TERMS AND CONDITIONS for CoSign Services

DOCUSIGN, INC.

TERMS AND CONDITIONS for CoSign Services

v160112

These Terms and Conditions and Attachments govern the use of CoSign Service(s) and Product(s) purchased on an Order Form (collectively, the “Agreement”) entered into by DocuSign, Inc., a corporation organized under the laws of the State of Delaware, with its principal place of business located at 221 Main Street Suite 1000, San Francisco, CA 94105 (“DocuSign”) and the Subscriber identified on the Order Form.  By signing the Order Form, each party agrees as follows:

1.      DEFINITIONS.  Capitalized terms not defined in this Section 1 are as defined in the Order Form.

“Automated Processing” means the processing of a Signature(s) using automated batch or bulk sending operations or for the use of initiating a Signature through the use of the Product.

“Authorized User” means any employee or agent of Subscriber who has been issued a unique signing credential that can be authenticated by the Product, provided that no two persons may register or use CoSign Service(s) as the same Authorized User.

“CoSign API” means the application(s) programming interface that supports interoperation of applications with the CoSign Service(s) and that are governed by the terms of the CoSign Services Developer Bundle License Agreement attached hereto as Attachment 1.

“CoSign Service(s)” means the CoSign Software, Professional Services, and Support and Maintenance as subscribed to by Subscriber during the Term and subject to this Agreement, as indicated in the applicable Order Form(s) or Work Order. 

“Equipment” has the meaning set out on the Order Form, and includes connectors, and/or add-ons.

“Developer License” means the Developer Bundle License set forth in Attachment 1.

“Documentation” means explanatory written materials or files that are provided by DocuSign or otherwise made available to Subscriber in connection with the Software.

“Order Form” means the schedule that sets forth the pricing, features and options of the CoSign Service(s) and Product(s) selected by Subscriber.  An Order Form is not binding until it is duly executed by both DocuSign and Subscriber, at which point it becomes incorporated into and part of the Agreement. 

“Product” means the CoSign system comprised of Equipment and Software that is identified on the Order Form.

“Professional Services” means any integration consulting or assistance, training, transition and similar ancillary services that are set forth in an Order Form or Work Order as described in Section 11 through14.

“Seat” means an Authorized User activated to use the Product or Service.  Subscriber may unregister or deactivate Authorized Users and replace them with other Authorized Users without penalty, so long as the number of active Authorized Users registered at any one time is equal to or less than the number of Seats subscribed.

“Signature” means data associated with a signature request, including date of request, hash value, associated application, and Signature Party’s name, job title, email address, and the successful fulfillment of that request by the Product or Service.  

"Software" means any and all software, including Updates and Upgrades thereof subscribed to and/or licensed by DocuSign to Subscriber under this Agreement as specified in an Order Form hereto and delivered to Subscriber, all as developed by or for DocuSign, Inc. and any of its affiliated companies.  

“Subscriber’s Application” means the Subscriber’s Application, if any, described in the Order Form with which CoSign Service(s) shall be solely used.

“Support and Maintenance” means the customer support and maintenance services provided to Subscriber in accordance with Section 5.11 of this Agreement and the Support and Maintenance Agreement attached hereto as Attachment 2.

“Third Party Software” means software or services that may be provided by DocuSign, its agents, or partners to Subscriber for use solely in conjunction with the Software that is created by a third party, and covered by different license or service terms.

“Update” means, with respect to any component of the Software, a new version that includes modifications, revisions or minor enhancements to the Products’ existing functionality to correct programming or design errors (designated by an increase in the release number to the right of the decimal point following the version previously supplied).

“Upgrade” (aka “Major New Release”) means a version of the Product(s) which incorporates additional functionality or features as compared with prior versions (designated by an increase in the release number to the left of the decimal point).

“Work Order” has the meaning set out in Section 11 of this Agreement.

2.      TERM AND TERMINATION

2.1  Term.  The term of this Agreement will begin on the Order Start Date and, unless terminated sooner as provided herein, will continue until the Order End Date specified on the Order Form (the “Term”). Except as specifically provided herein, the Agreement shall be non-cancellable during the Term.  If either party commits a material breach or default in the performance of any of its obligations under this Agreement, then the other party may terminate this Agreement by giving the defaulting party written notice of termination, unless the material breach or default in performance is capable of being cured within 30 days after the defaulting party receives notice thereof.

2.2   Subscriber may not cancel any order due to delay in delivery unless it (i) first provides DocuSign with written notice of the delay and its intent to cancel, and (ii) allows DocuSign an opportunity to complete shipment within sixty (60) days following receipt of Subscriber’s notice. DocuSign shall not be liable for any damages or penalty for delay in delivery or for failure to give notice of delay for any reason whatsoever.

2.3  Post-Termination Obligations.  If this Agreement expires or is terminated for any reason: (a) Subscriber will pay to DocuSign any amounts that have accrued before, and remain unpaid as of, the date of the termination or expiration; (b) any and all liabilities of Subscriber to DocuSign that have accrued before the effective date of the termination will survive; (c) licenses and use rights granted to Subscriber with respect to CoSign Service(s) and intellectual property will immediately terminate; (d) DocuSign’s obligation to provide any further services to Subscriber under this Agreement will immediately terminate; (e) Subscriber shall return or destroy, as DocuSign may direct, any and/or all Software, Documentation, and Developer Bundle and if so requested by DocuSign, deliver to DocuSign a certificate executed by one of its duly authorized officers confirming compliance with the return or destruction obligation; and (f) the parties’ rights and obligations under Sections 6.1, 6.3, 8.2, 9, 10, 12.2 and 14 will survive together with those Sections as set forth Attachment 1 . Upon termination of this Agreement by DocuSign for Subscriber’s uncured material breach of this Agreement, Subscriber will be responsible for any costs and expenses incurred by DocuSign to recover any Equipment, Software and/or Documentation.

 3.      FEES AND PAYMENT TERMS

3.1  Invoicing.  Subscriber will be invoiced as set forth in the Order Form.  Unless otherwise specified in an applicable Order Form, the first invoice will coincide with the Order Start Date and, unless otherwise agreed by the parties in writing, all amounts will be denominated in U.S. dollars.  DocuSign may assess finance charges equal to the lesser of 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law.  Subscriber will be responsible for any reasonable attorneys’ fees, costs and expenses incurred by DocuSign to collect any amounts that are not paid when due.

3.2  Payment.  DocuSign may accept any partial payment, regardless of any language that would purport to limit DocuSign’s rights to collect further amounts, and without prejudice to DocuSign’s right to recover the balance of the amount due or to pursue any other right or remedy.  Amounts due to DocuSign may not be withheld or offset by Subscriber for any reason against amounts due or asserted to be due to Subscriber from DocuSign.  If Subscriber fails to timely pay any undisputed amounts due under this Agreement, then without limitation of any of its other rights or remedies, DocuSign may suspend performance of those services until DocuSign receives all past due amounts from Subscriber.

3.3  Taxes.  Other than income taxes imposed on DocuSign, Subscriber will bear all taxes, duties, VAT and all other governmental charges (collectively, “taxes”) resulting from this Agreement or transactions conducted in relation to this Agreement or the CoSign Service(s) and/or Product(s).  If Subscriber is exempt from any applicable taxes, it will provide evidence reasonably satisfactory to DocuSign of its tax-exempt status, and DocuSign will not include such taxes in its invoices to Subscriber.

4.      SUBSCRIPTION PLANS AND USAGE PRICING. CoSign Service(s) is sold on the basis of an annual prepaid subscription, and may be limited by number of Signatures, or Authorized User or Seat or other metrics or usage limitations as set forth in the Order Form.   

5.      SUBSCRIPTION SERVICE AND LICENSE.

5.1  Delivery of Equipment. Delivery of CoSign Product(s) equipment (“Equipment”) will be FCA Origin, Incoterms 2010. Unless otherwise specified in an applicable Order Form, DocuSign will pay the freight for transportation of Equipment to Subscriber when Subscriber is within an active subscription Term. Title transfers and Subscriber assumes all risk of loss upon delivery of the Equipment by DocuSign to a carrier at DocuSign’s premises. DocuSign will select the carrier but shall not be deemed thereby to assume any liability in connection with the shipment nor shall the carrier be an agent of DocuSign. Subscriber will be responsible for all storage drayage and other charges at Subscriber’s site.

5.2   DocuSign reserves the right, without prior approval from or notice to Subscriber, to make changes to Product(s) (i) which do not adversely affect the performance of the Product(s) or do not reduce performance below any contractually agreed to specification; (ii) when required for purposes of safety; or (iii) to meet Product(s) specifications. DocuSign also reserves the right to make product improvements without incurring any obligation or liability to make the same changes in Product(s) previously manufactured or purchased.

5.3   Provision of CoSign Services.  Subject to the terms of this Agreement, Attachment 1 and the applicable licensing terms contained therein, DocuSign grants Subscriber a personal, non-exclusive, non-transferrable, revocable license to use the Equipment and Software to operate the Equipment in accordance with the Documentation. DocuSign will provide CoSign Service(s) in accordance with the Documentation. The right to use CoSign Service(s) and Product(s) is limited to the Authorized Users, and Subscriber may not resell CoSign Service(s) and/or Product(s) or use the Equipment with software other than the Software provided by DocuSign to Subscriber under this Agreement.  DocuSign hereby grants to Subscriber for the Term a non-exclusive, non-transferable license to copy and use the object code versions of the Software that will accompany the Equipment, for the purposes of (i) integrating CoSign Service(s) with Subscriber’s Application, (ii) using CoSign Service(s) for Subscriber’s Application with Equipment, and (iii) supporting CoSign Service(s).  No sublicensing rights are granted or implied. Title to the CoSign Service(s) Software shall at all times remain with DocuSign. 

5.4  Subscriber Obligations.  As a condition for this license, Subscriber shall (i) make all payments when due, (ii) grant DocuSign on-line access to the logs in Subscriber’s CoSign Product(s) instance, (iii) cooperate with DocuSign’s requests to electronically monitor the number of Seats and/or Signatures, and (iv) provide periodic reports in the form requested by DocuSign on Subscriber’s usage metrics.

5.5  Usage and Access Limitations.  All Software license rights which are not expressly granted herein are deemed withheld.  Without limitation on the foregoing, no rights to the DocuSign source code are granted or implied.  Subscriber shall not: (i) adapt, alter, modify, translate, create derivative works of, reverse compile, disassemble, or otherwise attempt to reconstruct the source code of the Software; (ii) use the Software for any purpose that is not authorized in the Software documentation; (iii) allow use of the Software in any manner that allows internal access to its functionality other than through the functionality of the Subscriber’s systems that incorporate the Software or the Software’s interface (as the same may be enhanced from time to time) published by DocuSign; (iv) allow use of the Software to create digital signatures by any device other than the Equipment; (v) allow use of the Equipment with any software not provided by DocuSign; (vi) assign, pledge, rent, lease, loan or timeshare the Software to third parties; (vii) obfuscate, remove or alter any of the trademarks, trade names, logos, patent or copyright notices, confidential or proprietary rights notices or legends or other notices or markings on or in CoSign Service(s)or accompanying documentation, without DocuSign’s express written consent; (viii) add, or permit any third party to add, any markings, notices or legends to CoSign Service(s) and/or Product(s) without DocuSign’s express prior written consent; (ix) publish or otherwise disclose to any third party the results of any analysis, benchmark or other tests on CoSign Service(s) and/or Product(s); (x) copy any portion of the Software for any purpose not expressly allowed under this Agreement; (xi) sublicense or distribute the Software in any manner to any third party; or (xii) in the event the Subscriber’s Application is specifically identified in the Order Form, use the Software for any other application.

5.6  Updates/Upgrades.  DocuSign or its agents may make Updates and/or Upgrades of the Software available during the Term.  Updates and/or Upgrades of Software may be provided to Subscriber subject to additional or different terms, and such terms shall be deemed accepted by Subscriber upon installation or use of such version.  Subscriber acknowledges that failure to timely update the Software may prevent it from functioning, and that DocuSign shall have no liability for such malfunction.  Notwithstanding the foregoing, Subscriber shall immediately install any Update and/or Upgrade of the Software provided for the purpose of avoiding or resolving a third party claim of intellectual property infringement applicable to a previous version of the Software.

5.7  Third Party Software. The Software may contain or be distributed with Third Party Software.  Information concerning the inclusion of Third Party Software, if any, and the notices, license terms, and disclaimers applicable to that Third Party Software are contained in the Documentation.  Except as expressly provided herein, this Agreement does not apply to any Third Party Software identified in the Documentation. Any Third Party Software provided with the Software is for use solely with the Software. Any use of the Third Party Software on a stand-alone basis is strictly prohibited. Subscriber shall review and adhere to all licenses for Open Source Software. By accepting the Software License Terms, Subscriber is also accepting the terms and conditions of the licenses applicable to any Third Party Software (including any Open Source Software) included with the Software. Subscriber will have no recourse against DocuSign unless DocuSign is the stated licensor and then only to the extent provided in such license. Subscriber will be responsible to do whatever is necessary or required by the third party licensor for the Third Party Software licenses and related terms to take effect (e.g. online registration). Unless stated otherwise in these Software License Terms or in the third Party Software license or provided under a maintenance contract, DocuSign will not provide support for Third Party Software and will not provide Subscriber with any IP indemnity for the Third Party Software.

5.8   Intellectual Property Ownership, Copyright Protection.  DocuSign and its licensors own various intellectual property and technology rights associated with the CoSign Service(s) and/or Product(s).  Subscriber’s rights with respect to the foregoing are limited to the rights to use the CoSign Service(s) and/or Product(s) that are granted under this Agreement or the applicable Order Form for the purposes contemplated by this Agreement, and no other, and all rights not expressly granted are reserved by DocuSign and its licensors and suppliers. DocuSign does not license or transfer to Subscriber, or any Authorized User or other third party, any of DocuSign’s technology or other intellectual property rights.  All right, title, and interest in and to DocuSign and its licensors’ technology and intellectual property, whether patent, copyright, trade secret, trademark, service mark, design, database or moral rights, remain solely with DocuSign and its licensors at all times.  Without limiting the generality of the foregoing, the structure, organization and code of the Software are trade secrets and confidential information of DocuSign and its licensors. The Software is protected by law, including without limitation the copyright laws of the United States and other countries, and by international treaty provisions. 

5.9   Verification Rights.  DocuSign or its independent auditor may, upon reasonable notice to Subscriber, examine and audit Subscriber’s records and systems to ensure compliance with applicable software licenses. The audit will be performed during normal business hours in a manner which does not unduly interfere with Subscriber’s business operations. If the audit shows that Subscriber is using more copies of the Software than permitted under Subscriber’s applicable licenses, DocuSign will charge Subscriber additional usage fees.

5.10  Developer Bundle License.  For Subscribers requiring Software and Materials to create interoperability between CoSign Services and Subscriber’s product or systems for internal use, Subscriber may obtain a Developer Bundle (as defined in the Attachment 1) subject to the terms and conditions of Attachment 1.

5.11  Professional Service.  Subscriber may purchase training and additional professional services from DocuSign subject to the terms and conditions of this Agreement at DocuSign’s current rates that will be described in greater detail in an applicable Order Form or Work Order.

5.11  Support and Maintenance.  DocuSign will provide customer support, technical support, and Equipment maintenance support to Subscriber in accordance with the Support and Maintenance plan that is identified on the Order Form, as further detailed in the Support and Maintenance Agreement attached hereto as Attachment 2.

6.      WARRANTIES AND REMEDIES.

6.1  Warranty of Title.  DocuSign warrants that it has the right, by title, license or contract, to enter into this Agreement.

6.2  Equipment Warranty and Remedy.  Unless otherwise specified in an applicable Order Form, Equipment is warranted against defects in workmanship and material for the period of one (1) year from date of delivery as evidenced by DocuSign’s packing slip or other shipment receipt (“Equipment Warranty Period”). DocuSign’s sole responsibility under this warranty shall be to either repair or replace, at its option, any component which fails during the applicable warranty period because of a defect in workmanship and material, provided Subscriber has promptly reported same to Subscriber in writing. All replaced broken or defective Equipment or parts shall become DocuSign’s property. DocuSign will honor the warranty at DocuSign’s repair facility. It is Subscriber’s responsibility to return, at its expense, the allegedly defective Equipment to DocuSign. Subscriber must obtain a Return Materials Authorization (RMA) number and shipping instructions from DocuSign prior to returning any Equipment under warranty. Transportation charges for the return of the Equipment to Subscriber shall be paid by DocuSign within USA. For all other locations, the warranty excludes all costs of shipping, customs clearance and other related charges. If DocuSign determines that the Equipment is not defective within the terms of the warranty, Subscriber shall pay DocuSign all costs of handling, transportation and repairs at the then prevailing repair rates. All the above warranties are contingent upon proper use of the Equipment. These warranties will not apply (i) if adjustment, repair or parts replacement is required because of accident, unusual physical, electrical or electromagnetic stress, negligence of Subscriber, misuse, failure of electric power environmental controls, transportation, not maintained in accordance with DocuSign specifications, or abuses other than ordinary use (ii) if the Equipment has been modified by Subscriber or has been repaired or altered outside DocuSign’s factory, unless DocuSign specifically authorizes such repairs or alterations; (iii) where DocuSign serial numbers, warranty data or quality assurance decals have been removed or altered.

6.3   Acceptance of Equipment. Acceptance shall occur upon delivery, unless DocuSign is notified in writing within ten (10) days from receipt of the Equipment(s) by Subscriber that the Equipment do not conform to Subscriber’s order or DocuSign product specifications. DocuSign’s sole obligation for such nonconforming Equipment shall be limited to repair or replacement, at its option, pursuant to the provisions of the foregoing warranty clause.

6.4  Extended Warranty. DocuSign offers an extended warranty service under a separate Support And Maintenance Agreement, a copy of which is available from DocuSign representatives.

6.5  Software Warranty.  DocuSign warrants that all Software shall operate substantially in accordance with DocuSign’s published specifications and user manuals pertaining to such Software, for 90 days from the Order Start Date 

6.6  Correction of Program Errors.  Any non-conformance of the Software (a “Program Error”), if any, reported by Subscriber must be accompanied or followed by sufficient information to enable DocuSign to reproduce and verify the Program Error including, but not limited to, the input data that generated the Program Error.  Once DocuSign has received all such information, if DocuSign is able to reproduce and verify the Program Error, DocuSign shall use commercially reasonable efforts to provide a remedy. Remedies may include, without limitation, providing instructions for Subscriber to cure the Program Error, or delivering a software patch or update.  In no circumstances does DocuSign represent or warrant that any or all Program Errors can or will be remedied.

6.7  Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against it in accordance with its terms; (b) no authorization or approval from any third party is required in connection with its execution, delivery, or performance of this Agreement; and (c) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.

6.8  THIS SECTION 6, SETS FORTH SUBSCRIBER’S SOLE REMEDY AND DOCUSIGN’S ENTIRE OBLIGATION AND LIABILITY FOR BREACH OF ANY DOCUSIGN WARRANTY FOR EQUIPMENT, SOFTWARE, COSIGN SERVICES AND DOCUMENTATION UNDER THIS AGREEMENT.

7.      INFRINGEMENT OF THIRD PARTY PROPRIETARY RIGHTS.  If notified promptly in writing of any action (and all prior claims relating thereto) brought against Subscriber alleging that Subscriber's use of CoSign Service(s)infringes a United States patent, copyright or other proprietary right, DocuSign will defend such action at its expense and will pay the costs and damages awarded against Subscriber in such action, provided that (i) such claim of infringement arises solely from use of CoSign Service(s) itself, and not as a consequence of CoSign Service(s) combination with any other products or technology, and (ii) DocuSign shall have sole control of the defense of any such action and all negotiations for its settlement or compromise.  If a final injunction is obtained in such action against Subscriber's use of CoSign Service(s) or in DocuSign’s opinion CoSign Service(s) is likely to become the subject of a claim of infringement, DocuSign shall, at its option and at its expense, either procure for Subscriber the right to continue using CoSign Service(s); replace or modify CoSign Service(s) so that it becomes non-infringing or accept Subscriber's return and cancelation of this Agreement.  DocuSign shall not have any liability to Subscriber if the alleged infringement is based upon (a) DocuSign’s compliance with Subscriber's designs, specifications or instructions, in which case Subscriber shall defend and hold DocuSign harmless against any expenses, judgment or loss for alleged infringement of any patents, copyrights or trademarks; (b) patent issued on a patent application published after the Order Start Date; (c) incorporation by the Software or combination, operation or use of the Software in or with any technology (including any software, hardware, firmware, system or network) or service not provided by DocuSign or specified for Subscriber’s use in the Documentation, unless otherwise expressly permitted by DocuSign in writing; (d) modification of the Software other than: (i) by DocuSign in connection with this Agreement; or (ii) with DocuSign’s express written authorization and in strict accordance with DocuSign’s written directions and specifications; (e) failure to timely implement any Update or Upgrade, modification, or replacement of the Software made available to Subscriber by DocuSign; (f) use of the Software after DocuSign’s notice to Subscriber of such activity's alleged or actual infringement, misappropriation or other violation of a third party's rights; (g) negligence, abuse, misapplication or misuse of the Software or Documentation by or on behalf of Subscriber, Subscriber’s representatives or a third party; (h) use of the Software or Documentation by or on behalf of Subscriber that is outside the purpose, scope or manner of use authorized by this Agreement or in any manner contrary to DocuSign’s instructions; events or circumstances outside of DocuSign’s commercially reasonable control (including any third-party hardware, software or system bugs, defects or malfunctions).  No costs or expenses shall be incurred for the account of DocuSign without the prior written consent of DocuSign.  In no event shall DocuSign’s total liability to Subscriber under or as a result of compliance with the provisions of this Section 7 (“Infringement of Third Party Proprietary Rights”) exceed the sum paid to DocuSign by Subscriber under this Agreement. The foregoing states Subscriber’s sole remedy and the entire liability of DocuSign with respect to alleged infringement of any third party proprietary rights by CoSign Service(s), Equipment or any part thereof or by its operation.

8.      DISCLAIMERS AND LIMITATIONS.

8.1  DISCLAIMER OF CONSEQUENTIAL DAMAGES; CAP ON DAMAGES. 

(i)  IN NO EVENT WILL DOCUSIGN BE LIABLE TO SUBSCRIBER FOR (a) REPROCUREMENT COSTS; (b) SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES; (c) ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR THE USE OR PERFORMANCE OF COSIGN SERVICE, REGARDLESS OF WHETHER THE CAUSE OF ACTION IS IN CONTRACT, TORT, INCLUDING NEGLIGENCE, OR ANY OTHER FORM.

(ii)  IN NO EVENT WILL DOCUSIGN’S TOTAL AGGREGATE LIABILTY OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF FORUM AND BASIS OF ACTION OR CLAIM (CONTRACT, TORT, OR OTHERWISE), WILL EXCEED THE TOTAL AMOUNT PAYABLE BY SUBSCRIBER TO DOCUSIGN UNDER THE ORDER FORM TO WHICH THE LIABLITY RELATES.

(iii) No person, including any dealer, agent or representative of DocuSign is authorized to assume for DocuSign any other liability on its behalf except as set forth herein. NONPAYMENT OF ANY INVOICE RENDERED WITHIN THE STATED PAYMENT TERMS AUTOMATICALLY CANCELS ANY WARRANTY OR GUARANTEE STATED OR IMPLIED. If any payment is due DocuSign for services performed hereunder, it shall be subject to the same payment terms as the original purchase.

8.2  DISCLAIMER OF WARRANTIES.  ALL DOCUSIGN EQUIPMENT, SOFTWARE, PROFESSIONAL SERVICES AND COSIGN SERVICES ARE PROVIDED “AS-IS”.  DOCUSIGN DISCLAIMS ALL IMPLIED WARRANTIES FOR EQUIPMENT, SOFTWARE, PROFESSIONAL SERVICES AND COSIGN SERVICES INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  Subscriber has no right to make or pass on any representation or warranty on behalf of DocuSign to any third party.

8.3  Time Bar.  Except for an action for nonpayment, no action, whether in contract or tort, including negligence, or any other form of action arising out of or in connection with this Agreement, may be brought by either party more than twenty four (24) months after the cause of action has accrued.

8.4  DocuSign’s Suppliers. All limitations and exclusions of DocuSign’s liability under this agreement, including without limitation the limitations and exclusions for breach of warranty and for infringement, shall extend to DocuSign’s affiliated companies, subsidiaries, subcontractors and suppliers.

9.      CONFIDENTIALITY

9.1  “Confidential Information” means any trade secrets or other information of DocuSign or Subscriber, whether of a technical, business, or other nature (such as DocuSign's software), that is disclosed to the other party (the “Recipient”) and that is marked “confidential,” or, whether or not marked, that a reasonable person would understand to be confidential given the circumstances of the disclosure.  Confidential Information does not include any information that: (a) was known to Recipient before receiving it from the disclosing party; (b) is independently developed by Recipient without use of or reference to any Confidential Information of the other party; (c) is acquired by Recipient from another source that did not receive it in confidence from the other party to this Agreement; or (d) is or becomes part of the public domain through no fault or action of Recipient.

9.2  Restricted Use and Nondisclosure.  During and after the Term, Recipient will: (a) use the Confidential Information of the other party solely for the purpose for which it is provided; (b) not disclose such Confidential Information to a third party, except on a need-to-know basis to its attorneys, auditors and consultants who are under confidentiality obligations at least as restrictive as contained herein; and (c) protect such Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.

9.3  Required Disclosure.  If Recipient is required by law to disclose Confidential Information of the other party or the terms of this Agreement, Recipient will give prompt written notice to the other party before making the disclosure, unless prohibited from doing so by the legal or administrative process, and assist the disclosing party to obtain where reasonably available, an order protecting the Confidential Information from public disclosure.

9.4  Ownership.  Recipient acknowledges that, as between the parties, all Confidential Information it receives from the disclosing party, including all copies thereof in Recipient’s possession or control, in any media, is proprietary to and exclusively owned by the disclosing party.  Nothing in this Agreement grants Recipient any right, title or interest in or to any of the disclosing party’s Confidential Information.  Recipient’s incorporation of the disclosing party’s Confidential Information into any of its own materials will not render Confidential Information non-confidential.

9.5  Remedies.  Recipient acknowledges that any actual or threatened breach of this Section 9 may cause irreparable, non-monetary injury to the disclosing party, the extent of which may be difficult to ascertain.  Accordingly, the disclosing party is entitled to (but not required to) seek injunctive relief in addition to all remedies available to the disclosing party at law and/or in equity, to prevent or mitigate any breaches of this Agreement or damages that may otherwise result from those breaches.  Absent written consent of the disclosing party to the disclosure, the Recipient, in the case of a breach of this Section 9, 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 9.

9.6  Existing Obligations.  The obligations in this Section 9 are in addition to, and supplement, each party’s obligations of confidentiality under applicable law and under any nondisclosure or other agreement between the parties.

10.      GENERAL PROVISIONS

10.1  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) certified or registered mail; or (b) insured 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.  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.  Notices are deemed given upon receipt if delivered using CoSign Service(s), two business days following the date of mailing, or one business day following delivery to a courier.

10.2   Notice to U.S. Government End Users. The Software and Documentation are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.  Unpublished-rights reserved under the copyright laws of the United States. Copyright 2015 DocuSign, Inc., 221 Main Street, Suite 1000, San Francisco, CA 94105, USA. 

10.3  Feedback. Any feedback provided by Subscriber to DocuSign concerning the functionality or performance of the Software (including identifying potential errors and improvements) (“Feedback”), is hereby assigned by Subscriber to DocuSign which includes all right, title, and interest in and to the Feedback, and DocuSign is free to make unrestricted use of the Feedback without any necessity of payment to Subscriber.  Subscriber represents and warrants that i at the time of disclosure to Subscriber is the sole owner of the Feedback, or otherwise have the unfettered right or license to make the foregoing assignment.

10.4. Export Rules. Subscriber may not export or re-export the Software without: (a) the prior written consent of DocuSign; and (b) complying with all applicable export and import control laws and obtaining any necessary permits and licenses.

10.3  Relationship.  At all times, the parties are independent actors, and are not the agents or representatives of the other.  This Agreement is not intended to create a joint venture, partnership, or franchise relationship, or give rise to any third party beneficiary.

10.4  Assignability.  Subscriber may not assign its rights or obligations under this Agreement without DocuSign’s prior written consent.  If consent is given, this Agreement will bind Subscriber’s successors and assigns.  Notwithstanding the foregoing, either party may assign this Agreement to a purchaser of its business entity or substantially all of its assets without the other party’s consent, as long as the purchaser is not insolvent or otherwise unable to pay its debts as they become due.  Other than the foregoing, any attempt by Subscriber to transfer its rights or obligations under this Agreement will be void.

10.5  Force Majeure.  Except for any payment obligations, neither party will be liable for failure to perform any obligation under this Agreement to the extent such failure is 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.

10.6  Mandatory Arbitration.  Except for claims: (a) for breach of the confidentiality provisions; (b) arising out of the indemnity obligations; and (c) for injunctive relief, any dispute, claim or controversy arising out of or related to this Agreement or the performance, enforcement, breach, termination, validity or interpretation thereof, including the determination of the scope or applicability of this agreement to arbitrate, that cannot be resolved through good faith discussions between the parties within a reasonable period of time (not to exceed 30 days), will be settled by binding arbitration conducted before one arbitrator.  The arbitration shall be administered by the Judicial Arbitration and Mediation Services (”JAMS”) pursuant to JAMS’ Streamlined Arbitration Rules and Procedures, if applicable, or otherwise pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules (the “JAMS Rules”).  Either party may submit the matter to arbitration.  Such disputes will be resolved by the arbitrator as determined under the JAMS Rules.  Unless otherwise agreed to by the parties, the arbitration will be held in the home jurisdiction of the party against whom arbitration is initiated.  Each party will bear its own expenses in the arbitration and will share equally the costs of the arbitration; provided, however, that the arbitrator may, in its discretion, award costs and fees to the prevailing party.  Judgment upon the award may be entered in any court having jurisdiction over the award or over the applicable party or its assets.  This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

10.7  Governing Law.  This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Washington, U.S.A., without reference to its choice of law rules to the contrary.  Any legal action arising under this Agreement must be initiated within two years after the cause of action arises.  Each party hereby irrevocably waives, to the fullest extent permitted by law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement.

10.8  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.

10.9  Severability.  If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect.  If any material limitation or restriction on the grant of any license to Subscriber under this Agreement is found to be illegal, unenforceable, or invalid, the license will immediately terminate.

10.10  Entire Agreement.  This Agreement is the final and complete expression of the agreement between these parties regarding the CoSign Service(s) and Product(s).  This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters.  These terms and conditions are an essential consideration for DocuSign’s agreement to sell its products and shall apply to all DocuSign’s shipments notwithstanding any different, conflicting or additional terms and conditions which may appear on any order submitted by Subscriber which shall be of no effect other than to specify the Equipment, quantities, price, and requested delivery dates. This Agreement may be changed only by a written agreement signed by an authorized agent of both parties.

ADDITIONAL TERMS AND CONDITIONS FOR PROFESSIONAL SERVICES

 The following additional terms and conditions apply to Professional Services, if any, that are made the subject of an Order Form or Work Order.

11.      SERVICES, WORK ORDERS AND CHANGE ORDERS.

11.1  Services.  If and as set out in a Work Order, and subject to the terms and conditions of this Agreement, DocuSign will perform certain Professional Services for Subscriber.

11.2  Work Orders.  The specific details of the Professional Services to be performed will be determined on a per-project basis, and the details for each project will be described in a Work Order that is executed by both parties (called the “Work Order” for purposes of the Professional Services).  To the extent that an Order Form includes a standard implementation, training, consulting package, such Order Form will constitute a Work Order.  Once executed by both parties, each Work Order will be a unique agreement that incorporates the terms of this Agreement and stands alone with respect to all other Work Orders and Order Forms.  If there is a conflict between the terms of this Agreement and the terms of a Work Order, the terms of this Agreement will control unless the Work Order states that a specific provision of this Agreement will be superseded by a specific provision of the Work Order.

11.3  Change Orders.  Unless otherwise specified in a Work Order, Subscriber may reasonably request in writing that revisions be made with respect to the Professional Services or deliverables set forth in that Work Order (“Change Order”).  Within 10 business days after DocuSign’s receipt of the Change Order, DocuSign will deliver to Subscriber a written, revised Work Order reflecting DocuSign’s reasonable determination of the revised Professional Services, deliverables, delivery schedule, payment schedule, and adjusted fees or fee estimates, if any, that will apply to the implementation of the revisions.  If Subscriber approves the revised Work Order, then the parties will execute it, and upon execution, the revised Work Order will supersede the then-existing Work Order.  If Subscriber does not approve the revised Work Order within 10 business days after its receipt by Subscriber, the then-existing Work Order will remain in full force and effect, and DocuSign will have no further obligation with respect to the applicable Change Order.

12.      PERFORMANCE OF PROFESSIONAL SERVICES.

12.1  Fees; Project Management.  Subscriber will pay DocuSign for Professional Services at rates and under payment terms described in the applicable Work Order (“Professional Fees”).  Unless otherwise agreed in the applicable Work Order, Professional Fees will be invoiced in total on the Effective Date of the Work Order (or on the Order Start Date in the case of an Order Form).  For each project described in a Work Order, each party will designate a single point of contact within its organization to manage the project (“Project Leader”).  The Project Leaders will communicate as necessary to manage the Professional Services to be performed under a Work Order.

12.2  Performance Standard.  DocuSign warrants to Subscriber for a period of one year that the Professional Services will be performed in accordance with standard industry practice and the applicable Work Order (“Professional Services Warranty”).  DocuSign will complete the Professional Services, including the delivery of any deliverables, in accordance with the schedule of times and milestones specified in the Work Order. If the Professional Services do not conform to the Professional Services Warranty, at DocuSign’s option, DocuSign will either re-perform the Professional Services to conform to the Professional Services Warranty or credit to Subscriber the amounts paid therefore.  THE FOREGOING REMDIES ARE SUSCRIBERS SOLE AND EXCLUSIVE REMEDIES AND DOCUSIGN’S ENTIRE LIABILITY FOR ANY BREACH OF THE PROFESSIONAL SERVICES WARRANTY.

13.      TERM AND TERMINATION OF WORK ORDERS.  Each Work Order will commence on the specified effective date and will continue until each party’s obligations under the Work Order have been fulfilled or the Work Order is terminated as provided in the Work Order.  If any Work Order is terminated in accordance with terms contained in the applicable Work Order, then Subscriber will pay to DocuSign any Professional Fees and all other payment obligations accrued and payable for the Professional Services performed under the terminated Work Order through the effective date of the termination.  If a Work Order is terminated for any reason other than for material breach by DocuSign, Subscriber will pay to DocuSign all Professional Fees due under the Work Order had the Work Order not been terminated and had the Professional Services been fully performed in accordance with the schedule then in effect.

14.      PROPRIETARY RIGHTS.

14.1 Subscriber Materials.  Any materials provided by Subscriber to DocuSign specifically for use by DocuSign in the course of the Professional Services (“Subscriber Materials”) will be used and disclosed solely as required to perform the Professional Services.  As between the parties, Subscriber will continue to own the Subscriber Materials.

14.2 Inventions.  Except as expressly set forth to the contrary in a Work Order, all works of authorship, inventions, discoveries, improvements, methods, processes, formulas, designs, techniques, and information conceived, discovered, developed or otherwise made by DocuSign, solely or in collaboration with others: (a) in the course of performing the Professional Services; or (b) that form all or part of a deliverable provided as part of the Professional Services, whether developed as part of the Professional Services or separately, but excluding Subscriber Materials (as defined in Section 14.1) (collectively, “Inventions”), is and will remain the sole property of DocuSign.

14.3 License Grant.  Upon and subject to final payment by Subscriber of all Professional Fees owing to DocuSign, DocuSign hereby grants to Subscriber a nonexclusive, perpetual, worldwide, royalty-free license to use, copy the Inventions solely for purposes of Subscriber’s internal business operations with the Co-Sign Services and only during the terms of this Agreement.  The rights granted to Subscriber in this Section 14 are not assignable or transferable, by operation of law or otherwise, without the advance written consent of DocuSign.  Any assignments or transfers in violation of this Section 14 will be void.

 ATTACHMENT 1 DEVELOPER LICENSE to
DOCUSIGN, INC. TERMS AND CONDITIONS FOR COSIGN SERVICES

 The following additional terms and conditions apply to a Subscriber accessing a Developer Bundle (as defined below).

This CoSign Services Developer License (“Developer License”) is a legal agreement between Subscriber as a Licensee and DocuSign, Inc. regarding the use of the Developer Bundle created by DocuSign Inc. and its affiliates (collectively “DocuSign”) for implementing access to DocuSign’s digital signature solution known as CoSign Services and is incorporated into and made a part of the DocuSign, Inc. Terms and Conditions for CoSign Services (“Agreement”). This Developer Bundle may include: (i) the SAPI toolkit, (ii) CoSign Agent software, (iii) CoSign Code Samples, (iv) CoSign Documentation, (v) any and all other software products made available to Licensee under this Developer License (collectively the “Developer Bundle”), and (v) access to the CoSign hosted sandbox for testing the Developer’s implementation.  Defined terms not otherwise defined in this Agreement with have the meaning set forth in this Developer License.  

1. Grant of License: This is not a sale of the Developer Bundle. Subject to the terms and conditions set forth in this license, DocuSign grants Licensee, a non-exclusive, non-sublicensable, limited, revocable, non-transferable license to use the Developer Bundle for internal use at Licensee’s facilities within the territorial boundaries of the country where this Developer Bundle was delivered to Licensee for non-production purposes, only for the limited purposes of (i) creating interoperability between Licensee products and the CoSign Service (“Interoperable  Product”)  and (ii) support for the Interoperable Product, and for no other purpose (iii) copy and distribute to end users components created by or from the Developer Bundle necessary for interoperability with the CoSign Service, strictly as an embedded feature of Licensee’s products and not as an independent program. Distribution of any portion of this Developer Bundle to third parties on a standalone basis is strictly prohibited.

2. Updates: DocuSign or its agents may make updates or new versions of the Developer Bundle available. Updates and/or new versions of the Developer Bundle may be provided to Licensee subject to additional or different terms, and such terms shall be deemed accepted by Licensee upon installation or use of such version.  Licensee acknowledges that failure to timely update the Developer Bundle may prevent it from functioning, and that DocuSign shall have no liability for such malfunction.  Notwithstanding the foregoing, Licensee shall immediately install any update or new version of the Developer Bundle provided for the purpose of avoiding or resolving a third party claim of intellectual property infringement applicable to a previous version of the Developer Bundle.

3. Third Party Software: The Developer Bundle may contain or be distributed with Third Party Software.  Information concerning the inclusion of Third Party Software, if any, and the notices, license terms, and disclaimers applicable to that Third Party Software are contained in the Documentation.  Except as expressly provided herein, this License does not apply to any Third Party Software identified in the Documentation. Any Third Party Software provided with the Developer Bundle (i) is for use solely with the Developer Bundle, (ii) subject to the Third Party Software License and (iii) use of the Third Party Software on a stand-alone basis is strictly prohibited. Licensee will have no recourse against DocuSign unless DocuSign is the stated licensor and then only to the extent provided in such license. Licensee will be responsible to do whatever is necessary or required by the third party licensor for the licenses and related terms to take effect (e.g. online registration). Unless stated otherwise in these Developer License Terms or in the third party license or provided under a maintenance contract, DocuSign will not provide support for Third Party Software and will not provide Licensee with any IP indemnity for the Third Party Software.

4. Ownership: The Developer Bundle is the intellectual property of, and owned by DocuSign and its licensors.  Without limiting the generality of the foregoing, the structure, organization and code of the Developer Bundle are trade secrets and confidential information of DocuSign and its licensors.  The Developer Bundle is protected by law, including without limitation the copyright laws of the United States and other countries, and by international treaty provisions.  Except as expressly stated herein, this License does not grant Licensee any intellectual property rights in the Developer Bundle, and all rights not expressly granted are reserved by DocuSign and its suppliers.  Licensee agrees that upon request from DocuSign or DocuSign’s authorized representative, Licensee will within 30 days fully document and certify that use of any and all Developer Bundle at the time of the request is in conformity with Licensee’s valid licenses from DocuSign. 

5. Restrictions: Licensee will not copy the Developer Bundle, except to make a back-up copy that is not installed or used on any computer.  Any copy of the Developer Bundle that Licensee makes must contain the same copyright and other proprietary notices that appear on or in the Developer Bundle.  Licensee shall not: (i) adapt, alter, modify, translate, create derivative works of, reverse compile, disassemble, merge or otherwise attempt to reconstruct the source code of the Developer Bundle; (ii) use the Developer Bundle for any purpose that is not authorized in the documentation; (iii) allow use of the Developer Bundle in any manner that allows internal access to its functionality other than through the user interface of the Licensee’s products that incorporate the Developer Bundle; (iv) create interoperability between the Developer Bundle and any third party’s products that provide functionality similar to the CoSign Service; (v) assign, pledge, rent, lease, loan or timeshare the Developer Bundle; (vi) alter the standard “look and feel” of the CoSign Service user interface, as implemented by the Developer Bundle and depicted in its user manuals; (vii) obfuscate, remove or alter any of the trademarks, trade names, logos, patent or copyright notices, confidential or proprietary rights notices or legends or other notices or markings on or in the Developer Bundle without DocuSign’s express written consent; (viii) publish or otherwise disclose to any third party the results of any analysis, benchmark or other tests on the Developer Bundle; (ix) copy any portion of the Developer Bundle for any purpose not expressly allowed under this Developer License; (x) distribute the Developer Bundle except in the manner expressly allowed under this Developer License; or (xi) impose any fee or added cost on Licensee’s customers or end users for use of any of the CoSign Service functionality..

6. Reservation of Rights: All rights, to the Developer Bundle, which are not expressly granted herein, are deemed withheld. Without limitation on the foregoing, no rights to the Developer Bundle are granted or implied and no license will be deemed granted by implication or estoppel.

7.   Warranty.  Except as otherwise expressly set forth herein, DOCUSIGN PROVIDES THE DEVELOPER BUNDLE AND ANY SERVICES PROVIDED UNDER THIS DEVELOPER LICENSE “AS IS,” WITHOUT WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE OR CONTINUOUS OPERATION AND NON-INFRINGEMENT.  LICENSEE WILL UNDERTAKE ANY AND ALL DEVELOPMENT AT LICENSEE’S OWN RISK, INCLUDING ALL RESPONSIBILITY FOR LICENSEE PRODUCT(S).

8. DISCLAIMER OF CONSEQUENTIAL DAMAGES; CAP ON DAMAGES. 

(i)  IN NO EVENT WILL DOCUSIGN BE LIABLE TO SUBSCRIBER FOR (a) REPROCUREMENT COSTS; (b) SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES; (c) ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, OR THE USE OR PERFORMANCE OF COSIGN SERVICE, REGARDLESS OF WHETHER THE CAUSE OF ACTION IS IN CONTRACT, TORT, INCLUDING NEGLIGENCE, OR ANY OTHER FORM.

(ii)  IN NO EVENT WILL DOCUSIGN’S TOTAL AGGREGATE LIABILTY OF ANY KIND ARISING OUT OF OR RELATING TO THIS DEVELOPER LICENSE, REGARDLESS OF FORUM AND BASIS OF ACTION OR CLAIM (CONTRACT, TORT, OR OTHERWISE), WILL EXCEED FIVE THOUSAND DOLLARS (USD $5,000.00).

9. Termination: This License will be effective upon the Effective Date, and shall automatically terminate on the earlier of: (i) the expiration or termination of Licensee’s right to receive the CoSign Service(s); or (ii) DocuSign’s termination of this License, as permitted herein. Notwithstanding anything to the contrary herein, DocuSign may (at its sole discretion) suspend or terminate this License if Licensee fails to comply with any term of this License.

9.1   Effect of Termination.  Upon termination of this License, Licensee shall cease all use of the Developer Bundle and if requested by DocuSign, certify in writing to DocuSign that all copies of the Developer Bundle have been destroyed or deleted from any and all computer libraries or storage devices in Licensee’s possession and/or control. DocuSign’s rights and Licensee’s obligations under Sections 5 through 10 will survive the termination of this License. 

10. Feedback. If Licensee provide any feedback to DocuSign concerning the functionality or performance of the Developer Bundle (including identifying potential errors and improvements) (“Feedback”), Licensee hereby assign to DocuSign all right, title, and interest in and to the Feedback, and DocuSign is free to make unrestricted use of the Feedback without any necessity of payment to Licensee.  Licensee represents and warrants that Licensee are the sole owner of the Feedback, or otherwise have the unfettered right or license to make the foregoing assignment.

11. Export Rules. Licensee may not export or re-export the Developer Bundle without: (a) the prior written consent of DocuSign; and (b) complying with all applicable export and import control laws and obtaining any necessary permits and licenses.

12. Notice to U.S. Government End Users. The Developer Bundle and Documentation are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.  Unpublished-rights reserved under the copyright laws of the United States. Copyright 2015 DocuSign, Inc., 221 Main Street, Suite 1000, San Francisco, CA 94105, USA.

13.  Survival.  In additional to the terms that survive in the main body of the Agreement, the following Developer License Sections will survive; Sections 4, 6 through 14 and all definition of defined terms.

14.  Conflict.  If there is a conflict between the main body of the Agreement and this Developer License, the terms and conditions of this Developer License will govern and control as to this Developer License subject matter.

ATTACHMENT 2 SUPPORT AND MAINTENANCE AGREEMENT for CoSign Services
v151204

1.               SUPPORT AND MAINTENANCE

 1.1  DocuSign agrees to provide Support and Maintenance pursuant to the following terms and conditions for CoSign Service(s) (“Agreement”). Except as provided in the Terms and Conditions for CoSign Services, no support and maintenance services are provided to Subscriber unless Subscriber purchases a support and maintenance plan. Under a CoSign Service Support and Maintenance plan, Subscriber is entitled to customer support, technical support and Equipment maintenance.

1.2  This Agreement does not cover Equipment, or versions of Equipment, which are no longer offered by DocuSign for general commercial availability (otherwise known as “End Of Life” or “EOL”). In the event any Equipment is categorized as EOL Equipment during the current Term, DocuSign will continue providing support until expiration of the then current Term. Subscribers are encouraged to contact their DocuSign sales representative to determine whether any of Subscriber’s Equipment has reached its EOL.  DocuSign’s receipt of Support and Maintenance fees for Equipment that has already reached its EOL does not constitute an agreement to extend this Term of coverage. Any support offered by DocuSign for Products that have already reached their EOL will be offered at DocuSign’s sole discretion and if offered will be provided “as is” without warranty of any kind related to the service(s) and/or Product(s).

1.3  The services and remedies offered under this Agreement are exclusive of all other remedies for Equipment defects which may arise during the Term of coverage.   All services and remedies are offered on a “reasonable commercial efforts” basis, and DocuSign does not guarantee that all Equipment defects can be remedied.

 2.              CUSTOMER SUPPORT AND TECHNICAL SUPPORT

 2.1   DocuSign Customer Support provides assistance to Subscriber as specified in Section 2.2.utilizing DocuSign’s team of experienced technical support professionals online and/or by phone. DocuSign will provide prompt response and escalated support during Subscriber’s business day, with specific time coverage described below.

2.2  CoSign Support Deliverable Description:

• Support portal and Knowledge Base – Search for answers and submit Support requests

• DocuSign Community - Q&A community staffed by DocuSign employees and power users of our product

• Online Case Submission and Management – Submit cases online for assistance from our Support Team

• Phone or Email Support - Talk to our DocuSign Support Team for technical CoSign questions, billing inquiries and account support. Support hours: 8:00 AM - 6:00 PM Monday-Friday US Central Standard Time, and 8:00 AM - 6:00 PM Sunday-Thursday Central European Time.
 Escalated response via your DocuSign account manager: 8 hour phone and/or email response.

• Escalated Tier 2 Support – Direct access to senior technical resource as part of standard support escalation process.

• CoSign Integration Support (CoSign Integration Tools)

2.3            An account manager will be assigned to Subscriber to provide support through DocuSign’s online case submission and management tools that allows Subscriber to track questions through resolution.  

 3.               EQUIPMENT MAINTENANCE AND WARRANTY

 3.1  Limited Warranty. DocuSign’s limited Equipment warranty is in place for the period determined by the CoSign Service Support and Maintenance plan purchased by Subscriber under an applicable Order Form (“Equipment Warranty Period”). The Equipment warranty covers Equipment purchased from DocuSign or DocuSign-authorized reseller.

Equipment warranty does not cover:

• Damage resulting from improper handling, lack of care or accidents

• Any consequential damage resulting from failure to use or maintain the Equipment in accordance with the Equipment’s documentation

3.2  DocuSign’s sole responsibility is, at DocuSign’s option, the repair, correction of error, or replacement of the defective hardware Equipment. Warranty automatically becomes void in the event of servicing or repair of the Equipment by any person not duly authorized by DocuSign.

In the event of Equipment failure, Subscriber shall first notify DocuSign’s account manager. Subscriber shall make all reasonable efforts to troubleshoot and document the Equipment failure in accordance with DocuSign’s recommendations prior to requesting replacement or repair of any Equipment covered under this Agreement.  Subscriber’s failure to implement DocuSign’s recommendations may result in limited services, denial of services or additional costs incurred by the Subscriber under this Agreement.

3.3  Equipment Returns for Repair. Prior to return of Equipment, the Subscriber is obligated to first obtain a Return Material Authorization (RMA).  If hardware components are deemed faulty by DocuSign, DocuSign will issue a RMA and return instructions. Subscriber will ship the faulty hardware with the RMA# to DocuSign, and upon receipt DocuSign will then ship a repaired or replacement unit to the Subscriber within ten (10) business days.

DocuSign shall arrange and pay for all costs of returning the Equipment to DocuSign.  For Equipment destined outside the United States, Subscriber shall also pay for all costs incurred in returning the Equipment to Subscriber’s location, including transportation, import fees, duties and taxes, if any.

3.4  Equipment Warranty Exclusions.  All the above warranties are contingent upon proper use of the Equipment in accordance with DocuSign’s user documentation.  These warranties will not apply (i) if adjustment, repair or parts replacement is required because of accident, unusual physical, electrical or electro-magnetic stress, negligence of Subscriber, misuse, failure of electric power environmental controls, transportation, not maintained in accordance with DocuSign specifications, or abuses other than ordinary use; (ii) if the Equipment has been modified by Subscriber or has been repaired or altered outside DocuSign’s factory, unless DocuSign specifically authorizes such repairs or alterations; (iii) where DocuSign serial numbers, warranty data or quality assurance decals have been removed or altered. In no event shall DocuSign be liable for any breach of warranty in an amount exceeding the total amount payable by Subscriber to DocuSign under the Order Form to which the CoSign Service(s) relates.  No person, including any dealer, agent or representative of DocuSign is authorized to assume for DocuSign any other liability on its behalf except as set forth herein. Non-payment of any invoice rendered within the payment terms of this Agreement automatically cancels any warranty or guarantee stated or implied.