1. INTRODUCTION
1.1 Scope. These additional terms and conditions (the “eAsset Management Licensing Terms”) govern Customer’s use of those OnDemand Services identified in the Sales Order referencing these terms as the eAsset Management Service and all Professional Services related thereto. These eAsset Mangement Licensing Terms are fully incorporated and integrated into the Agreement, along with the Sales Order and the EchoSign Licensing Terms. In the event of a conflict between these eAsset Management Licensing Terms and the EchoSign Licensing Terms, the terms and conditions of these eAsset Management Licensing Terms shall control for purposes of the eAsset Management Service and all related Professional Services.
1.2 Product Description of the eAsset Management Services. The eAsset Management Service is the OnDemand Service provided for in these eAsset Management Licensing Terms and hosted by eOriginal, Inc. (“eOriginal”) as alliance partner to Adobe, and are implemented for Customer via an integration between the EchoSign Service and the eAsset Management Service. The eAsset Management Service enables Users to administer and manage eDeposits stored in the Customer-dedicated partition of the eAsset Management Service’s vault. The eAsset Management Service may include Distributed Code enabling additional functionality and integration with third-party services.
1.3 Customer Usage and Consent. Customer shall use the eAsset Management Service solely for its own business purposes and will not make its passwords available to a third party, reverse engineer any part of the eAsset Management Service or resell or sub-license the eAsset Management Service.
1.4 Support. Adobe will provide to Customer’s Technical Contacts ongoing eAsset Management Service administration and support services as more fully described in the Service Standards, the Agreement and the Sales Order. Customer will provide eAsset Management Service support services directly to Users other than Customer’s Technical Contacts.
2. PAYMENTS AND FEES
2.1 Payment Terms and Delivery. The provisions of Section 2 of the EchoSign Licensing Terms shall apply with respect to fees listed in the Sales Order as applicable to the eAsset Management Service and related Professional Services.
2.2 Suspension. Adobe may direct eOriginal to suspend access to, or restriction provision of, the eAsset Management Service: (i) by any User upon any such User’s material breach of the eAsset Management Service’s Documentation or if continued use by such User presents a threat to the security of other users of the eAsset Management Service or their confidential or proprietary information, or (ii) by Customer upon Customer’s material breach of these eAsset Management Licensing Terms or the eAsset Management Service’s Documentation.
3. CONFIDENTIALITY
3.1 Binding on eOriginal. As alliance partner to Adobe, eOriginal shall be deemed a Recipient or Discloser, as applicable, with respect to the exchange of Confidential Information, and Adobe shall cause eOriginal to abide by the Confidentiality provisions of the EchoSign Licensing Terms, with respect to eOriginal’s provision of the eAsset Management Service and all Professional Services related thereto.
4. TERM, TERMINATION, AND SUSPENSION
4.1 Term and Renewal. These eAsset Management Licensing Terms apply to the eAsset Management Service and all related Professional Services set forth in the Sales Order beginning on the Effective Date.
4.2 Termination. These eAsset Management Licensing Terms shall automatically terminate upon any termination of the Agreement. Customer or Adobe may separately terminate these eAsset Management Licensing Terms in the same manner in which it can terminate the Agreement; provided that the notice of termination shall indicate that the terminating party wishes to terminate only these eAsset Management Licensing Terms. Termination by either party of these eAsset Management Licensing Terms shall effect a termination of only the eAsset Management Service, unless the notice expressly states that the party wishes to terminate the Agreement.
4.3 Effect of Termination. In addition to the provisions of Section 4.3 of the EchoSign Licensing Terms:
(A) Winding Down. Upon any termination of these eAsset Management Licensing Terms other than due to a breach which compromises the integrity of the eAsset Management Service or failure to pay fees, Customer may elect in writing prior to the effective date of termination to extend the termination date and continue using the eAsset Management Service for a period not longer than sixty (60) days from the original termination date (the “Winding Down Period”). If such election is made, Customer may use the eAsset Management Service solely for purposes of exporting eDeposits and other Customer Data from the eAsset Management Service. In no event shall Customer use the Winding Down Period for purposes of uploading new eDeposits onto the eAsset Management Service. If Customer elects to wind down in accordance with this Subsection, these eAsset Management Licensing Terms and all licenses and rights to use of and access to the eAsset Management Service shall automatically terminate at close of business on the last day of the Winding Down Period and the provisions of subsection 4.4 below shall apply.
(B) If No Winding Down. If these eAsset Management Licensing Terms are terminated for a breach which compromises the integrity of the eAsset Management Service or failure to pay fees, then Customer shall not be entitled to elect the benefit of the Winding Down Period. Upon any such termination of these eAsset Management Licensing Terms, all licenses and rights to use of and access to the eAsset Management Service shall automatically terminate and any fees that are unpaid as of the effective date of termination will be immediately due and payable. If Customer has not exported all of its eDeposits and Customer Data from the eAsset Management Service prior to the date of termination, Customer may request that such eDeposits and Customer Data be exported to external paper or electronic media. Such transition services are provided at then-current time and materials rates. Adobe may, in its discretion, require advance payment and payment of all outstanding fees owed in connection with the Agreement.
(C) Option to Continue eAsset Management Service. If Customer is current in payment of all fees due to Adobe, upon any termination of these eAsset Management Licensing Terms Customer may elect to continue to receive the eAsset Management Service by entering into a separate written agreement directly with eOriginal on the same payment terms.
(D) Survival. The termination or expiration of these eAsset Management Licensing Terms shall not affect any sections of the Agreement which by their nature survive termination or expiry, including the sections that deal with the following subject matters: definitions, payment and fees, confidentiality, term and termination, intellectual property, license compliance, limitation of liability, privacy, content monitoring and the “General Provisions” section of the Agreement.
5. INTELLECTUAL PROPERTY
5.1 Ownership. Solely for purposes of the Agreement and as between Customer and Adobe, the eAsset Management Service shall be deemed Adobe Technology. eOriginal will continue to own all intellectual property rights in and to the eAsset Management Service and all components thereof, and the technology used to provide the eAsset Management Service (including software tools, algorithms, software (in source and object forms), user interface designs, architecture, toolkits, plug-ins, objects, network designs, processes, know-how, methodologies, trade secrets, Distributed Code, Reports, Documentation, and any related intellectual property rights throughout the world), and any of their derivatives, modifications, improvements, enhancements or extensions, whenever developed . As between Customer and eOriginal, Customer owns all rights, title, and interest in the Customer Data, subject to eOriginal’s underlying intellectual property rights in the eAsset Management Service and its related Reports, Documentation and other technology.
5.2 No Modifications. Customer will not modify, create derivative works of, adapt, translate, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code in the technology or software underlying the eAsset Management Service.
6. LICENSE AND RESTRICTIONS
6.1 License Grant.
(A) In addition to the licenses granted in the EchoSign Licensing Terms, subject to the terms of this Agreement and Customer’s payment of the fees, Adobe grants Customer, during the License Term, a non-transferable, non-exclusive and worldwide limited license to: (1) permit Users to access the eAsset Management Service through Command Center and/or Distributed Code using authorized user names and passwords solely in connection with (a) the administration of eDeposits on behalf of Customer and (b) as to Technical Contacts, the provision of eAsset Management Service support to other Users; and (2) install, implement and use the Distributed Code, and use, disclose, display, copy and reproduce the eAsset Management Service’s Documentation, each solely in connection with the rights granted in (2) above.
(B) Nothing in this Agreement grants Customer any express or implied license to use, distribute, modify, copy, link or translate the Distributed Code, other than for Customer’s use of the eAsset Management Service.
6.2 License Restrictions. The license restrictions set forth in Section 6.2 of the EchoSign Licensing Terms shall apply with respect to Customers use of the eAsset Management Service, its Distributed Code, Reports and Documentation.
6.3 Outsourcing and Third-Party Access. Except as expressly permitted in Section 6.3 of the EchoSign Licensing Terms, Customer shall not sublicense, rent or otherwise allow use of any portion of the eAsset Management Service by third parties or otherwise use the eAsset Management Service to process the data of third parties or to support Customer’s activities in any service bureau capacity.
6.4 License Grant from Customer. The licenses granted by Customer to Adobe in Section 6.4 of the EchoSign Licensing Terms shall also be deemed granted to eOriginal solely for purposes of providing and operating the eAsset Management Service.
6.5 License Compliance. The eAsset Management Service is not licensed or billed on a per user basis. Notwithstanding Section 6.6 of the EchoSign Licensing Terms, Customer’s use of the eAsset Management Service is limited to the maximum number of eDeposits indicated in the Sales Order and is subject to the overage fees set forth therein.
7. PRIVACY, INFORMATION SECURITY, AND COMPLIANCE
7.1 Privacy and Compliance. The provisions of Section 7 of the EchoSign Licensing Terms shall apply to Customer’s use of the eAsset Management Service.
7.2 Storage and Retention of Customer Data. Notwithstanding any terms to the contrary in the EchoSign Licensing Terms, Adobe will cause eOriginal to retain in the eAsset Management Service vault at all times during the Licensing Term all eDeposits and Customer Data uploaded by Customer onto the eAsset Management Service and not destroyed or exported by Customer using the functionality of Command Center or the Distributed Code. Such eDeposits and Customer Data shall not be deleted by Adobe or eOriginal except as otherwise provided in these eAsset Management Licensing Terms unless Customer instructs Adobe to cause eOriginal to do so. Audit Logs created and maintained by the eAsset Management Service are retained indefinitely by eOriginal.
7.3 eOriginal Security. Adobe will cause eOriginal to maintain commercially reasonable administrative, physical, and technical safeguards to help protect the security, confidentiality, and integrity of Customer Data and the eDeposits.
8. INDEMNIFICATION
8.1 Adobe’s Duty to Indemnify. The provisions of Sections 8.1 through 8.4 of the EchoSign Licensing Terms shall also apply with respect to any third-party Claim against Customer during the License Term to the extent the Claim alleges that:
(A) the eAsset Management Service directly infringes the third party’s patent, copyright or trademark; or
(B) that eOriginal has misappropriated the third party’s trade secret (“Infringement Claim”).
For purposes of such provisions, the eAsset Management Service shall be considered Indemnified Technology.
8.2 Third-Party Claims. In addition to the indemnification obligations in Section 8.5 of the EchoSign Licensing Terms, Customer must defend any Claims which arise in connection with any failure by Customer or any User to comply with these eAsset Management Licensing Terms or to use the eAsset Management Service in accordance with the applicable Documentation and these eAsset Management Licensing Terms. Customer will indemnify Adobe, eOriginal and their Affiliates against their Losses arising out of or in connection with the Claim. The Limitation of Liability section of the EchoSign Licensing Terms does not apply to Customer’s liability or obligations under this Third-Party Claims section.
9. LIMITED WARRANTY, REMEDIES, AND DISCLAIMERS
9.1 Adobe Warranty. Adobe warrants that the eAsset Management Service as delivered to Customer will substantially conform to its applicable Documentation during the License Term to the extent the eAsset Management Service constitutes Indemnified Technology. Customer must notify Adobe of a claim under this warranty within 30 days of the date on which the condition giving rise to the claim first appeared. Adobe further warrants that the eAsset Management Service include functionality allowing the Customer, with respect to eDeposits uploaded onto the eAsset Management Service from the EchoSign Service, to materially comply with the provisions of the Uniform Commercial Code Article 9-105 and its requirements for managing electronic chattel paper as transferable digital assets including the ability to manage and securely maintain a single authoritative copy of each such eDeposit that is unique and readily identifiable, and to materially comply with the provisions of any applicable Uniform Electronic Transactions Act and its requirements for managing electronic contracts as transferable records. The foregoing warranty shall not apply in the following circumstances: (i) if the eAsset Management Service is used by Customer or any User other than in accordance with the applicable Documentation or these eAsset Management Licensing Terms; (ii) if the warranty breach is caused by, or is contributed to by, Customer or any User; or (iii) if the warranty breach is caused by software other than that used by Adobe or eOriginal to provide the eAsset Management Service or the EchoSign Service.
9.2 Remedy and Disclaimer. Sections 9.2 through and including 9.5 of the EchoSign Licensing Terms shall apply with respect to the eAsset Management Service.
10. LIMITATION OF LIABILITY
10.1 Limitation of Damages. In addition to the limitations provided in Section 10 of the EchoSign Licensing Terms, the maximum aggregate liability of each Party for each and all Claims (individually and together) under or relating to these eAsset Management Licensing Terms or its subject matter is limited to an amount equal to the aggregate of the fees that must be paid by Customer under this Agreement for the eAsset Management Service during the 12 months before the initial Claim. eOriginal is not, and shall not be, directly liable to Customer, or to any User, under these eAsset Management Licensing Terms for any actual, direct, special, indirect, incidental, exemplary, punitive, or consequential damages of any kind (including legal fees and expenses), whether the related claim is under theory of contract, tort (including negligence), strict liability, or otherwise, even if eOriginal has been advised of the possibility of such loss or damage.
11. GENERAL PROVISIONS
11.1 Governing Law; Venue. The Parties expressly agree that Section 16 of the Uniform Electronic Transactions Act proposed by the National Conference of Commissioners on Uniform State Laws shall govern for questions and issues related to eDeposits as transferable records.
11.2 Notices. A copy of all notices required or permitted to be delivered to Adobe under the Agreement with regards to these eAsset Management Licensing Terms or the eAsset Management Service shall also be provided to eOriginal care of: eOriginal, Inc., 351 W. Camden Street, Suite 800, Baltimore, MD 21201, with a copy to [email protected].
12. DEFINITIONS
For purposes of these eAsset Management Licensing Terms, and their interpretation in conjunction with the EchoSign Licensing Terms and the Agreement, the following terms shall have the meanings specified below:
12.1 “Adobe Technology” includes Adobe Technology (defined in the EchoSign Licensing Terms) and the technology underlying the eAsset Management Service.
12.2 “Affiliate” includes Affiliates (defined in the EchoSign Licensing Terms) and, for eOriginal, any other entity that controls, is controlled by or under common control with, eOriginal.
12.3 “Audit Log” includes the Audit Log (defined in the EchoSign Licensing Terms) and that certain additional information recorded by the eAsset Management Service regarding the management of, and access to, a particular eDeposit, including without limitation: (i) when any User accessed the eDeposit; (ii) the owner of the eAsset Management Service vault partition in which such eDeposit is maintained; (iii) when such eDeposit was deposited into the eAsset Management Service; (iv) any transfer of ownership or control of such eDeposit; and (v) when such eDeposit is exported from the eAsset Management Service.
12.4 “Command Center™” means that separate user interface provided as part of the eAsset Management Service which contains the following functionality: vault user authentication, session management and access control; Post-closing management by Customer of eDeposits; View, edit, search, retrieval, and print a copy of eDeposits; Certified Print®, Paper Out® export ability and destruction of eDeposits; and transfer control/ownership of eDeposits and documents therein.
12.5 “Confidential Information” includes Confidential Information (defined in the EchoSign Licensing Terms) disclosed by eOriginal to Recipient in the performance of the eAsset Management Service.
12.6 “Customer Data” includes Customer Content (defined in the EchoSign Licensing Terms) and any such information or material that is provided to eOriginal or otherwise uploaded onto the eAsset Management Service.
12.7 “Distributed Code” includes Distributed Code (defined in the EchoSign Licensing Terms) and APIs or other code provided by eOriginal on behalf of Adobe for use of the eAsset Management Service.
12.8 “Documentation” includes Documentation (defined in the EchoSign Licensing Terms) and the technical user manual describing the features and functionalities of the eAsset Management Service.
12.9 “eDeposit” means one or more Electronic Documents fully executed using the EchoSign Service which Customer elects to upload onto the eAsset Management Service, and those fully executed electronic contracts accepted by Customer from other customers of eOriginal for deposit into Customer’s vault partition on the eAsset Management Service or accepted by Customer from other trusted electronic vaults for upload onto the eAsset Management Service.
12.10 “eOriginal” means eOriginal, Inc., an alliance partner to Adobe and the provider of the eAsset Management Service.
12.11 “On Demand Services” includes OnDemand Services (defined in the EchoSign Licensing Terms) and the eAsset Management Service if identified in the Sales Order.
12.12 “Professional Services” includes Professional Services (defined in the EchoSign Licensing Terms) and those consulting, training, implementation or technical services provided by eOriginal on behalf of Adobe as set out in the Sales Order.
12.13 “Report” includes Reports (defined in the EchoSign Licensing Terms) and any graphical or numerical display of Customer Data that contains eOriginal’s proprietary design, look and feel, which is generated by the eAsset Management Service, including eAsset Management Service Audit Logs (as defined herein).
12.14 “Sales Order” means the Sales Order (defined in the EchoSign Licensing Terms) which references these eAsset Management Licensing Terms.
12.15 “Service Standards” means those service level standards with regards to performance of the eAsset Management Service available at https://www.eoriginal.com/support/sla.html, as updated from time to time.
12.16 “Technical Contacts” means those Users trained by Adobe and designated by Customer as Customer’s sole contact persons for purposes of obtaining eAsset Management Service support and administration services.
12.17 “User” means those Users (defined in the EchoSign Licensing Terms) of Customer whom Customer authorizes to obtain access and use of Command Center.
(V.20141008) © 2013-2014 eOriginal, Inc. Confidential and Proprietary. All rights reserved.
