These Terms and Conditions, along with any fully-executed Order Form(s) entered into between DISCO and the Customer, comprise the agreement (“Agreement”) between the parties, effective as of the date both parties execute an Order Form (“Effective Date”). These Terms and Conditions may be amended from time to time, but the Agreement with Customer shall constitute the Terms and Conditions in effect as of the date of execution of any applicable Order Form. Except as stated in Section 1(b), to the extent there is any conflict or inconsistency between (i) these Terms and Conditions and (ii) any of the Order Forms, the provisions of these Terms and Conditions (excluding the Order Forms) shall take precedence.
Features. DISCO will provide Customer access to the software stated in the Order Form(s) (“Software”) entered into between DISCO and Customer. The features and user interface of the Software are described at www.csdisco.com and may be changed or updated by DISCO during the term of this Agreement.
For purposes of this Agreement, “Confidential Information” includes without limitation data, and technical, administrative, training, or business information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, including information about the party’s and its clients, customers, properties, employees, finances, businesses and operations. Additionally, Confidential Information shall include all notes, analyses, compilations, studies, interpretations or other documents prepared by the Receiving Party or any of its Representatives, as defined herein, which contain, reflect or are based upon, in whole or in part, the information furnished to the Receiving Party or any of its Representatives by the Disclosing Party or any of its Representatives. Confidential Information will not include information that: (i) is now or thereafter becomes generally known or available to the public, through no act or omission on the part of the Receiving Party or its Representatives; (ii) was known by the Receiving Party or any of its Representatives prior to receiving such information from the Disclosing Party and without restriction as to use or disclosure; (iii) is rightfully acquired by the Receiving Party or any of its Representatives from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (iv) is independently developed by the Receiving Party without use of or reference to any Confidential Information of the Disclosing Party.
DISCO Support and Services. DISCO will provide Customer support and services as stated in the Order Form(s) (“Services”) entered into between DISCO and Customer. Each party consents to the recording of telephone conversations involving DISCO customer support personnel in connection with this Agreement. Each party also agrees to obtain any necessary consent of, and give any necessary notice of such recordings to, its relevant personnel.
Price. Customer will pay DISCO the amounts stated in an Order Form at the times stated therein, plus interest at 1.5% per month on past due amounts, provided, however, that Customer shall not be required to pay interest at more than the maximum rate allowed by law. DISCO may suspend all performance if any invoice is not paid in full when due. Following suspension, (i) Customer will not have access to its data or the ability to archive or download its data until past-due amounts are paid in full; (ii) DISCO will consider Customer’s data as abandoned and may dispose of part or all of the data after suspension; and (iii) charges will continue to accrue while DISCO holds Customer’s data and Customer’s obligation to pay those charges will survive suspension. For the avoidance of doubt, all pricing information set forth in this Agreement shall constitute DISCO Confidential Information.
Each party represents and warrants to the other party that: (i) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (ii) it has the right, power and authority to enter the Agreement and to grant the rights and licenses granted hereunder and to perform all of its obligations hereunder; (iii) the execution of any other agreement incorporating this Agreement by its representative whose signature is set forth therein has been duly authorized by all necessary corporate or organizational action of the party; (iv) when any agreement incorporating this Agreement is executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party unless otherwise altered by the terms of a subsequent agreement, enforceable against such party in accordance with its terms; and (v) it will abide by all applicable federal, state and local laws and regulations with respect to its rights, duties, and obligations as a party in connection with the Agreement.
DISCO Indemnity. DISCO will have the obligation and right at its expense to defend any claim, suit or proceeding brought against Customer, its affiliates or their officers, directors, employees or agents so far as it is based on a third-party claim that the Software or Documentation supplied by DISCO infringe a United States copyright, trademark or trade secret issued as of the Effective Date, provided that DISCO will have no indemnity obligation or other liability hereunder arising from: (i) Customer's negligence, breach of the Agreement, or alteration of the Software or Documentation as provided by DISCO; (ii) Software or Documentation that are based upon information, design, specifications, directions, instruction, software, data, or material not furnished by DISCO; or (iii) combination of the Software or Documentation with any materials, products or services not provided by DISCO. If such a claim is or is likely to be made, DISCO will, at its own expense and sole discretion, exercise one or the following remedies: (iv) obtain for Customer the right to continue to use the Software or Documentation consistent with this Agreement; (v) modify the Software or Documentation so they are non-infringing and in compliance with this Agreement; (vi) terminate this Agreement with respect the applicable Software or Documentation without liability for such termination other than the ongoing indemnity obligation hereunder. The foregoing states the entire obligation of DISCO and its suppliers, and the exclusive remedy of Customer, with respect to infringement of proprietary rights.
For Convenience. Unless an applicable Order Form identifies a specific term of the Agreement in months or years, either party may terminate this Agreement at any time by giving 30 days’ written notice of termination to the other party.
Assignment. Neither party may assign or transfer this Agreement or any of its rights or delegate any of its obligations hereunder whether by operation of law or otherwise to any other party without the prior written consent of the other party, which consent shall not be unreasonably withheld, except that a party may assign this Agreement without such consent to a successor in interest by way of merger, acquisition, or sale of all or substantially all of that party’s assets. The terms of this Agreement shall be binding upon assignees.