the Recipient from a third party not under a duty of confidentiality and without restriction on use or disclosure.
“Customer” means the entity that has contracted with the Reseller for the purchase of applicable Docusign Services. Any Customer that is not a Public Sector Resale Customer will be subject to terms included in Docusign’s standard Master Services Agreement for Resell Customers, which is available at: https://www.docusign.com/company/terms-and-conditions/reseller.
“Customer Data” means any content, eDocuments, materials, data and information that Customer or its Authorized Users enter into the Docusign Services, including, but not limited to, any Customer personal data and information contained in eDocuments. Customer Data does not include any component of the Docusign Services or material provided by or on behalf of Docusign.
“DFARS” means the Defense Federal Acquisition Regulation Supplement as set forth in Chapter 2 of Title 48 of the Code of Federal Regulations, 48 CFR 2.
“Documentation” means Docusign's then-current technical and functional documentation for the Docusign Services as made generally available by Docusign.
“Docusign Service(s)” means the services provided by Docusign under an Order Form or SOW, and may include Professional Services, software, source code, or other technology licensed to Docusign from third parties and embedded into the services that Docusign provides to Customer. Notwithstanding the foregoing, Docusign Services do not include Third-Party Services (defined below).
“DoD” means the United States Department of Defense.
“eDocument” refers to a contract, notice, disclosure, or other record or document generated using or deposited into the Docusign Service for processing.
“FAR” means the Federal Acquisition Regulation as set forth in Chapter 1 of Title 48 of the Code of Federal Regulations, 48 CFR 1.
“Order Form” means the paper or online order form between Docusign and Reseller that sets forth the Docusign Services selected by Customer.
“Order End Date” means the end date for provision of a respective Docusign Service specified in a corresponding Order Form or SOW.
“Order Start Date” means the start date for provision of a respective Docusign Service specified in a corresponding Order Form or SOW.
“Professional Services” means any integration, consulting, architecture, training, transition, configuration, administration, and similar ancillary Docusign Services that are set forth in an Order Form or Statement of Work (“SOW”) between Docusign and Reseller.
“Public Sector Resale Customers” are Customers authorized to use Docusign Services pursuant to an Order Form and/or SOW and the Agreement and are: (i) a United States Federal agency or department (as well as any eligible ordering activity purchasing through a Federal Supply Schedule Contract, as defined in GSA Order OGP 4800.2I (or its successor), state or local government or agency thereof, or (ii) a United States public school (including both K-12 and university institutions), but only to the extent the Docusign Services are being used in an Authorized User’s official capacity as a Federal, state, local government, or school official or employee (“Official Use”). Customers who are not bona fide Public Sector Resale Customers are not eligible to use Docusign Services according to the terms of this MSA, but, instead, will be subject to terms included in Docusign’s standard Master Services Agreement for Resell Customers, which is available at: https://www.docusign.com/company/terms-and-conditions/reseller.
“Purchase Agreement” means any agreement between Customer and Reseller relating to Customer’s purchase of Docusign Services from that Reseller.
“Reseller” means an entity that has contracted with Docusign or one of Docusign’s authorized distributors to resell Docusign Services and with which Customer has contracted directly to purchase applicable Docusign Services.
“Service Schedule” means the service-specific terms and conditions applicable to a particular Docusign Service(s) provisioned to Customer.
“System” means 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 Services via the Internet.
"Third-Party Services" means services, software, products, applications, integrations and other features or offerings that are provided by Customer or obtained by Customer from a third party.
2. USAGE AND ACCESS RIGHTS
2.1 Right to Use. Docusign will provide the Docusign Services to Customer as set forth in the Order Form and/or SOW. Subject to the terms and conditions of the Agreement, Docusign grants to Customer a worldwide, limited, non-exclusive, non-transferable right and license during the Term, solely for its Official Use by Authorized Users for Customer’s internal business purposes, and in accordance with the Documentation, to: (a) access and use the Docusign Services; (b) implement, configure, and through its Account Administrator, permit its Authorized Users to access and use the Docusign Services; and (c) access and use the Documentation. Customer will ensure that its Authorized Users using the Docusign Services under its Account comply with all of Customer’s obligations under the Agreement, and Customer is responsible for their acts and omissions relating to the Agreement as though they were those of Customer.
2.2 Restrictions. Customer shall not, and shall not permit its Authorized Users or others under its control to, do the following with respect to the Docusign Services:
(a) use the Docusign Services, or allow access to it, in a manner that circumvents contractual usage restrictions or that exceeds Customer’s authorized use set forth in this Agreement, including the applicable Order Form or SOW;
(b) license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share or otherwise make any portion of the Docusign Services or Documentation available for access by third parties except as otherwise expressly provided in this Agreement;
(c) 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 its Account or the Docusign Services by a direct competitor of Docusign;
(d) reverse engineer, decompile, disassemble, copy or otherwise attempt to derive source code or other trade secrets from or about any of the Docusign Services or technologies, without Docusign’s written consent;
(e) use the Docusign Services or Documentation in a way that: (i) violates or infringes upon the rights of a third party, including those pertaining to: contract, intellectual property, privacy, or publicity; or (ii) effects or facilitates the storage or transmission of libelous, tortious, or otherwise unlawful material including, but not limited to, material that is harassing, threatening, or obscene;
(f) use the Docusign Services to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs, or circumvent or disclose the user authentication or security of the Docusign Services or any host, network, or account related thereto or use any aspect of the Docusign Services components other than those specifically identified in an Order Form or SOW, even if technically possible; or
(g) use, or allow the use of, the Docusign Services by anyone located in, under the control of, or a resident of a U.S. embargoed country or territory or by a prohibited end user under Export Laws (as defined in Section 13.5).
2.3 Suspension of Access. Docusign may suspend any use of the Docusign Services or remove or disable any Account or content that Docusign reasonably and in good faith believes violates Section 2.2 above, unless Docusign is prohibited from doing so by applicable law or regulation (e.g. FAR 52.233-1 as prescribed by FAR 33.215 or other agency supplemental terms as applicable to Customer). Docusign will use commercially reasonable efforts to notify Customer prior to any such suspension or disablement, unless Docusign reasonably believes that: (a) it is prohibited from doing so under applicable law, regulation 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 notice if and when the related restrictions in the previous sentence no longer apply.
2.4 Third-Party Services. Customer may choose to obtain Third-Party Services from third parties and/or Docusign (for example, through a reseller arrangement or otherwise). Any acquisition by Customer of Third-Party Services is solely between Customer and the applicable Third-Party Service provider and Docusign does not warrant, support, or assume any liability or other obligation with respect to such Third-Party Services, unless expressly provided otherwise in the Order Form or this Agreement. Docusign assumes no responsibility for, and specifically disclaims any liability or obligation with respect to, any Third-Party Services. In the event Customer chooses to integrate or interoperate Third-Party Services with Docusign Services in a manner that requires Docusign or the Docusign Services to exchange Customer Data with such Third-Party Service or Third-Party Service provider, Customer: (a) grants Docusign permission to allow the Third-Party Service and Third-Party Service provider to access Customer Data and information about Customer’s usage of the Third-Party Services as appropriate and necessary to enable the interoperation of that Third-Party Service with the Docusign Services; (b) acknowledges that any exchange of data between Customer and any Third-Party Service is solely between Customer and the Third-Party Service provider and is subject to the Third-Party Service provider’s terms and conditions governing the use and provision of such Third-Party Service (the presentation and manner of acceptance of which is controlled solely by the Third-Party Service provider); and (c) agrees that Docusign is not responsible for any disclosure, modification or deletion of Customer Data resulting from access to such data by Third-Party Services and Third-Party Service providers.
3. OWNERSHIP
3.1 Customer Data. Customer Data processed using the Docusign Services is and will remain, as between Customer and Docusign, owned by Customer. Customer hereby grants Docusign the right to process, transmit, store and/or disclose Customer Data in order to provide the Docusign Services to Customer, solely in accordance with the terms of the Agreement and subject to the terms of Section 11.2 (Required Disclosure) below, to comply with any request of a governmental or regulatory body (including subpoenas or court orders) or as otherwise required by applicable law or regulation.
3.2 Docusign Services. 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 Docusign Services and Documentation, any improvements, design contributions, or derivative works thereto, and any knowledge or processes related thereto (including any machine learning algorithms output from the Docusign Services) and/or provided hereunder.
3.3 Professional Services. Unless otherwise specified in the applicable SOW, all deliverables provided by or for Docusign in the performance of Professional Services, excluding Customer Data and Customer Confidential Information, are owned by Docusign and constitute part of the Docusign Service(s) under the Agreement. Professional Service(s) under the Agreement. Effective only as of final payment by Customer to Docusign of all amounts required by an Order Form or SOW, and subject to the terms and conditions of the Agreement, Docusign grants to Customer a nonexclusive, for the duration of legal protection, worldwide, royalty-free license to use deliverables created for Customer during performance of Professional Services (“Work Product”) provided to Customer under the Order Form or SOW, solely for purposes of Customer’s internal business operations only. This license includes permission to make copies of the provided Work Product for such internal use but not permission to distribute the Work Product or any copies of them.
3.4 Feedback. Docusign encourages Customer to provide suggestions, proposals, ideas, recommendations, or other feedback regarding improvements to Docusign Services and related resources (“Feedback”). To the extent Customer provides Feedback, Customer grants to Docusign and its Affiliates a royalty-free, fully paid, sub-licensable, transferable (notwithstanding Section 13.2 (Assignability)), non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import, and otherwise exploit Feedback (including by incorporation of such feedback into the Docusign Services) without restriction provided that: such Feedback does not identify Customer, or Authorized Users, or include any Customer Data without Customer’s prior written consent.
4. SECURITY AND CUSTOMER DATA
4.1 Security. Docusign will use commercially reasonable industry standard security technologies in providing the Docusign Services. Docusign has implemented and will maintain appropriate technical and organizational measures, including information security policies and safeguards, designed to preserve the security, integrity, and confidentiality of Customer Data and Customer personal data and to protect against unauthorized or unlawful disclosure or corruption of or access to such data in accordance with the Security Attachment for Docusign Services found at: https://www.docusign.com/company/terms-and-conditions/security-attachment-docusign-services. Additional or differing security obligations, if any, will be expressly set forth in the applicable Service Schedule, Order Form, or separate written agreement between the Parties.
4.2 Customer Data. Customer is responsible for Customer Data (including Customer personal data) as entered into, supplied or used by Customer and its Authorized Users in the Docusign Services. Further, Customer is solely responsible for determining the suitability of the Docusign Services for Customer's business and complying with any applicable data privacy and protection regulations, laws or conventions applicable to Customer Data and Customer’s use of the Docusign Services. Customer grants to Docusign the non-exclusive right to process Customer Data (including personal data) in accordance with the Data Protection Attachment for Docusign Services found at: https://www.docusign.com/company/terms-and-conditions/data-protection-attachment, for the sole purpose of and only to the extent necessary for Docusign: (a) to provide the Docusign Services; (b) to verify Customer’s compliance with the restrictions set forth in Section 2.2 (Restrictions) if Docusign has a reasonable belief of Customer’s non-compliance; and (c) as otherwise set forth in the Agreement.
4.3 Usage Data. Customer agrees that Docusign may collect and use quantitative data, derived from the use of the Docusign Services ("Usage Data") for business purposes, including industry analysis, benchmarking, analytics, marketing, and other business purposes. Before doing so, Docusign will deidentify and anonymize all Usage Data in such manner that does not allow for identification of Customer Data or Customer’s Confidential Information and will disclose such Usage Data in aggregate form only.
5. PURCHASE AGREEMENT.
Customer will comply with the terms of the Purchase Agreement. Customer acknowledges that compliance with the terms of the Purchase Agreement is a material condition under this Agreement, and if Reseller notifies Docusign that Customer is in breach of such Purchase Agreement, Docusign may consider the Customer to be in breach of this Agreement.
6. RESERVED
7. TERM AND TERMINATION
7.1 Term. The term of an Order Form or SOW and any associated Service Schedule(s) is the period of time that begins on the Order Start Date and, unless terminated sooner as provided herein, will continue until the Order End Date, both dates as specified on the Order Form or SOW (the “Term”). In the case of a SOW for Professional Services, if no end date is specified in the SOW, then the SOW shall expire upon completion of Professional Services or early termination as permitted by the Agreement. The term of this MSA and this Agreement shall continue as long as an Order Form or SOW referencing or incorporated into this MSA remains valid and in effect or Docusign Services are provisioned to Customer. Termination or expiration of any Order Form or SOW shall leave other Order Forms or SOWs unaffected.
7.2 Termination for Breach. If either Party commits a material breach or default in the performance of any of its obligations under the Agreement, then except as prohibited by applicable law or regulation, the other Party may terminate the Agreement in its entirety by giving the defaulting Party written notice of termination, unless the material breach or default in performance is cured within thirty (30) days after the defaulting Party receives notice thereof. If Customer terminates the Agreement for Docusign's breach, pursuant to this Section 7.2, that is incapable of cure, Docusign will provide a prorated refund to Customer for any prepaid fees received by Docusign under the Agreement that correspond to the unused portion of the Term.
7.3 Post-Termination Obligations. If this Agreement expires or is terminated for any reason: (a) except as prohibited by applicable law or regulation, Customer will pay any amounts owed by Customer that have accrued before, and remain unpaid as of, the effective date of the expiration or termination; (b) any and all liabilities that have accrued before the effective date of the expiration or termination will survive; (c) licenses and use rights granted to Customer with respect to Docusign Services and intellectual property will immediately terminate; (d) Docusign’s obligation to provide any further Docusign Services to Customer under the Agreement will immediately terminate, except any such Docusign Services that are expressly to be provided following the expiration or termination of this Agreement; and (e) the Parties’ rights and obligations under Sections 4.3, 7.1, 7.3, 7.4, 8.4 and 9 through 13 will survive. Except as otherwise expressly set forth herein and unless prohibited by applicable law or regulation, no termination for any reason shall entitle Customer or Reseller to a refund of any portion of the fees paid and any fees or charges incurred through the effective date of termination which shall become immediately due and payable.
7.4 Retrieval of Customer Data and Transition Services. During the Term, Customer may extract Customer Data from the Docusign Services as described in the Documentation and the applicable Service Schedule. If, upon termination or expiration of the Agreement, Customer has failed to retrieve its Customer Data and/or if Customer otherwise requires further support from Docusign in relation to such termination or expiration, Customer may request and Docusign will provide: (a) assistance in retrieving Customer Data and completed eDocuments still remaining in the Docusign Services, and/or (b) other reasonable transition assistance, the details of which will be set forth in a mutually agreed upon Statement of Work between the Parties at Docusign's then-current rates for such services.
8. WARRANTIES AND DISCLAIMERS
8.1 Docusign Service Warranties. Docusign warrants that during the applicable Term, (a) the Docusign Services, when used as authorized under this Agreement, will perform substantially in conformance with the Documentation associated with the applicable Docusign Services; (b) Docusign will use commercially reasonable efforts to ensure that the Docusign Services do not introduce files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses into Customer's system; and (c) the operation of its business as it relates to the Docusign Services will comply with all applicable laws and regulations. Customer’s sole and exclusive remedy for any breach of the warranties in 8.1(a) and (b) above by Docusign is for Docusign to repair or replace the affected Docusign Services to make them conform, or, if Docusign determines that the foregoing remedy is not commercially reasonable, then either Party may terminate this Agreement and, in such event, Docusign will provide a prorated refund to Customer for any prepaid fees received by Docusign under the Agreement that correspond to nonconforming Docusign Services and the unused portion of the Term.
8.2 Docusign Professional Services Warranties. If Customer has purchased Professional Services in an Order Form and/or SOW, Docusign warrants to Customer that the Professional Services will be performed in a competent and workmanlike manner. Customer’s exclusive remedy for breach of this warranty is to notify Docusign in writing within thirty (30) days of the non-conforming Professional Services. Upon receipt of such notice, Docusign will use commercially reasonable efforts to re-perform the Professional Services in conformance with these warranty requirements. This Section 8.2 (Docusign Professional Services Warranties) sets forth Customer’s exclusive rights and remedies and Docusign’s sole liability in connection with the warranty related to the performance of the Professional Services.
8.3 Mutual Warranties. Each Party represents and warrants that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against it in accordance with the terms of this Agreement; (b) no authorization or approval from any third party is required in connection with its execution, delivery or performance of the Agreement; and (c) it is duly organized and validly existing under the laws of the state of its incorporation or formation and has full power and authority to enter into the Agreement and to carry out the provisions hereto.
8.4 DISCLAIMER. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THE AGREEMENT: (A) NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED IN FACT OR BY OPERATION OF LAW, OR STATUTORY, AS TO ANY MATTER WHATSOEVER; AND (B) EACH PARTY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE.
9. THIRD-PARTY CLAIMS
9.1 By Docusign. Docusign will defend and, in accordance with Section 9.2 (Procedures), indemnify Customer (including Customer’s employees, directors, agents and representatives) from and against, any: (a) third-party claim; (b) third-party legal action; or (c) administrative agency action or proceeding (each, a “Claim”) to the extent arising from: (i) any actual breach by Docusign of its confidentiality obligations in the Agreement; and (ii) any alleged infringement of any third-party intellectual property right occurring from Customer’s use of the Docusign Services as authorized under the Agreement. Notwithstanding the foregoing, Docusign will not be responsible for any Claim due to Customer’s or its Authorized User’s combination of Docusign Services with goods or services provided by third parties, including any Third-Party Services; adherence to specifications, designs, or instructions furnished by Customer; or Customer’s modification of the Docusign Services not described in the Documentation or otherwise expressly authorized by Docusign in writing.
9.2 Procedures. Except as prohibited by applicable law or regulation, indemnification is expressly conditioned on: (a) the Customer providing prompt written notice of the claim for which indemnification is sought hereunder (the “Claim”), and (b) Docusign being given a full and complete opportunity to control the defense and settlement of the Claim (or to meaningfully participate in such defense/settlement where control is expressly prohibited by applicable law). Customer or Customer’s authorized settlement authority (as applicable) shall not, without Docusign’s prior written consent, agree to any settlement on behalf of Docusign which includes either the obligation to pay any amounts, or any admissions of liability, whether civil or criminal, on the part of Docusign. Notwithstanding anything herein to the contrary, and, except as prohibited by applicable law or regulation, Docusign will not be responsible for any Claim due to Customer’s or its Authorized User’s combination of Docusign Services with goods or services provided by third parties, including any Third-Party Services; adherence to specifications, designs, or instructions furnished by Customer; or Customer’s modification of the Docusign Services not described in the Documentation or otherwise expressly authorized by Docusign in writing.
9.3 Infringement Remedy. If Customer is enjoined or otherwise prohibited from using any of the Docusign Services or a portion thereof based on a Claim covered by Docusign’s indemnification obligations under Section 9.1 above, then Docusign will, at its sole expense and option, except as prohibited by applicable law or regulation, either: (a) obtain for Customer the right to use the affected portions of the Docusign Services; (b) modify the allegedly infringing portions of the Docusign Services so as to avoid the Claim without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Docusign Services with items of substantially similar functionality so as to avoid the Claim. If Docusign determines that the foregoing remedies are not commercially reasonable and notifies Customer of such determination, then either Party may terminate the Agreement, and in such case, Docusign will provide a prorated refund to Customer for any prepaid fees for the infringing Docusign Services received by Docusign under the Agreement that correspond to the unused portion of the Term. Except as prohibited by applicable law or regulation, the remedies set out in this Section 9.2 (Infringement Remedy) are Customer’s sole and exclusive remedies for any actual or alleged infringement by the Docusign Services of any third-party intellectual property right.
10. LIMITATION OF LIABILITY
10.1 Exclusion of Damages. EXCEPT FOR THE PARTIES’ EXPRESS OBLIGATIONS UNDER SECTION 9 (THIRD-PARTY CLAIMS), UNDER NO CIRCUMSTANCES, AND REGARDLESS OF THE NATURE OF THE CLAIM, SHALL EITHER PARTY (OR THEIR RESPECTIVE AFFILIATES) BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, COVER, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES.
10.2 Limitation of Liability. EXCEPT FOR: (A) EITHER PARTY’S EXPRESS OBLIGATIONS UNDER SECTION 9 (THIRD-PARTY CLAIMS); (B) EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THE AGREEMENT (C) DAMAGES RESULTING FROM DEATH OR BODILY INJURY, OR PHYSICAL DAMAGE TO TANGIBLE REAL OR PERSONAL PROPERTY, CAUSED BY EITHER PARTY’S NEGLIGENCE; (D) DAMAGES RESULTING FROM EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; AND (E) DOCUSIGN’S RIGHT TO COLLECT UNPAID FEES DUE HEREUNDER, TO THE EXTENT PERMITTED BY LAW, THE TOTAL, CUMULATIVE LIABILITY OF EACH PARTY (AND THEIR RESPECTIVE AFFILIATES) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE(S) PROVIDED HEREUNDER WILL BE LIMITED TO THE AMOUNTS PAID BY CUSTOMER TO RESELLER FOR THE DOCUSIGN SERVICE(S) DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATION WILL APPLY WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR ANY OTHER LEGAL OR EQUITABLE THEORY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS CUMULATIVE LIMIT.
10.3 Independent Allocations of Risk. Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages represents an agreed allocation of the risks of the Agreement between the Parties. This allocation is reflected in the pricing offered by Docusign and is an essential element of the basis of the bargain between the Parties. Each of these provisions is severable and independent of all other provisions of the Agreement, and each of these provisions will apply even if the warranties in the Agreement have failed of their essential purpose.
11. CONFIDENTIALITY
11.1 Restricted Use and Nondisclosure. During and after the Term, Recipient will to the extent permissible according to applicable law or regulation: (a) use the Confidential Information of the disclosing Party solely for the purpose for which it is provided or for legal, regulatory or compliance purposes as required by applicable law or regulation; (b) not disclose such Confidential Information to a third party, except on a need-to-know basis to its Affiliates (where Recipient is Docusign), 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 it protects its own Confidential Information of a similar nature.
11.2 Required Disclosure. If Recipient is required by applicable law or regulation to disclose Confidential Information of the disclosing Party (such as but not limited to the terms of this Agreement), Recipient will give prompt written notice to the disclosing Party before making the disclosure, unless prohibited from doing so by applicable legal, regulatory (e.g. FAR or DFAR) or administrative process, and cooperate with the disclosing Party to obtain where reasonably available an order protecting the Confidential Information from public disclosure. Notwithstanding the foregoing, Customer may comply with any requirement under the Customer’s applicable U.S. State law (for non-Federal U.S. Customers) with respect to use and disclosure of public records including without limitation any applicable “Freedom of Information” laws. If Customer is required by applicable law to disclose any information that would be considered to be Confidential Information as set forth herein, Customer shall make reasonable efforts to notify Docusign of such disclosure, to limit such disclosure to only that information that is required to be disclosed by applicable law and to cooperate in any effort reasonably made by Docusign to prevent or limit such disclosure.
11.3 Ownership. Recipient acknowledges that, as between the Parties, all Confidential Information it receives from the disclosing Party, including all copies thereof in Recipient’s possession or control, in any media, is proprietary to and exclusively owned by the disclosing Party. Nothing in this Agreement grants Recipient any right, title or interest in or to any of the disclosing Party’s Confidential Information. Recipient’s incorporation of the disclosing Party’s Confidential Information into any of its own materials will not render Confidential Information non-confidential.
11.4 Remedies. Recipient acknowledges that any actual or threatened breach of this Section 10 (Confidentiality) may cause irreparable, non-monetary injury to the disclosing Party, the extent of which may be difficult to ascertain. Accordingly, the disclosing Party may be entitled under applicable law (but not required) to seek injunctive relief in addition to all remedies available to the disclosing Party at law and/or in equity, to prevent or mitigate any breaches of the Agreement or damages that may otherwise result from those breaches. Absent written consent of the disclosing Party to the disclosure, the Recipient, in the case of a breach of this Section 11 (Confidentiality), has the burden of proving that the disclosing Party’s Confidential Information is not, or is no longer, confidential or a trade secret and that the disclosure does not otherwise violate this Section 11 (Confidentiality).
12. GOVERNING LAW, VENUE AND CLAIMS
12.1 Governing Law / Venue
(a) U.S. Federal and State/Local Customers. Notwithstanding anything herein to the contrary, provisions of the Agreement pertaining to governing law and venue such as Section 12.1(b) do not apply to Customer’s Official Use of Docusign Services in Customer’s capacity as a state, local government, U.S. Federal Government agency, or school official or employee to the extent such provisions are prohibited by Customer’s applicable State constitution or laws, or (as applicable) U.S. Federal law.
(b) All other Customers. Except as set forth in Section 12.1(a) (above), this Agreement is governed by the laws of the State of California, U.S.A., without reference to its choice of law rules to the contrary, and, the Parties hereby irrevocably consent to the exclusive jurisdiction of, and venue in, any Federal or state court of competent jurisdiction located in San Francisco County, California, for the purposes of adjudicating any dispute arising out of this Agreement.
(c) Conventions / Equitable Relief. To the extent permitted by applicable law, choice of law rules, the 1980 U.N. Convention on Contracts for the International Sale of Goods, and the Uniform Computer Information Transactions Act as enacted, shall not apply. Notwithstanding the foregoing, and except as prohibited by applicable law or regulation, either Party may at any time seek and obtain appropriate legal or equitable relief in any court of competent jurisdiction for claims regarding such Party’s intellectual property rights.
12.2 English Language. To the extent allowed by law, the English version of this Agreement is binding, and other translations are for convenience only.
12.3 Claims. If the Customer is an “executive agency” of the United States Government (as defined by 41 USC 7101-8), then all Claims (as defined in FAR 52.233-1-c) by Docusign against the United States for any alleged breach of this Agreement must be brought as a dispute as set forth in the Contract Disputes Act (41 USC 7101).
13. GENERAL
13.1 Relationship. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Except as expressly set forth in this Agreement, nothing in this Agreement, expressed or implied is intended to give rise to any third-party beneficiary.
13.2 Assignability. Neither Party may assign its rights or obligations under this Agreement without the other Party’s prior written consent, such consent not to unreasonably be withheld. Notwithstanding the foregoing, except as prohibited by applicable law or regulation, Docusign may assign its rights and obligations under this Agreement to an Affiliate as part of a reorganization, or to a purchaser of its business entity or substantially all of its assets or business to which rights and obligations pertain, and Customer may assign to a successor agency as part of formal reorganization, provided that: (a) for Customers, if they are authorized to do so by FAR 42.1204 or State equivalent; and (b) any assignee is bound hereby. Other than the foregoing, any attempt by either Party to transfer its rights or obligations under the Agreement will be void.
13.3 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective only if it is in writing and sent using: (a) Docusign Services; (b) certified or registered mail; or (c) a nationally recognized overnight courier, to the appropriate Party at the address set forth on the Order Form, with a copy, in the case of Docusign, to legal@docusign.com. Each Party hereto expressly consents to service of process by registered mail. Either Party may change its address for receipt of notice by notice to the other Party through a notice provided in accordance with this Section 12.3 (Notices). Notices are deemed given upon receipt if delivered using Docusign Services, or two (2) business days following the date of mailing, or one (1) business day following delivery to a courier.
13.4 Force Majeure. In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under the Agreement due to any cause beyond the reasonable control of the Party invoking this provision and without its fault or negligence (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, telecommunications outage not caused by the obligated Party, or other similar causes) (“Force Majeure Event”), the affected Party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that the affected Party: (a) provides the other Party with prompt notice of the nature and expected duration of the Force Majeure Event, setting forth the full particulars in connection therewith; (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such Force Majeure Event with all reasonable dispatch; (c) provides periodic notice of relevant developments; and (d) provides prompt notice of the end of such Force Majeure Event. Delays in fulfilling the obligations to pay hereunder are excused only to the extent that payments are entirely prevented by the Force Majeure Event.If Docusign Services are not restored within thirty (30) days of the Force Majeure Event, Customer may terminate the Agreement upon providing written notice to Docusign, and in such case, Docusign will provide a prorated refund to Customer for any prepaid fees received by Docusign under the Agreement that correspond to the unused portion of the Term.
13.5 Trade Restrictions. The Docusign Services, Documentation, and the provision and any derivatives thereof 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 (“Trade Restrictions”).
(a) Each Party shall comply with all applicable Trade Restrictions in performance of the Agreement. For the avoidance of doubt, nothing in the Agreement is intended to induce or require either Party to act in any manner which is penalized or prohibited under any applicable laws, rules, regulations or decrees.
(b) Each Party represents that it is not a Restricted Party. “Restricted Party” means any person or entity that is: (i) located or organized in a country or territory subject to comprehensive U.S. sanctions (currently including Cuba, Crimea, Iran, North Korea, Syria) ("Sanctioned Territory"); (ii) owned or controlled by or acting on behalf of the government of a Sanctioned Territory; (iii) an entity organized in or a resident of a Sanctioned Territory; (iv) identified on any list of restricted parties targeted under U.S., EU or multilateral sanctions, including, but not limited to, the U.S. Department of the Treasury, Office of Foreign Assets Control’s (“OFAC” ) List of Specially Designated Nationals and Other Blocked Persons, the OFAC Sectoral Sanctions List, the U.S. State Department's Nonproliferation Sanctions and other lists, the U.S. Commerce Department’s Entity List or Denied Persons List located at https://www.export.gov/article?id=Consolidated-Screening-List, the consolidated list of persons, groups and entities subject to EU financial sanctions from time to time; or (v) owned or controlled by, or acting on behalf of, any of the foregoing.
(c) Customer acknowledges and agrees that it is solely responsible for complying with, and shall comply with, Trade Restrictions applicable to any of its own or its Authorized Users’ content or Customer Data transmitted through the Docusign Services. Customer shall not and shall not permit any Authorized User to access, use, or make the Docusign Services available to or by any Restricted Party or to or from within any Sanctioned Territory.
13.6 Anti-Corruption. In connection with the Docusign Services performed under this Agreement and Customer’s use of Docusign’s services, the Parties agree to comply with all applicable anti-corruption and anti-bribery related laws, statutes, and regulations. Customer agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Docusign employees or agents in connection with an Order Form, SOW or this Agreement.
13.7 U.S. Government Rights. All Docusign Services, including Documentation, and any software as may be provided under an applicable Service Schedule, are deemed to be “commercial computer software” and “commercial computer software documentation”. “Commercial computer software” has the meaning set forth in FAR section 2.101 for US. Federal civilian agency purchases and DFARS 252.227-7014(a)(1) for U.S. Federal defense agency purchases. If the software is licensed or the Docusign Services are acquired by or on behalf of a U.S. Federal civilian agency, including acquisitions via GSA contract, Docusign provides the commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of this Agreement as required in FAR 12.212 (Computer Software) and FAR 12.211 (Technical Data) and their successors. If the software is licensed or the Docusign Services are acquired by or on behalf of any agency within the DOD, Docusign provides the commercial computer software and/or commercial computer software documentation and other technical data subject to the terms of this Agreement as specified in DFARS 227.7202-3 and its successors. Only if this is a DOD prime contract or DOD subcontract, the Government acquires additional rights in technical data as set forth in DFARS 252.227-7015. Except as otherwise set forth in an applicable Service Schedule, this Section 13.7 (U.S. Government Rights) is in lieu of, and supersedes, any other FAR, DFARS or other clause or provision that addresses U.S. Government rights in computer software or technical data.
13.8 Publicity. Except for pages whose design and content is under the control of the Customer, or for links to or promotion of such pages, Docusign agrees not to display any Customer or government seals, trademarks, logos, service marks, and trade names on our homepage or elsewhere on one of Docusign’s hosted sites unless permission to do so has been granted by Customer or by other relevant government authority.
13.9 Waiver. The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
13.10 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of the Agreement will remain in full force and effect.
13.11 Insurance. Docusign will maintain, at its sole expense, insurance in such amounts and with such types of coverage as is usual and customary with coverage limits that are appropriate for the Docusign Services supplied under the Agreement. At a minimum, Docusign shall maintain: (i) commercial general liability insurance (including automobile liability if applicable to the Docusign Services); (ii) errors and omissions insurance (which will include cyber-liability insurance); and (iii) insurance for claims under workers compensation laws or other similar laws or regulations. Upon Customer’s prior written request Docusign shall provide Customer with a certificate of insurance evidencing such insurance coverages.
13.12 Entire Agreement. This Agreement is the final, complete, and exclusive expression of the agreement between the Parties regarding the Docusign Services provided under this Agreement. This Agreement supersedes and replaces, and the Parties disclaim any reliance on, all previous oral and written communications (including any confidentiality agreements pertaining to the Docusign Services under this Agreement), representations, proposals, understandings, undertakings, and negotiations with respect to the subject matter hereof and apply to the exclusion of any other terms that Customer seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing. This Agreement may be changed only by a written agreement signed by an authorized agent of both Parties. This Agreement will prevail over terms and conditions of any Customer-issued purchase order or other ordering documents, which will have no force and effect, even if Docusign accepts or does not otherwise reject the purchase order or other ordering document.