Last Updated: December 31st, 2019
These terms and conditions and any other terms referred to herein, including the Data Protection Addendum and any Order Form (“Terms”) are between the person or organization (“Customer” or “you”) subscribing to the Services described below which are provided by SecureDocs, Inc. (“SecureDocs,” “our,” or “we”). By subscribing to, or accessing and using the Service, you represent that you have the authority to bind the Customer, and you agree to be bound by these Terms which govern access and use of our Services. For the purpose of these Terms, “you” applies to the company or other entity of which you are an employee, consultant or agent. If you do not agree to these Terms, you should not use any of the Services. The “Effective Date” of these Terms is the date you first access the Service. We reserve the right to update and change any or all of these Terms, and you are responsible for regularly reviewing the most current version of these Terms, which will be indicated by the “Last Updated” date above. Your continued use of the Services constitutes your consent to be bound by the changes and the then-current Terms.
We offer the SecureDocs Service, ContractWorks Service, and Electronic Signature (each as defined below and collectively the "Services") Services through our proprietary software-as-a-service platform that we host for our customers. You agree to use the Services in compliance with the terms and conditions of these Terms. We reserve the right to enhance or modify features of the Services at any time, but we will not materially reduce core functionality unless we provide you with prior written notice. Any additional Services you order will be subject to these Terms. For the purpose of these Terms, “Content” means any of your,
your users’, or recipients’ files, eContract, documents, and other information that is uploaded to your Service account for storage, or that is used, presented, or shared with third parties in connection with the Service.
1.1. SecureDocs. The SecureDocs service lets users securely store and access Content in a virtual data room (“SecureDocs Service”).
1.2. ContractWorks. The ContractWorks contract management service lets users securely store, share, and tag Content online and generate reports (“ContractWorks Service”).
1.3. Electronic Signature Feature. The Services may also include access to Electronic Signature, our hosted online electronic signature service (“Electronic Signature”) that allows Authorized Users to electronically send, sign, track, and manage documents that you or your Authorized Users upload or transmit for signing (“eContract”). Any use of Electronic Signature is subject to the additional terms set forth below.
2. Customer Support.
Provided you are current in payment of all undisputed fees, we will use commercially reasonable efforts to provide technical support services to you and your authorized users at no additional charge. A client services representative will be assigned to your support issues. Our standard support is available 24 x 7, excluding major U.S. holidays: Memorial Day, Independence Day, Labor Day, Thanksgiving, Christmas, and New Year’s Day. You may contact customer support by emailing us at email@example.com for the SecureDocs Service, or firstname.lastname@example.org for the ContractWorks Service.
Provided you are current in payment of all undisputed fees we will provide remote, live, or recorded training sessions to your authorized users at no additional charge. We also make tutorials available on the Help and Training section of our website. Please contact us at email@example.com for the SecureDocs Service, or firstname.lastname@example.org for the ContractWorks Service for more information about training.
4. Your Rights and Restrictions.
4.1. Grant of Rights. Subject to these Terms, we grant you a non-exclusive, nontransferable, limited right to use the Service to which you have subscribed solely for business and professional purposes.
4.2. Your Responsibilities.
(a) You are solely responsible for (i) all use of the Services by you, your authorized or invited users, and any individual or organization that receives, accepts, signs, or transmits an eContract through Electronic Signature (together, “Authorized Users”); (ii) the accuracy, legality, and appropriateness of all Content that you submit to the Service; (iii) providing notices or obtaining consent from your Authorized Users, as legally required in connection with the Services; (iv) preventing unauthorized access to, or use of, the Service; (v) compliance with all applicable laws in using the Service, and as may be applicable to the Content and use of the Services by you and your Authorized Users.
(b) It is your responsibility to remove access to the Services if the authorized status of a user or designated employee changes. If your affiliates use our Services, you warrant that you have the authority to bind those affiliates and you will be liable if your affiliates do not comply with these Terms.
(c) It is your responsibility to ensure that you comply with the terms as set out in our Data Protection Addendum where (i) SecureDocs processes personal data on your behalf where you are established in the European Economic Area or (ii) where SecureDocs processes personal data of data subjects located in the European Economic Area on your behalf.
4.3 Restrictions. By using our Services, you agree on behalf of yourself and your Authorized Users, not to (i) disassemble, reverse engineer, modify, or create derivate works of any Services; (ii) sell, distribute, or otherwise make the Services available to any third party; (iii) use the Services in violation of these Terms or applicable laws or regulations; (iv) circumvent or disable any security features or other aspect of the Services or, in any manner, attempt to gain unauthorized access to the Services, systems, or networks; (v) use the Services to transmit harassing, fraudulent, or unlawful material, or to store or transmit material in violation of third-party privacy rights; (vi) use the Services to store or transmit any material that may infringe the intellectual property or other rights of third parties; or (vii) knowingly or negligently use the Services in a way that abuses or disrupts our networks, user accounts, or the Services. We may suspend your access to the Services or terminate these Terms if you or your Authorized Users are using the Services in a manner that is likely to cause us harm.
4.4 Use Limitations. You understand that the Services are not meant as a backup solution, replacement for a file server, or to store non-business documents such as systems software or large media files. You are responsible for maintaining backup copies of your Content. We reserve the right to place reasonable storage or bandwidth limits on your account or the Services if we reasonably determine that you are misusing the Services.
4.5 Reservation of Rights. No other rights are granted except as expressly set forth in these Terms. The Services are provided on a subscription basis, and these Terms are not a sale, and do not convey any rights or ownership in, or to, any of the Services or underlying software. You acknowledge that we or our licensors retain all proprietary right, title, and interest in the Services, our name, logo or other marks, and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto.
5. Your Content and Data.
5.1. Your Content. You retain all rights to your Content, and we do not own, license, or have control over your Content. You grant us a non-exclusive, worldwide, royalty-free, license to use, modify, reproduce, and distribute your Content, only as required to provide the Services to which you have subscribed, and you warrant that: (i) you have the right to grant us the license, and (ii) none of your Content infringes on the rights of any third party. Each party agrees to apply reasonable technical, organizational, and administrative security measures to keep Content protected in accordance with industry standards. SecureDocs is not responsible or liable for the deletion, destruction, or loss of any of your Content except to the extent caused by our gross negligence or intentional misconduct. The Services may provide functionality that enables you to control who may access the Content that you store in the Services; however, we will not view, access, or process any of your Content, except as required: (x) to the extent necessary to provide the Services, or (y) to comply with applicable law, or governmental request. Notwithstanding anything to the contrary, this Section expresses the entirety of our obligations with respect to your Content.
5.2. Migration of Data. You and SecureDocs will determine in advance the amount of data, number of data sources, and other factors applicable to the data migration process. You are responsible for providing materials and reasonable assistance to enable us to complete the migration of your data.
6. Electronic Signature Additional Terms.
The additional terms below apply to any eContract that you or your Authorized Users upload or transmit using Electronic Signature. All eContracts that may be stored on our system are maintained in an encrypted form.
6.1. Electronic Contracts. You acknowledge and agree that we are not a party to any eContract processed through the Services, and we make no representation or warranty about the transactions intended to be effected by any eContract or the viability of electronic signatures for your organization or your specific jurisdiction. You are solely responsible for the content, quality, format, and enforceability of any eContract you submit using Electronic Signature.
6.2. Exceptions from Electronic Signature Laws. Certain types of agreements and documents may be excepted from electronic signature laws or may be subject to additional regulations specific to electronic signatures and electronic records (e.g. wills and family law agreements). We are not responsible for determining whether any eContract: (i) is subject to an exception from any electronic signature laws; (ii) is subject to any additional laws or regulations for specific types of agreements; or (iii) can be legally formed by electronic signatures.
6.3. Retention of Records. We are not responsible for determining how long any contracts, documents, or other records are required to be retained or stored under any applicable laws, regulations, or legal processes. We are also not responsible for, and have no obligation to produce, any of your eContracts for third parties.
6.4. eContracts and Consumers. You are solely responsible for determining whether a “consumer” as defined in consumer protection or similar laws, is involved in any eContract you transmit using Electronic Signature. We have no obligation or
responsibility for (i) determining whether any transaction involves a “consumer”, (ii) furnishing or obtaining consents or determining whether any consents have been withdrawn; (iii) providing information or disclosures relating to any attempt to obtain consents; (iv) providing legal review of, or correcting any disclosures currently or previously given; or (v) otherwise complying with any specific requirements imposed by law on those eContracts or their formation.
7. Term and Termination.
7.1. Term. The term is set forth in your ordering document (“Order Form”), and will automatically renew for successive terms as set out on your Order Form unless you provide us with written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term. You may provide notice of non-renewal by emailing us at email@example.com, or by calling (866) 700 7975.
7.2. Termination for Cause. Either party may terminate these Terms, an Order Form, or specific Services (i) if the other party breaches its material obligations and fails to cure within 30 days of receipt of written notice, or (ii) if the other party becomes insolvent or bankrupt, liquidated, or is dissolved, or ceases substantially all of its business. We may terminate these Terms immediately in the event of a breach of Section 4 above.
7.3. Effect of Termination. Upon a termination of these Terms, you will (i) immediately discontinue all access and use of the terminated Services and cease to represent in any form that you are a user of the terminated Services. Neither party will be liable for any damages resulting from termination of these Terms or any Services, and termination will not affect any claim arising prior to the effective termination date.
7.4. Handling of Your Data in the Event of Termination. You understand and agree that following expiration or termination of your subscription and provided you are current in payment of all undisputed Fees, we will grant you temporary, limited access to the
terminated Service, not to exceed thirty (30) days, for the sole purpose of permitting you to retrieve your Content.
8.1. Fees. You agree to pay all applicable, undisputed fees for the Services as set forth in the sign-up flow or Order Form ("Fees"). You agree that Fees are non-refundable even if you terminate your subscription early. We reserve the right to update the Fees for Services upon renewal of your subscription based upon our then-current fees. We will notify you of any price changes by emailing you not less than thirty (30) days prior to your renewal. You may order additional Services at any time by entering into another Order Form that will state Fees for those additional Services.
8.2. Late Payments. You must notify us of any fee dispute within fifteen (15) days of the invoice date, and once resolved, you agree to pay those fees within 15 days. If you do not pay undisputed Fees, we may suspend or terminate your Services, and you agree to reimburse us for all reasonable costs incurred in collecting delinquent amounts.
8.3. Taxes. You are responsible for all applicable sales, use, value-added, withholding, and similar taxes imposed by any governmental entity based on the Services, except for taxes based on our net income. If you do not satisfy your tax obligations, you agree that you will be required to reimburse us for any amounts paid on your behalf. In all cases, you will pay the amounts due under these Terms in full without any right of set-off or deduction.
9. Representations and Warranties.
9.1. Our Representations and Warranties. We represent and warrant that (i) the Services will conform to the documentation provided for the Services, and (ii) the Services will comply in all material respects with all applicable laws.
9.2. Your Representations and Warranties. You represent and warrant that you (i) have all rights to the Content necessary for you to use the Service to transmit, store, or process such Content, and (ii) your use of the Services will comply in all material respects with all applicable laws.
9.3. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 9, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE, AS TO ANY MATTER, INCLUDING THOSE OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, THEREFORE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMERS LOCATED IN THOSE JURISDICTIONS. WE DO NOT REPRESENT OR WARRANT THAT (i) USE OF OUR SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE, (ii) OUR SERVICES WILL MEET YOUR REQUIREMENTS, OR (iii) ALL ERRORS OR DEFECTS WILL BE CORRECTED. THE SERVICES ARE PROVIDED TO YOU ON AN "AS IS" BASIS AND YOUR USE OF SOFTWARE AND SERVICES IS AT YOUR OWN RISK.
WE DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SERVICES WILL SATISFY OR ENSURE YOUR COMPLIANCE WITH ANY LEGAL OBLIGATIONS, LAWS OR REGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE SERVICES AND CONTENT IS IN ACCORDANCE WITH APPLICABLE LAW.
OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE, AT OUR SOLE OPTION AND SUBJECT TO APPLICABLE LAW, TO PROVIDE CONFORMING SERVICES, OR TO TERMINATE THE NONCONFORMING SERVICES OR THE APPLICABLE ORDER FORM, AND PROVIDE A PRO-RATED REFUND OF ANY PREPAID FEES FROM THE PERIOD OF NONCONFORMANCE THROUGH THE END OF THE REMAINING TERM.
10. Confidential Information.
Neither party shall disclose to any third party any information or materials provided by the disclosing party under these Terms and reasonably understood to be confidential ("Confidential Information"), or use Confidential Information in any manner other than to perform its obligations under these Terms. These restrictions do not apply to any information that (i) is in the public domain or already in the receiving party's possession, (ii) was known to the receiving party prior to the date of disclosure or becomes known to the receiving party thereafter from a third party having an apparent bona fide right to disclose the information, or (iii) Confidential Information that the receiving party is obligated to produce pursuant to an order of a court of competent jurisdiction or a valid administrative subpoena, provided the receiving party provides the other party with timely notice of such court order or subpoena. This Section 10 will survive termination or expiration of these Terms.
11.1. Our Indemnification. Subject to Section 11.5, we will, at our expense, indemnify and defend you, your employees, officers, and directors, and pay reasonable attorneys’ fees, court costs, damages finally awarded or reasonable settlement costs against any third party claim brought against you alleging (i) that the Service, when used in accordance with these Terms and the applicable documentation infringes upon any valid U.S. patent copyright, trademark, trade secret, or other intellectual property right of any third party ("Infringement Claim"), or (ii) our gross negligence or willful misconduct in disclosing or preventing unauthorized access to personally identifiable information of your customers that is in our possession or control. Our indemnification obligations in this Section 11.1 will survive any termination or expiration of these Terms for the applicable statute of limitations.
11.2. Infringement Cures. If your use of any of the Services is, or in our opinion is likely to be, enjoined as a result of an Infringement Claim, we will, at our sole option and expense, either (i) procure for you and your Authorized Users the right to continue using the Services at no additional charge, or (ii) replace or modify the Services to make their use non-infringing without a material reduction in functionality. If we reasonably believe that options (i) and (ii) are not commercially practicable, we may, upon written notice to you, cancel your access to the Services and refund any prepaid but unused Fees.
11.3. Limitations. We will not be obligated to defend, and have no liability for an Infringement Claim based on (i) your access to or use of the Services following notice of an Infringement Claim, (ii) your modification of any of the Services, (iii) any use of the Service in combination with services and products not provided by us if the such infringement would have been avoided without such modification or combination, or (iv) our compliance with your designs or instructions.
11.4. Your Indemnification. Subject to Section 11.5, you will, at your expense, indemnify and defend us, our employees, officers, and directors, and pay reasonable attorneys’ fees, court costs, damages finally awarded or reasonable settlement costs against any third party claim brought against us alleging (i) that your use of the Service violates applicable law; (ii) that any Content you transmit, store, or process using the Services infringes a valid U.S. patent, copyright, trademark, copyright, trade secret, or other intellectual property right of a third party; or (iii) your gross negligence or willful misconduct. Your indemnification obligations under this Section 11.4 will survive any termination or expiration of these Terms for the applicable statute of limitations.
11.5. Notification and Cooperation. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the indemnifying party in defending the claim. The indemnifying party will reimburse the other party for reasonable expenses incurred in providing any cooperation or assistance. The indemnifying party will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring the indemnified party to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) the other party may join in the defense with its own counsel at its own expense.
11.6. Exclusive Remedy.
This Section 11 states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of claim described in this Section.
12. Limitation of Liability.
EXCEPT WITH RESPECT TO DAMAGES ARISING IN CONNECTION WITH A BREACH OF SECTION 4, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS ARISING OUT OF OR RELATED TO THESE TERMS IS LIMITED TO THE SUM OF THE AMOUNTS PAID FOR THE APPLICABLE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE.
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR INCIDENTAL DAMAGES, WHETHER DIRECT OR INDIRECT, ARISING OUT OF OR RELATING TO (i) LOSS OF DATA, (ii) LOST PROFITS, (iii) LOST OPPORTUNITY, (iv) COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), ARISING OUT OF THESE TERMS, THE PERFORMANCE OR NONPERFORMANCE BY EITHER PARTY OF ITS OBLIGATIONS HEREUNDER, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. SOME JURISDICTIONS DO NOT ALLOW
LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.
13. Personal Information and Privacy Statement.
We will comply with all applicable laws, rules, and regulations relating to our provision of the Services, and you will comply with all applicable laws relating to your use of the Services, which in both cases shall include but not be limited to the obligations as set out in the Data Protection Addendum.
14.1. Assignment. Neither party may assign its rights or delegate its duties under these Terms, either in whole or in part, without the other party’s prior written consent which shall not be unreasonably withheld, unless assigned to a successor in interest, or pursuant to a merger, corporate reorganization, or a sale or transfer of all or substantially all of a party’s assets. These Terms will bind and inure to the benefit of each party’s successors and permitted assigns.
14.2. Choice of Law. These Terms will be governed by the laws of the State of California, without regard to conflict of laws principles. All disputes will be subject to the exclusive jurisdiction and venue of the California state and federal courts for Santa Barbara, California, and the parties consent to the personal and exclusive jurisdiction of these courts.
14.3. Free Trials. If you register for a free trial or promotional offer (“Free Trial”), we will provide you with access to the Services until: (i) the end of the Free Trial period, or (ii) if not specified, 30 days after your initial access to the Services for your Free Trial. Following expiration of the Free Trial, the Services will continue if you enter into an Order Form and pay applicable Fees set forth in the Order Form. During the Free Trial, to the extent permitted by law, we provide the Services “AS IS” and without warranty or indemnity, and all other terms otherwise apply. We may modify or discontinue any trials or promotions at any time without notice, and certain features may require you to upgrade to a paid version of the Services to enable those features.
14.4. E-mail and Notices. Notices must be sent by express delivery service, or delivered by a recognized commercial carrier addressed to the address last designated on these Terms or the Order Form. You agree that we may send you notices and other communications by e-mail. You are responsible for providing us with any updated contact information.
14.5. Entire Agreement; Order of Precedence. These Terms which, for the avoidance of doubt, include the terms found within any Order Form or the Data Protection Addendum, constitute the entire agreement between us relating to the Services, and supersedes all prior and contemporaneous oral and written agreements. If there is a conflict between the terms of this Terms of Service and the terms of the Data Protection Addendum, then the terms of the Data Protection Addendum will prevail. If there is a conflict between the terms of this Terms of Service and the terms of any Order Form, then the terms of the Order Form will prevail, but only for the specific Services described in the Order Form. No terms or conditions stated in your purchase order or in any other documentation you submit will add to or otherwise modify these Terms, and all such terms will be null and void.
14.6. No Representations. No representation will be deemed given or implied from anything said or written in discussions between the parties prior to these Terms. You acknowledge and agree that your agreement to these Terms is not contingent or dependent on the delivery of any future functionality or features not specified in these Terms or any Order Form, or any oral or written, public or private comments made by us regarding future functionality or features.
14.7. Authority to Bind. We are entitled to rely on our reasonable and good faith determination of an individual’s or administrator’s authority to act on behalf of the party entering into these Terms.
14.8. Export. Both parties agree to comply with applicable U.S. export and import laws and regulations. You shall not permit your Authorized Users to access or use the Service in violation of any U.S. export embargo, prohibition, or restriction.
14.9. Publicity. We may not name you as a user of the Service without your written consent.
14.10. Links to Third Party Sites. The Services or our website may include links to third party sites or applications ("Third Party Services"). We are not responsible for and do not endorse Third Party Services. You have sole discretion whether to purchase or connect to any Third Party Services and your use is governed solely by the terms for those Third Party Services.
14.11. General. If any part of these Terms is not enforceable, this will not affect any other terms. Both parties are independent contractors, and nothing in these Terms creates a partnership, agency, fiduciary or employment relationship between the parties. No person or entity not a party to these Terms will be a third party beneficiary, and your Authorized Users will not be third party beneficiaries to your rights under these Terms. Failure to enforce any right under these Terms will not waive that right. Unless otherwise specified, remedies are cumulative. These Terms may be agreed to online, or executed by electronic signature and in one or more counterparts. No party will be responsible for any delay or failure to perform under these Terms due to force majeure events (e.g., natural disasters; terrorist activities, activities of third party service providers, labor disputes; and acts of government) and acts beyond a party’s reasonable control, but only for so long as those conditions persist.