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IMPORTANT – READ CAREFULLY. THESE TERMS AND CONDITIONS (THIS “AGREEMENT”) SET FORTH A LEGAL AGREEMENT BETWEEN YOU AND DISCO AND GOVERN YOUR USE OF DISCO’S PRODUCTS AND SERVICES. BY PLACING AN ORDER OR BY USING DISCO’S PRODUCTS OR SERVICES, YOU REPRESENT AND WARRANT THAT YOU (A) HAVE READ THIS AGREEMENT AND (B) AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT AND ANY ORDER YOU ENTER INTO FROM TIME TO TIME. THE INDIVIDUAL WHO PLACES AN ORDER ON BEHALF OF AN ENTITY REPRESENTS AND WARRANTS THAT THEY ARE AN AUTHORIZED REPRESENTATIVE OF THE ENTITY WITH FULL POWER AND AUTHORITY TO BIND THE ENTITY TO SUCH ORDER AND THIS AGREEMENT.
REGIONAL-SPECIFIC TERMS AND CONDITIONS: IF CUSTOMER’S BILLING ADDRESS IS IN THE UNITED KINGDOM OR THE EUROPEAN UNION, THIS AGREEMENT WILL APPLY AS AMENDED BY THE UK & EU ADDITIONAL TERMS SET FORTH ON EXHIBIT A. IF CUSTOMER’S BILLING ADDRESS IS IN CANADA, THIS AGREEMENT WILL APPLY AS AMENDED BY THE CANADA ADDITIONAL TERMS SET FORTH ON EXHIBIT B. IF THE CUSTOMER’S BILLING ADDRESS IS NOT LOCATED WITHIN ONE OF THE FOREGOING JURISDICTIONS, THIS AGREEMENT WILL APPLY WITHOUT COUNTRY-SPECIFIC TERMS.
THIS AGREEMENT MAY BE MODIFIED FROM TIME TO TIME BY DISCO IN ACCORDANCE WITH SECTION 15(n).
Capitalized terms used but not otherwise defined herein shall have the meanings assigned to such terms on Schedule 1.
(a) Right to Use Technology Offerings. Subject to the terms and conditions of this Agreement and the applicable Order, DISCO grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right, during the Offering Term for the applicable Technology Offerings, to access and use such Technology Offerings and Documentation for the Permitted Use. To the extent any Technology Offerings are designed to run in Customer’s environment, Customer agrees to use such Technology Offerings in object code only and solely to enable the access and use of DISCO’s hosted Technology Offerings in accordance with this Agreement, the applicable Order and the Documentation. Customer may only permit the following Persons to use the Technology Offerings and Documentation pursuant to this Section 2(a) (each, an “Authorized User”): (i) if Customer is a law firm, (A) any personnel of Customer (for the avoidance of doubt, excluding any other law firm or its representatives) for use on behalf of Customer or the applicable End Client and (B) any personnel of any End Client to whom Customer is providing legal representation on a particular matter (but only for use in connection with Customer’s legal representation of such End Client on such matter), and (ii) if Customer is not a law firm, (Y) any personnel of Customer for use on behalf Customer and (Z) any personnel of the law firm(s) representing Customer in a matter, but only for use in providing legal representation to Customer on such matter; provided, in each of the foregoing cases, so long as the Person continues to qualify as an “Authorized User” and the Person has been issued (in accordance with the Technology Offerings’ then-current provisioning process) log-in credentials for access and use of the Technology Offerings. DISCO may also provide access to certain Technology Offerings to a Customer’s opposing party in a litigation matter, opposing counsel or, if Customer is a law firm, co-counsel on a specific matter; provided, that DISCO’s prior written consent shall be required in each such case.
(b) Conditions and Restrictions. Notwithstanding anything to the contrary in this Agreement, the rights granted in Section 2(a) above do not authorize Customer to, and Customer will not (directly or indirectly) and save to the extent allowed by any applicable law which is incapable of exclusion by agreement between the parties: (i) reproduce (except for a number of copies of the Documentation as reasonably required for the use of the Technology Offerings internally by Authorized Users for the Permitted Use), modify, adapt, alter, translate, or create derivative works of the Technology Offerings or the Documentation; (ii) rent, lease, loan, sell, distribute, disseminate, disclose, publish, display, transfer or otherwise make available (including on a time share, application service or outsourced basis) the Technology Offerings to any Person (except to Authorized Users as expressly authorized under this Section 2); (iii) reverse engineer, decompile, disassemble, decode or otherwise attempt to discover the source code, architecture, structure, or underlying technology of the Technology Offerings, except as and only to the extent any part of this restriction is prohibited by applicable law; (iv) use the Technology Offerings or the Documentation for purposes of (A) engaging in any activities in violation of applicable laws, rules or regulations or (B) competitive or benchmarking analysis or for development of a competing product, service or other offering; (v) gain unauthorized access to, interfere with, damage or disrupt any portions of the Technology Offerings (including any servers, databases or accounts), or attempt to do any of the foregoing; (vi) introduce into the Technology Offerings any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful (“Malicious Code”), (vii) remove any copyright or other Intellectual Property Rights notices contained within the Technology Offerings or Documentation, or (viii) use the Technology Offerings in any manner that could disable, overburden, damage, or impair the Technology Offerings or interfere with the authorized use of the Technology Offerings by others.
(c) Authorized Users. Customer acknowledges and agrees that, depending on the specific Technology Offerings subscribed to by Customer and/or the category of Authorized User, Authorized Users may have different access and usage rights to the Technology Offerings. Customer is responsible for all activities that occur as a result of the use of log-in credentials issued to or adopted by Authorized Users. Customer will ensure that its Authorized Users maintain the security and confidentiality of such log-in credentials and will notify DISCO promptly of any unauthorized use of such log-in credentials or any other breach of security known to Customer. Customer will ensure that its Authorized Users comply with the terms and conditions of this Agreement that are applicable to Customer with respect to access and use of the Technology Offerings and Documentation and agrees that Customer will be responsible for any non-compliance with such terms. DISCO will have the right (but not the obligation) to monitor use of the Technology Offerings to confirm Customer’s compliance with the terms of this Agreement.
(d) Professional Services. Subject to the terms and conditions of this Agreement, DISCO will provide the Standard Support and those Professional Services as may be described in any Order or otherwise purchased by Customer. In connection with DISCO’s performance of Professional Services, Customer will provide DISCO personnel with all such cooperation and assistance as they may reasonably request, or as otherwise may reasonably be required, to enable DISCO to provide the Standard Support and any Professional Services under and in accordance with the terms and conditions of this Agreement and the applicable Order.
(e) Supplementary Terms; Modification and Discontinuation of Technology Offerings. Customer acknowledges and agrees that its use of certain DISCO Offerings may be subject to additional terms and conditions (“Supplementary Terms”). To the extent any Supplementary Terms are referenced in an Order or otherwise provided to Customer in connection with Customer’s or an Authorized User’s use of DISCO Offerings, Customer agrees to be bound by such Supplementary Terms with respect to such DISCO Offerings. Customer further acknowledges and agrees that DISCO may, from time to time, add, update, modify, rebrand or cease commercializing any Technology Offerings or features or components thereof. Certain features or functionality may be made available only in exchange for the payment of additional fees or only within certain subscription packages or feature sets, in each case as determined by DISCO in its sole discretion from time to time. Customer may be notified of such additions or changes electronically (including through e-mail or through the applicable Technology Offering), or by DISCO posting updated pricing information to its website. Such additions or changes will be effective (i) with respect to Technology Offerings provided pursuant to a Subscription Model, at the commencement of the subsequent Renewal Subscription Period and (ii) with respect to Technology Offerings provided on a Transactional Model, immediately upon the delivery of such notice or a later date as may be specified in such notice. Except for Technology Offerings provided pursuant to a Subscription Model, DISCO may cease providing any Technology Offerings (or features or components thereof) at any time upon notice to Customer. The foregoing notice may be provided in writing, electronically (including through e-mail or through the applicable Technology Offering) or by DISCO posting updated information to its website.
Customer acknowledges that the Technology Offerings and Documentation are not sold to Customer. Customer is not being provided with any source or object code of any software constituting a part of the Technology Offerings (or rights to receive or copy any of the foregoing) under this Agreement. Except for the limited rights expressly granted to Customer in Section 2 above, nothing in this Agreement will be construed, either by implication, estoppel, or otherwise, as a grant to Customer of any right, title, or interest in the Technology Offerings or Documentation (including any Intellectual Property Rights with respect to any of the foregoing), and Customer hereby disclaims any and all right, title, or interest in the same. As between the parties, DISCO and/or its licensors will retain exclusive ownership and title (including all Intellectual Property Rights) in and to the Technology Offerings and Documentation. Anything to the contrary notwithstanding, to the extent that Customer (including any Authorized User) provides to DISCO any suggestions, recommendations, or other feedback relating to any modifications, corrections, improvements, updates or enhancements to the Technology Offerings and/or other DISCO offerings (whether current or proposed) (collectively, “Feedback”), Customer hereby grants to DISCO a fully paid, royalty-free, non-exclusive, irrevocable, worldwide, perpetual, fully transferable and sublicensable (through multiple tiers), royalty-free license to use and otherwise exploit the Feedback without restriction.
(a) Customer Obligations. Customer represents and warrants that: (i) Customer has obtained all necessary rights and consents in and with respect to the Customer Data to (A) use the Customer Data in connection with the DISCO Offerings (including the right to permit its Authorized Users to use the Customer Data in connection with the DISCO Offerings) and (B) to grant DISCO the rights to use the Customer Data as set forth in this Agreement; and (ii) the Customer Data (including the use thereof pursuant to the rights granted under this Agreement) does not violate, misappropriate or infringe the Intellectual Property Rights of any Person or violate any applicable laws, rules or regulations. Without limiting the foregoing, Customer agrees that the Customer Data will not include (X) any material that constitutes child sexual abuse material, (Y) export controlled data (e.g., ITAR (International Traffic in Arms Regulations) or Export Administration Regulations (EAR)) or data related to any equivalent or similar laws in any applicable jurisdiction, or (Z) any material in which any Sanctioned Party has an interest (each of the foregoing, “Prohibited Data”) unless otherwise agreed by DISCO in the applicable Order. Customer is solely responsible for complying with this Section 4(a) and shall ensure that no Customer Data constitutes or contains any Prohibited Data unless otherwise agreed by DISCO in writing.
(b) Customer Ownership; DISCO Rights of Use. As between the parties, Customer will retain all of its ownership rights in the Customer Data (including all Intellectual Property Rights with respect thereto). Customer hereby grants to DISCO a non-exclusive, worldwide, fully transferable and sublicensable (subject to applicable transfer restrictions set forth in this Agreement and, if applicable, the DPA), license to reproduce, display, distribute, modify, and otherwise use the Customer Data in accordance with the terms of this Agreement for the purposes of providing and improving the DISCO Offerings and otherwise performing under this Agreement, including by providing access to and use of Customer Data to (i) an Authorized User through its use of the Technology Offerings and (ii) Third Party Services pursuant to Section 5 below. Furthermore, if DISCO receives a judicial or other governmental order requesting disclosure of Customer Data, then DISCO will be permitted to disclose the Customer Data pursuant to such order, so long as (A) DISCO first gives given prompt written notice to Customer of the same (to the extent not prohibited by applicable law), and (B) DISCO reasonably cooperates with Customer’s efforts to prevent or limit any such disclosure. This Section 4 sets forth DISCO’s sole rights and obligations with respect to the use and treatment of Customer Data.
(c) Usage Data. Customer acknowledges and agrees that DISCO may collect telemetry data and other data relating to the operation of the Technology Offerings, including patterns identified through the use of the Technology Offerings and data regarding the performance of the Technology Offerings (“Usage Data”) Usage Data does not contain any Customer Data. Customer agrees that DISCO shall have the right to use any Usage Data, during and after the Term, in connection with monitoring, developing, improving and providing the Technology Offerings and its other offerings (whether current or proposed).
(d) Data Security. DISCO will maintain administrative, physical, and technical safeguards designed to protect the security and integrity of the Customer Data from unauthorized access, use or disclosure. DISCO may, from time to time, publish certain information regarding its data security practices and procedures on its website or through the Technology Offerings, including information regarding security audits or self-assessments undertaken by DISCO. DISCO reserves the right to change and improve its data security practices and procedures from time to time in its sole discretion.
(e) DPA. Each party shall comply with Data Protection Laws applicable to that party and its performance under this Agreement. With respect to the processing of Customer Personal Data the provisions of DISCO’s Data Processing Addendum set forth at https://www.csdisco.com/legal/data-processing-addendum (“DPA”) shall apply and form part of this Agreement.
DISCO may from time to time recommend, or enable integration with or access to via the Technology Offerings, third-party products, services or offerings (“Third Party Services”). Third Party Services are not part of the DISCO Offerings. DISCO has no control over such Third Party Services and will not be responsible or liable to Customer or anyone else for such Third Party Services. Any access enabled via the Technology Offerings to such Third Party Services is done only as a convenience to Customer, and Customer’s (including any Authorized User’s) purchase, access or use of any such Third Party Services is solely between Customer and the applicable Third Party Services provider (“Third Party Provider”). If Customer installs or enables a Third Party Service for use with the Technology Offerings, Customer authorizes DISCO to allow the applicable Third Party Provider to access Customer Data and to take any other actions as required for the interoperation of the Third Party Service with the Technology Offerings, and agrees that any exchange of Customer Data or other interaction between Customer (including any Authorized User) and the Third Party Provider is solely between Customer and such Third Party Provider. DISCO may discontinue any integration with or access to any Third Party Services via the Technology Offerings at any time in its sole discretion, with or without notice and without liability.
(a) Fees. Customer will pay to DISCO fees based on the rates and charges as set forth in the applicable Order and as may be updated from time to time in accordance with this Agreement (“Fees”). The recurring Fees (whether fixed or variable) for the Technology Offerings will be assessed on the billing cycle basis as indicated on the Order. Notwithstanding the Order Amendment mechanics set forth in Section 15(n), DISCO may modify the billing cycles or billing increments for its Technology Offerings and Professional Services by providing notice to Customer. Such notice may be provided in writing, electronically (including through e-mail or through the applicable Technology Offering), or by DISCO posting such updated terms to its website.
(b) Subscription Pricing. Fees for Technology Offerings provided pursuant to a Subscription Model will be determined in accordance with the applicable Order. If Customer’s use of the Technology Offerings exceeds the volume included in the applicable subscription, any such excess usage will be priced in accordance with the applicable schedule or at DISCO’s then-current standard rates. With respect to each Renewal Subscription Period, DISCO may increase the Fees payable for such Renewal Subscription Period by providing notice of the increased Fees to Customer at least thirty (30) days’ prior to the commencement of the Renewal Subscription Period. The foregoing notice may be provided in writing, electronically (including through e-mail or through the applicable Technology Offering), or by DISCO posting updated pricing information to its website.
(c) Transactional Model Pricing, Professional Services Pricing and Commitment Discounts. DISCO’s pricing for the Technology Offerings provided on a Transactional Model (the “Transactional Model Pricing”) and for Professional Services (the “Services Pricing”) will be as set forth on the applicable Order or as otherwise communicated to Customer, including in writing, electronically (including through e-mail or through the applicable Technology Offering) or posted on DISCO’s website. DISCO may update the Transactional Model Pricing or Services Pricing, including Transactional Model Pricing provided for a specified term length, at any time upon notice to Customer, and such updated Transactional Model Pricing or Services Pricing, as applicable, will be effective on the date of such notice. The foregoing notice may be provided in writing, electronically (including through e-mail or through the Technology Offerings), or by DISCO posting updated pricing information to its website.
(d) Usage Commitments. Customer may make minimum usage commitments with respect to its use of the Technology Offerings or Professional Services (“Usage Commitments”). Usage Commitments will be prepaid by Customer in accordance with the applicable Order. By making Usage Commitments, Customer may be entitled to certain pricing discounts as set forth in the applicable Order (the “Commitment Discount”), which such Commitment Discounts are contingent on Customer’s continued fulfillment of its Usage Commitment obligations. Any Commitment Discount provided to Customer will be applied to Technology Offerings or Professional Services purchased by Customer following the date that Customer makes a Usage Commitment. Customer’s prepaid Usage Commitments may only be used to satisfy future purchases of Technology Offerings or Professional Services. All prepaid Usage Commitments and nonrefundable. To the extent Customer’s use of Professional Services or Technology Offerings exceeds the Usage Commitment, Customer will be required to make a shortfall payment in accordance with the payment timeline set forth in the applicable Order.
(e) Expenses. Customer will reimburse DISCO for any expenses incurred by DISCO that are specified for reimbursement in the Order or are otherwise approved in writing (which may be via email) by Customer. Upon Customer’s request, DISCO will provide reasonable supporting documentation with respect to any such expense reimbursements.
(f) Invoicing; Payment Terms. Unless otherwise expressly provided in the Order, with respect to Technology Offerings provided on a Subscription Model, (i) Fees for the Initial Subscription Period will be invoiced in advance on or around the effective date of the Order and (ii) Fees for the Renewal Subscription Period will be invoiced in advance on or around the first day of each such Renewal Subscription Period. Unless otherwise expressly provided in the applicable Order, Fees for use of the Technology Offerings on a Transactional Model will be invoiced monthly in advance; provided, that Fees for Usage Commitments will be paid in advance in accordance with the timeline set forth in the applicable Order. Unless otherwise expressly provided in the applicable Order, any other Fees (including overage Fees for use of the Technology Offerings on a Subscription Model and Fees for all Professional Services) and any reimbursable expenses will be invoiced on a monthly basis in arrears. Unless otherwise expressly provided in the applicable Order, Customer will pay all Fees, reimbursable expenses and any other amounts due within thirty (30) days following the date of invoice, without deduction or set-off. In the event that Customer reasonably and in good faith disputes any portion of a DISCO invoice, Customer shall pay the undisputed portion of such invoice and any and all other undisputed amounts owed to DISCO in accordance with this Agreement and submit a written claim to DISCO that identifies the relevant invoice and the nature of and basis for Customer’s dispute in reasonable detail. Any and all such claims disputing any DISCO charges or invoice or any portion thereof shall be submitted to DISCO within thirty (30) days of the date on which such invoice was issued, and Customer waives the right to dispute any invoice or charges after such time period. Except as otherwise expressly provided in this Agreement, all amounts are payable in the currency specified in the applicable Order and are non-refundable. All payments from Customer shall be made by ACH or wire transfer unless otherwise agreed by DISCO in the applicable Order. Customer will pay interest at a rate of 1.5% per month, or, if less, the maximum rate permitted by law, on any unpaid amount to DISCO under this Agreement for such time as the outstanding balance remains past due. Failure of Customer to pay any amounts when due under and in accordance with this Agreement will constitute a material breach of this Agreement, and Customer agrees to reimburse DISCO for any and all reasonable attorneys’ fees and other costs of collection or litigation incurred by DISCO in connection with its efforts to collect such amounts.
(g) Taxes. All amounts payable by Customer to DISCO are exclusive of any applicable sales, use, value-added taxes and other assessments imposed by any governmental authority upon or with respect to the transactions and/or payments under this Agreement (collectively, “Taxes”). Customer is responsible for paying Taxes, excluding, for the avoidance of doubt, any taxes assessable against DISCO based on its income, property or employees. If DISCO is obligated under applicable law to collect or pay any Taxes, Customer agrees to pay to DISCO, in addition to the amounts owed to DISCO, such Taxes as invoiced, unless Customer provides DISCO with a valid tax exemption certificate for each jurisdiction in which it is claiming an exemption from such Taxes. Unless otherwise agreed to by the parties, the DISCO Offerings provided by DISCO to Customer under this Agreement are provided and sourced to Customer at the billing address identified on the applicable Order. Customer will make payment of all amounts owed to DISCO under this Agreement free and clear of any tax deduction or withholding, except to the extent otherwise required under applicable law. If any such tax deduction or withholding is required under applicable law, then the amount otherwise payable by Customer shall automatically be deemed to be increased such that the amount received by DISCO following the application of such withholding shall be equal to the amount that would have been received by DISCO if such withholding requirement did not apply.
(a) Term. The term of this Agreement will commence on the effective date of the initial Order placed by Customer and, unless earlier terminated in accordance with this Section 7, will continue until all Offering Terms have expired or terminated (the “Term”). Upon the termination of this Agreement (as a whole), all then-existing Offering Terms for all DISCO Offerings will terminate as of the date of such termination.
(b) Offering Terms. For any DISCO Offering, the Offering Term will be calculated as follows:
i. with respect to Technology Offerings provided on a Subscription Model, the initial period indicated in the Order for such Technology Offerings (with such period measured from the effective date of the Order, unless otherwise provided in the Order) (such period, the “Initial Subscription Period”), and thereafter automatically renewing for consecutive renewal periods each equal to one year unless a party notifies the other party in writing at least thirty (30) days prior to the end of the then-current period of its decision not to renew (each renewal period, a “Renewal Subscription Period”);
ii. with respect to Technology Offerings provided on a Transactional Model, the period commencing on the effective date of the Order and continuing until terminated by either party for its convenience upon thirty (30) days’ prior written notice to the other party;
iii. with respect to the Standard Support, the period corresponding to the Offering Term for the associated Technology Offering; and
iv. with respect to any Professional Services (excluding Standard Support), the period commencing on the effective date of the applicable Order or the commencement of performance of such Professional Services and ending upon DISCO’s completion of such Professional Services or, if the applicable Order contemplates a specific time period for such Professional Services, the expiration of the time period contemplated in such Order.
(c) Termination for Convenience. Except with respect to any Technology Offerings provided on a Subscription Model, and unless otherwise expressly provided in the applicable Order with respect to a particular DISCO Offering, a party may terminate any Offering Term for a particular DISCO Offering at any time for its convenience upon thirty (30) days’ prior written notice to the other party. Notwithstanding the foregoing, Customer’s Usage Commitments will remain binding on Customer notwithstanding Customer’s termination of any Order for Transactional Model usage.
(d) Termination for Breach. This Agreement (as a whole) may be terminated by a party immediately upon notice to the other party if the other party is in material breach of this Agreement and has failed to cure such breach within ten (10) days after notice of the breach or seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding in any jurisdiction, or if any such proceeding is instituted against such party and is not dismissed within 60 days.
(e) Effect of Termination. Upon termination or expiration of this Agreement (as a whole) or the Offering Term for a particular DISCO Offering, (i) all unpaid Fees and other amounts payable to DISCO under this Agreement with respect to the affected DISCO Offering(s) (including any unpaid Fees for the remaining portion of the then-current Offering Term) will become immediately due and payable and (ii) the rights granted to Customer with respect to the affected DISCO Offering(s) will terminate automatically. Upon DISCO’s request, Customer will provide DISCO with written certification of Customer’s compliance with the foregoing obligations. Customer shall be responsible for retrieving all available Customer Data from the Technology Offerings prior to the effective date of termination or expiration the applicable Offering Term. Customer acknowledges that following such termination or expiration all remaining Customer Data with respect to such Technology Offerings will be deleted from DISCO’s systems in accordance with DISCO’s standard practices.
(f) Survival. Anything to the contrary notwithstanding, termination or expiration of this Agreement will not affect any of the parties' respective rights or obligations that (A) are vested pursuant to this Agreement as of the effective date of such termination or expiration (including obligations for payment and remedies for breach of this Agreement) or (B) arise under Sections 1 (“Definitions”), 3 (“Ownership of Technology Offerings and Documentation”), 4(c) (“Usage Data”), 6 (“Fees and Payments”), 7(e) (“Effect of Termination”), 7(f) (“Survival”), 8 (“Confidentiality”), 9 (“Compliance with Laws”), 10 (“Sanctions Laws; Human Trafficking”), 12 (“Disclaimers”), 13 (“Limitations of Liability”), 14 (“Indemnity”) and 15 (“Miscellaneous”).
(g) Suspension of Use. DISCO may (without limitation of any other rights or remedies) suspend access to and use of the Technology Offerings in the event that (i) Customer fails to pay any amount due to DISCO under this Agreement by its due date and has not cured such failure within five (5) days following written notice thereof to Customer (provided, however, that DISCO shall not suspend its performance in relation to any disputed amounts that are submitted to DISCO in accordance with the procedure set forth above in Section 6(f) and so long as Customer is reasonably and diligently cooperating to resolve such dispute), (ii) Customer has breached any of the provisions of Section 2, Section 4 or Section 10 of this Agreement, or (iii) in DISCO’s reasonable good faith determination, suspension of the Technology Offerings is necessary to avoid or mitigate harm to the security of DISCO’s systems or data. Any such suspension will not constitute a breach or termination by DISCO of this Agreement. During any such suspension, (Y) Customer will not have access to its data or the ability to archive or download its data until all outstanding amounts are paid in full, and (Z) charges will continue to accrue while DISCO hosts Customer's data and Customer's obligation to pay those charges will survive suspension. With respect to any Technology Offerings for which the Fees are assessed based on the number of Authorized User accounts designated by Customer, the charges that accrue during suspension will be calculated based on the number of Authorized User accounts in effect as of the time of such suspension.
(a) Each party (a “Receiving Party”) agrees that any and all information (regardless of form or medium) obtained or otherwise received by Receiving Party from, through, by or on behalf of the other party (a “Disclosing Party”) during the Term that (i) is conspicuously marked as “proprietary” or “confidential” or similar designation, or (ii) if disclosed orally or visually, is identified by Disclosing Party as “proprietary” or “confidential” or similar designation either through an oral or written statement at the time of such disclosure or through a written statement delivered to Receiving Party within a reasonable period of time (not to exceed ten (10) days) following such disclosure, or (iii) based on the nature of the information, or the manner of its disclosure, should reasonably be considered as confidential, in each case, will be deemed the confidential information of Disclosing Party (“Confidential Information”). Examples of Confidential Information include information consisting of or relating to the Disclosing Party's technology, information security and audit information, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and similar information with respect to which the Disclosing Party has contractual or other confidentiality obligations. Receiving Party will maintain the Confidential Information in confidence and, subject to the terms and conditions of this Section, will not disclose or use any Confidential Information. Receiving Party agrees to use the same degree of care to protect the Confidential Information as it uses to protect its own confidential information of like importance, but in no event will Receiving Party use less than reasonable care.
(b) Receiving Party may use the Confidential Information only as reasonably necessary to perform its duties and/or exercise its rights subject to and in accordance with this Agreement, and for no other purpose, commercial or otherwise (including to inform any decision to transact in securities of the Disclosing Party). Receiving Party may disclose the Confidential Information only to those (i) Receiving Party employees, contractors and representatives, (ii) Disclosing Party employees, contractors and representatives, and (iii) such other Persons approved in writing by Disclosing Party, in each case who need to know the Confidential Information in order to assist Receiving Party in its authorized use of the Confidential Information; provided, that, in the case of disclosure to Receiving Party employees, contractors and representatives, such Persons agree to be bound by obligations of confidentiality and nonuse (without further rights of distribution) no less restrictive than those contained herein, and Receiving Party will be jointly and severally liable for any such Person's breach of the foregoing obligations of confidentiality and nonuse.
(c) Disclosure or use of any Confidential Information will not be restricted to the extent that: (i) it is or becomes generally available to the public without any breach of this Agreement, (ii) it is rightfully known to Receiving Party without restriction prior to the date of disclosure by or on behalf of Disclosing Party hereunder; (iii) Receiving Party rightfully obtains it from a third party who Receiving Party reasonably believes has the right to transfer or disclose it without restriction; or (iv) it is developed independently by Receiving Party without any breach of this Agreement and without any use of the Confidential Information.
(d) Further, disclosure of any Confidential Information to any judicial or other governmental entity will not be prohibited to the extent that such disclosure is required by applicable laws, so long as (Y) Receiving Party will first have given prompt written notice to Disclosing Party of the same (to the extent not prohibited by applicable law), and (Z) Receiving Party reasonably cooperates with Disclosing Party’s efforts to prevent or limit any such disclosure.
(e) At Disclosing Party’s written request, Receiving Party will destroy (and certify such destruction in writing to Disclosing Party) all information and materials containing or embodying any Confidential Information, within forty-five (45) days after delivery of such request by Disclosing Party.
Each party agrees to comply with all laws, rules and regulations applicable to such party and its performance under this Agreement. Without limiting the foregoing, Customer agrees that the Technology Offerings and other technical data provided to Customer under this Agreement may be subject to the import/export control laws of the United States and other countries, and Customer will comply with any and all such applicable laws.
(a) Customer shall comply with all applicable laws and regulations pertaining to trade and economic sanctions administered by the United States and any other jurisdiction applicable to this Agreement (collectively “Sanctions Laws”).
(b) None of the Customer, its subsidiaries, or their respective directors, officers, employees, Authorized Users, or, to the Customer’s knowledge, the Customer’s or subsidiaries’ agents is: (i) organized under the laws of, ordinarily resident in, or located in a country or territory that is the subject of comprehensive sanctions (which as of the date of this Agreement comprise Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk, and Luhansk regions of Ukraine (“Restricted Regions”)); (ii) 50% or more owned or controlled by the government of a Restricted Region; (iii) designated on a sanctioned parties list administered by the United States and any other applicable jurisdictions, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control’s (“OFAC”) Specially Designated Nationals and Blocked Persons List, OFAC “non-SDN Lists”, U.S. Department of Commerce Bureau of Industry and Security Entity List, or any other list included in the U.S. Department of Commerce International Trade Administration Consolidated Screening List (collectively, “Designated Parties”); or (iv) 50% or more owned or, where relevant under applicable Sanctions Laws, controlled, individually or in the aggregate, by one or more Designated Party, to the extent that dealings with such persons are prohibited pursuant to applicable Sanctions Laws. (Collectively, (i), (ii), (iii), and (iv) are “Sanctioned Parties.”)
(c) The Customer will not: (i) use DISCO’s products or services for the benefit of any Sanctioned Party; (ii) provide any Sanctioned Party access to DISCO’s products or services; (iii) upload, submit, transmit, or otherwise provide to DISCO or to any DISCO Offerings any files, documents, or Data in which any Sanctioned Party has an interest; (iv) transfer to DISCO any funds in which a Sanctioned Party has an interest; or (v) otherwise directly or indirectly transact with or cause DISCO to directly or indirectly transact with any Sanctioned Party under this Agreement, unless the Customer has obtained government authorization to engage in such activity and DISCO has authorized such activity in writing, citing this clause.
(d) The Customer maintains policies and procedures reasonably designed to promote compliance with applicable Sanctions Laws.
(e) Each party shall comply with all applicable United States or international anti-slavery and human trafficking laws, and export laws and regulations in providing and using the Technology Offerings and/or Professional Services. Without limiting the generality of the foregoing, Customer shall not make the Technology Offerings or Professional Services available to any person or entity that: (i) uses any form of slave, forced, bonded, indentured, or involuntary prison labor; (ii) inadequately compensates its employees below the level of what is a living wage; or (iii) retains employees’ government-issued identification, passports, or work permits as a condition of employment.
(a) DISCO warrants that, during the Offering Term, the Technology Offerings will conform, in all material respects, to its specifications set forth in the then-current Documentation. DISCO further warrants that it has used commercially reasonable efforts to identify and remove any Malicious Code from the Technology Offerings; provided, that the foregoing does not prevent DISCO from including in the Technology Offerings features or functionality designed to monitor the performance or usage of its Technology Offerings, and; provided, further, that DISCO is not responsible for any Malicious Code included within the Customer Data. The foregoing warranty will not apply (i) if Customer is in default or breach of any of its obligations under this Agreement; (ii) with respect to any Technology Offerings that are designed to run in Customer’s environment, any non-conformance due to Customer’s failure to permit the installation/implementation of any patch, bug fix or other update provided by DISCO; or (iii) if caused, in whole or in part, by (X) Customer’s negligence, abuse, misapplication or misuse of the Technology Offerings (including Customer’s failure to operate the Technology Offerings in accordance with the Documentation), (Y) Customer’s use or operation of the Technology Offerings in or with any technology (including any software, hardware, firmware, system or network) not provided by DISCO, including Third Party Services, or (Z) a force majeure event (as described in Section 15(m)). In the event of a breach of the foregoing warranty for which Customer provides notice to DISCO within thirty (30) days of DISCO delivering or making the Technology Offerings available to Customer, DISCO, at its sole expense, will use reasonable efforts to correct the non-conformance and, if DISCO is unable to correct such non-conformance after a reasonable time, then Customer may terminate the Offering Term with respect to such Technology Offerings upon notice to DISCO and be entitled to a refund of any pre-paid Fees for the applicable DISCO Offering attributable to the period following the effective date of termination (calculated on a pro-rated basis). THE PRECEDING SENTENCE SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND DISCO’S SOLE AND EXCLUSIVE LIABILITY, FOR THE BREACH OF THE WARRANTY SET FORTH ABOVE IN THIS SECTION 11(a).
(b) DISCO warrants that it will perform all Professional Services in a professional and workmanlike manner. In the event of a breach of the foregoing warranty for which Customer provides notice to DISCO within thirty (30) days of the date of delivery, DISCO, at its sole expense, will use reasonable efforts to correct the non-conformance and, if DISCO is unable to correct such non-conformance after a reasonable time, then Customer may terminate the Offering Term with respect to such Professional Service and be entitled to a refund of the portion of the Fees paid by Customer with respect to such non-conforming Professional Service. THE PRECEDING SENTENCE SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND DISCO’S SOLE AND EXCLUSIVE LIABILITY, FOR THE BREACH OF THE WARRANTY SET FORTH ABOVE IN THIS SECTION 11(b).
(a) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN SECTION 11 ABOVE, DISCO (INCLUDING, FOR PURPOSES OF THIS SECTION, ITS LICENSORS) DOES NOT MAKE ANY, AND HEREBY EXPRESSLY DISCLAIMS ALL, WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE DISCO OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR ANY OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. WITHOUT LIMITING THE FOREGOING, DISCO DOES NOT MAKE ANY, AND HEREBY EXPRESSLY DISCLAIMS ALL, REPRESENTATIONS, WARRANTIES AND/OR GUARANTEES REGARDING (I) THE USE OF OR THE RESULTS OR OUTPUT FROM THE USE OF THE DISCO OFFERINGS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, AVAILABILITY, OR OTHERWISE, OR (II) WHETHER ACCESS TO, OR USE OR OPERATION OF, THE DISCO OFFERINGS WILL BE UNINTERRUPTED OR ERROR FREE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR ANY SUPPLEMENTARY TERMS, CUSTOMER ACKNOWLEDGES AND AGREES THAT DISCO DOES NOT GUARANTEE THE RESULTS OR OUTPUT FROM ANY ARTIFICIAL INTELLIGENCE FEATURES OR TOOLS THAT DISCO MAY, FROM TIME TO TIME, MAKE AVAILABLE TO CUSTOMER, INCLUDING THE UNIQUENESS OF SUCH RESULTS OR OUTPUT.
(b) DISCO IS NOT ENGAGED IN THE PRACTICE OF LAW OR THE BUSINESS OF RENDERING LEGAL ADVICE, AND NEITHER DISCO NOR THE DISCO OFFERINGS SHOULD BE RELIED UPON AS SUCH. IF LEGAL ADVICE OR LEGAL SERVICES ARE REQUIRED BY CUSTOMER, CUSTOMER SHOULD SEEK THE ADVICE AND SERVICES OF A COMPETENT LICENSED ATTORNEY. CUSTOMER ACKNOWLEDGES THAT IT HAS NOT AND WILL NOT RELY ON DISCO FOR LEGAL ADVICE AND WILL NOT AND HAS NOT ENGAGED DISCO OR ANY DISCO EMPLOYEE AS AN ATTORNEY.
(a) SUBJECT TO SUBSECTION (c) BELOW, IN NO EVENT WILL EITHER PARTY (OR, IN THE CASE OF DISCO, ITS LICENSORS) BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOSS OF REVENUE OR PROFIT, LOSS OF DATA, OR LOSS OF TIME OR BUSINESS, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE DISCO OFFERINGS, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR IN TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE, AND REGARDLESS OF WHETHER DISCO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) SUBJECT TO SUBSECTION (c) BELOW, IN NO EVENT WILL THE TOTAL MAXIMUM AGGREGATE LIABILITY OF DISCO FOR ANY AND ALL CLAIMS, DAMAGES AND LIABILITIES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE DISCO OFFERINGS, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR IN TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES PAID TO DISCO BY CUSTOMER UNDER THE APPLICABLE ORDER DURING THE 12-MONTH PERIOD PRIOR TO THE OCCURRENCE OF THE EVENT GIVING RISE TO SUCH CLAIM, DAMAGE OR LIABILITY, LESS THE AMOUNT OF ANY CLAIMS, DAMAGES OR LIABILITIES PREVIOUSLY PAID BY OR ON BEHALF OF DISCO WITH RESPECT TO SUCH ORDER (SUCH AMOUNT, THE “GENERAL CAP”).
(c) THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN SECTIONS 13(a) AND 13(b) APPLY TO THE MAXIMUM EXTENT PERMITTED PURSUANT TO APPLICABLE LAW. IN ADDITION, WITH RESPECT TO DISCO’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 8 OR ANY UNAUTHORIZED ACCESS, USE OR DISCLOSURE OF CUSTOMER DATA RESULTING FROM DISCO’S BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT (COLLECTIVELY, “DATA PROTECTION CLAIMS”), THE MAXIMUM AGGREGATE LIABILITY OF DISCO FOR ANY AND ALL CLAIMS, DAMAGES AND LIABILITIES ARISING OUT OF OR RELATING TO SUCH DATA PROTECTION CLAIMS SHALL NOT EXCEED THE PRODUCT OF TWO (2) MULTIPLIED BY THE GENERAL CAP.
(a) DISCO will indemnify and defend Customer from and against any third party claim that the Technology Offerings or the Documentation infringe, violate or misappropriate the United States Intellectual Property Rights of any other Person; provided, that such indemnification obligations will not extend to any such claim to the extent based on (i) any modification to the Technology Offerings or the Documentation made by or on behalf of Customer without DISCO’s written approval, (ii) the combination of the Technology Offerings or the Documentation with any technology (including any software, hardware, firmware, system or network) not provided by DISCO, including the Third Party Services, (iii) with respect to any Technology Offerings that are designed to run in Customer’s environment, any non-conformance due to Customer’s failure to permit the installation/implementation of any patch, bug fix or other update provided by DISCO, (iv) any Customer Data, or (v) Customer’s use of the Technology Offerings or the Documentation in violation of the terms, conditions and restrictions set forth in this Agreement. If Customer’s use of the Technology Offerings or the Documentation is, or, in DISCO’s opinion, is likely to be, enjoined due to any such alleged infringement, then DISCO, at its sole option and expense, may, in addition to its indemnification obligations under this Section 14(a), do one or more of the following: (X) obtain for Customer the right to continue using the alleged infringing item as otherwise provided in this Agreement; (Y) replace or modify the alleged infringing item so that it is no longer infringing, and require Customer to implement such replaced or modified item; or (Z) terminate this Agreement upon notice to Customer and refund to Customer any pre-paid Fees for the Technology Offerings attributable to the period following the effective date of termination (calculated on a pro-rated basis). DISCO’s obligations pursuant to this Section 14(a) states the entire obligation of DISCO and its suppliers, and the exclusive remedy of Customer, with respect to the infringement, violation or misappropriation of any Intellectual Property Rights.
(b) Customer will indemnify and defend DISCO from and against any third-party claim that arises out of or relates to (i) Customer’s breach or violation of Section 2 (“Use of Technology Offerings, Professional Services”), Section 4(a) (“Customer Obligations”), or Section 10 ("Sanctions Laws; Human Trafficking”) or (ii) any litigation matter in which Customer or Authorized Users are engaged.
(c) In the event of any such indemnifiable claims, the party seeking indemnification (the “Indemnified Party”) will notify the party required to provide indemnification (the “Indemnifying Party”) of any matter with respect to which the Indemnified Party may seek indemnification from the Indemnifying Party under this Section promptly after the Indemnified Party becomes aware of such matter; provided, however, that any failure to give prompt notice of any such matter will not relieve the Indemnifying Party from any of its liabilities or obligations hereunder with respect to such matter unless (and then only to the extent that) such failure adversely affects the ability of the Indemnifying Party to defend any claim arising out of such matter. The Indemnifying Party will assume the defense and have sole control over the defense and settlement of any claim subject to indemnification hereunder, and will, subject to the limitations of liability contained herein, pay any amounts awarded in judgment or agreed in settlement against the Indemnified Party with respect to such claim, provided that (i) the Indemnified Party will have the right to participate in the defense with counsel of its own choice and (ii) the Indemnifying Party may not settle any such claim that would bind the Indemnified Party to any obligation (other than payment covered by the Indemnifying Party or ceasing to use infringing materials) or require any admission of fault by the Indemnified Party, without the Indemnified Party’s prior written consent, such consent not to be unreasonably withheld or delayed. The fees and expenses of any counsel retained by the Indemnified Party will be at the expense of the Indemnified Party unless the Indemnifying Party has not employed counsel to defend the Indemnified Party within a reasonable time after the Indemnified Party requests the same or fails to continue to do so until the matter is resolved, in which case, the reasonable fees and expenses of such separate counsel (and other costs of litigation) will be paid by the Indemnifying Party. The Indemnifying Party will keep the Indemnified Party reasonably informed as to the status of the Indemnifying Party’s efforts and consult with the Indemnified Party concerning same.
(a) Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
(b) Jurisdiction; Venue; Waiver of Jury. EACH PARTY IRREVOCABLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE UNITED STATES DISTRICT COURTS FOR THE WESTERN DISTRICT OF TEXAS, AND THE TEXAS STATE DISTRICT COURTS, LOCATED IN TRAVIS COUNTY, TEXAS, AND, SUBJECT TO THE PROVISIONS OF SECTION 15(c) (“DISPUTE RESOLUTION; ARBITRATION”) BELOW, HEREBY AGREES THAT SUCH COURTS WILL BE THE EXCLUSIVE PROPER FORUM FOR THE DETERMINATION OF ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT. FURTHERMORE, SUBJECT TO THE PROVISIONS OF SECTION 15(c) (“DISPUTE RESOLUTION; ARBITRATION”) BELOW, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(c) Dispute Resolution; Arbitration.
i. Except with respect to claims for injunctive relief with respect to claims described in Section 15(d) below or claims for which the statute of limitations will run within the upcoming ninety (90) day period, in the event of a dispute between the parties arising out of or relating to this Agreement, and before a party initiates arbitration or other legal action in accordance with the terms of this Agreement, the parties agree to participate in the informal dispute resolution process as set forth in this Section 15(c)(i). If a party has a dispute with the other party that arises out of or relates to this Agreement and desires to initiates arbitration or other legal action, then such party shall provide notice to the other party of such dispute, its invocation of the provisions of this Section 15(c)(i) and its request to have an executive-level representative of each party meet in person in Austin, Texas (or such other mutually agreed upon place) to discuss such dispute within twenty (20) days following the date of such notice. Each party shall cause a designated executive-level representative to participate in such meeting and engage in good faith discussions regarding the dispute and a resolution thereof. If the parties do not resolve the disputed matter to their mutual satisfaction following earlier of (x) the 10th day following the date on which the executive-level meeting occurred or (y) within thirty (30) days following the date of delivery of the notice initiating the dispute resolution process under this Section 15(c)(i), then either party may pursue arbitration or other legal action with respect to such dispute pursuant to the provisions of Section 15(c)(ii) below.
ii. Subject to the provisions of Section 15(c)(i) above and Section 15(d) below, the parties agree that any dispute between the parties arising out of or relating to this Agreement shall be resolved by binding arbitration administered by the American Arbitration Association in Travis County, Texas in accordance with its commercial arbitration rules then in effect, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall be an attorney licensed in Texas with experience in legal issues related to commercial software-as-a-service. The award shall be made within nine months of the filing of the notice of intention to arbitrate (demand), and the arbitrator shall agree to comply with this schedule before accepting appointment. This time limit may be extended by the arbitrator for good cause shown, or by mutual agreement of the parties. Any award in an arbitration initiated under this clause shall be limited to monetary damages and shall include no injunction or direction to any party other than the direction to pay a monetary amount. The arbitrator shall have the authority to allocate the costs of the arbitration process among the parties, including attorneys’ fees. Except as may be required by law or as necessary to enforce the award in a court of law, neither party nor the arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties, except that a party may disclose such information to its attorneys or auditors who are subject to confidentiality and ethical obligations. The parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine witnesses. In such event, the other party shall be required to present evidence and legal argument as the arbitrator may require for the making of an award.
(d) Equitable Remedies. Customer agrees that its breach of Sections 2, 4, or 8 of this Agreement would cause irreparable harm to DISCO for which monetary damages alone would not be an adequate remedy. Accordingly, Customer agrees that, in addition to any other remedies to which DISCO may be entitled, in the event of any such breach by Customer, DISCO will be entitled to seek equitable relief (including injunctive relief) with respect to any such breach in any court of competent jurisdiction (notwithstanding any exclusive venue or arbitration provisions of this Agreement) without the requirement of posting bond.
(e) Free Trials. From time to time, DISCO may make a Free Trial Service available to Customer at no charge. Customer may choose to try such Free Trial Service or not in its sole discretion. If Customer uses a Free Trial Service, DISCO will make such Free Trial Service available to Customer on a trial basis, free of charge, until the earlier of (a) the end of the free trial period for which Customer agreed to use such Free Trial Service, (b) the start date of any Technology Offerings subscription purchased by Customer that includes such Free Trial Service, or (c) termination of the Free Trial Service by DISCO in its sole discretion. A free trial period may be extended upon mutual agreement by DISCO and Customer. Notwithstanding anything to the contrary in this Agreement, a Free Trial Service is provided “AS IS.” DISCO MAKES NO REPRESENTATION OR WARRANTY AND SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO A FREE TRIAL SERVICE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, DISCO SHALL HAVE NO LIABILITY OF ANY TYPE WITH RESPECT TO A FREE TRIAL SERVICE, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE DISCO’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO A FREE TRIAL SERVICE IS LIMITED TO A MAXIMUM OF USD $1,000. CUSTOMER SHALL NOT USE THE FREE TRIAL SERVICE IN A MANNER THAT VIOLATES APPLICABLE LAWS AND WILL BE FULLY LIABLE FOR ANY DAMAGES CAUSED BY ITS USE OF A FREE TRIAL SERVICE. ANY DATA OR INFORMATION ENTERED INTO THE FREE TRIAL SERVICE BY CUSTOMER MAY BE PERMANENTLY LOST UPON TERMINATION OF THE FREE TRIAL SERVICE. Customer agrees that it will not make any public statements or otherwise disclose its participation in the Free Trial Service without DISCO’s prior written consent. DISCO may change or not release a final or commercial version of a Free Trial Service in its sole discretion.
(f) Severability. If a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
(g) Notices. Except to the extent as may be otherwise expressly permitted in this Agreement and for routine electronic communications regarding the DISCO Offerings provided on or through the Technology Offerings, any notice required or permitted under this Agreement will be in writing, and will be delivered (a) personally by hand, (b) for notices where the sender and recipient are both in the U.S, by certified mail, postage prepaid, with return receipt requested, (c) by email, or (d) by internationally recognized express delivery service (e.g., UPS or FedEx), to the parties as follows: if to Customer, at the address(es) indicated in the Order; and if to DISCO, at 111 Congress Avenue, Suite 900, Austin, TX 78701, Attn: General Counsel; notices@csdisco.com. Notice given will be deemed effective on the date delivered, if by hand, three (3) days following deposit in the U.S. Mail properly addressed, if by mail, or on the date of delivery, if by email or internationally recognized express delivery service. Either party may change the person(s) and/or address(es) designated for notice effective ten (10) days following delivery of notice of such change(s).
(h) Marketing Materials. Customer hereby consents to DISCO’s inclusion of Customer’s name and logo on DISCO’s website and in other DISCO marketing materials (whether in hard copy or electronic form) in order to factually identify Customer as a current customer. To the extent Customer provides DISCO with standard trademark usage guidelines, DISCO shall use the Customer’s name and logo in accordance with such guidelines.
(i) Assignment. Neither party may assign or otherwise transfer this Agreement, or any of its rights or obligations hereunder, in any manner without the prior written consent of the other party; provided, however, that a party may assign and transfer this Agreement, and all of its rights and obligations hereunder, without the consent of the other party, to the purchaser or surviving entity in connection with a sale of its business (whether directly or indirectly and whether by way of merger, exchange, consolidation or combination, or sale of fifty percent (50%) or more of its capital stock or similar ownership interests, or sale of all or substantially all of its assets) (a “Change of Control”). If (i) any Customer undergoes a Change of Control or acquires another entity or (ii) a law firm Customer acquires or loses an attorney practice group resulting in a material change in the number of practicing attorneys within the Customer firm, the quantity or scope of data, or the nature of Customer’s matters, then, in either such case, DISCO may, in any such case and at its election, modify Customer’s pricing as set forth in the applicable Order. Subject to the foregoing, this Agreement will be binding on the parties and their respective successors and assigns.
(j) U.S. Government Restricted Rights. If Customer is a U.S. government entity or a contractor to any U.S. government entity, or the Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR) or the Defense Federal Acquisition Regulation Supplement (DFARS), Customer acknowledges that the Technology Offerings constitute “commercial computer software,” and the Documentation constitutes “commercial computer software documentation,” as such terms are used in FAR Section 12.212 and DFARS Section 227.7202 (or successor regulations). Any and all use, modification, reproduction, release, performance, display, or disclosure of the Technology Offerings and Documentation is governed solely by the terms, conditions and restrictions set forth in this Agreement.
(k) Interpretation. Each instance in this Agreement of the words "include," "includes," and "including" will be deemed to be followed by the words "without limitation." As used in this Agreement, the term "days" means calendar days, not business days, unless otherwise specified. All headings or section divisions contained in this Agreement are for reference purposes only and will not be construed to affect the meaning or interpretation of this Agreement. There are no intended third-party beneficiaries of this Agreement.
(l) Independent Contractors. The relationship between the parties is that of independent contractors. Nothing in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have the authority to contract for or bind the other party in any manner whatsoever.
(m) Force Majeure. DISCO will not be liable for any failure or delay in performance resulting from any event beyond its reasonable control, including due to fire, flood, action or decree of civil or military authority, insurrection, act of war, vandalism, terrorism, hackers, denial of service attacks, epidemic or pandemic, labor disputes or shortages, material shortages, power outages, failure of internet connections, failure of suppliers, or embargo.
(n) Waiver; Amendments. No waiver of any provision of this Agreement will be effective unless made in writing and signed by the party to be charged with such waiver. From time to time, DISCO may modify this Agreement by providing notice to Customer. Such notice may be provided in writing, electronically (including through e-mail or through the applicable Technology Offering), or by DISCO posting an updated version of this Agreement to its website. Unless otherwise specified by DISCO, changes become effective on the first day of the calendar month following the date of such notice or such later date identified in such notice; provided, that with respect to Technology Offerings provided on a Subscription Model under an Order placed prior to the date of such notice, the modified version of this Agreement will not become effective as to such Technology Offerings until the first day of the next Renewal Subscription Period that follows the effective date of the modification. Continued use of any DISCO Offerings after a modified version of this Agreement goes into effect will constitute Customer’s acceptance of such modified version. Any Order may be amended, supplemented or otherwise modified as agreed to in writing (including electronically) by Customer and DISCO, including through terms accepted by Customer within the Technology Offerings (any of the foregoing, an “Order Amendment”). Each Order Amendment shall, unless specifically designated as applying to multiple Orders, apply only to the specific Order referenced in such Order Amendment. For clarity, nothing in this Section 15(n) shall restrict DISCO from modifying (i) the Fees for Subscription Model Technology Offerings set forth in an Order for Subscription Model Technology Offerings in the manner contemplated in Section 6(b) or (ii) the Transactional Model Pricing set forth in an Order for Transactional Model usage in the manner contemplated in Section 6(c).
(o) Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes any and all prior representations, warranties, understandings or agreements (written or oral) between the parties with respect to the subject matter hereof. Without limiting the foregoing, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Orders) shall be incorporated into or form any part of this Agreement, and each of the foregoing shall be null and void ab initio, notwithstanding any language to the contrary therein. In the event of a conflict between or among this Agreement and an Order, the provisions contained in this Agreement will prevail over any conflicting provisions in the Order (except to the extent that the Order specifically references that a particular Section of this Agreement is being altered (including Section number), and where a specific Section of this Agreement is referenced and varied in an Order, that change, unless it is specifically designated as applying to multiple Orders, only applies to the Order in which it is contained and it does not otherwise vary this Agreement in respect of any other Order then in force or any future Order which may be entered into by the parties). The terms of each Order shall apply solely with respect to the Technology Offerings and/or Professional Services subject to such Order.
A. “Customer” means (i) in the case of an individual placing an Order or using the DISCO Offerings on his or her own behalf, such individual, or (ii) in the case of an individual placing an Order or using the DISCO Offerings on behalf of a company or other legal entity, the company or other legal entity for which such individual is placing such Order or using the DISCO Offerings.
B. “Customer Data” means any and all Data that is uploaded, submitted, transmitted or otherwise provided by Customer or an Authorized User (i) to the Technology Offerings or (ii) to DISCO (e.g., Data stored on a hard drive) for provision of Professional Services or to transfer such Data to the Technology Offerings.
C. "Customer Personal Data" means personal data or personal information (as defined in Data Protection Laws) contained within Customer Data.
D. “Data” means text, images, displays, photos, reports, graphs, content, information and other data.
E. "Data Protection Laws" means all laws relating to the use, protection and privacy of personal data or personal information (including, without limitation, the privacy of electronic communications) which are from time to time applicable to Customer, DISCO or the DISCO Offerings.
F. “DISCO” means CS Disco, Inc., a Delaware corporation.
G. “DISCO Offerings” means the Technology Offerings and/or the Professional Services, as applicable.
H. “Documentation” means any user guides, training materials, and other technical documentation published by DISCO describing the features, functionality, use and operation of the Technology Offerings that DISCO makes generally available to its users of the Technology Offerings.
I. “End Client” means any Person that is a client of a law firm Customer.
J. “Free Trial Service” means any DISCO service or functionality that DISCO makes available to Customer to try at Customer’s option, at no additional charge, and which is designated as “beta,” “trial,” “pilot,” “free trial,” “evaluation,” or by similar designation. For clarity, a service or functionality only constitutes a Free Trial Service for so long as, and to the extent that, DISCO provides it to Customer without charge.
K. “Intellectual Property Rights” means any and all patent rights, copyrights, trademark rights, trade secret rights, sui generis database rights, and other proprietary or intellectual property rights, whether now existing or hereafter arising, under the laws of any jurisdiction.
L. “Offering Term” means the period for which any DISCO Offering is provided.
M. “Order” means an order either (i) agreed to in writing (including electronically) by Customer and DISCO or (ii) completed and submitted by Customer online at the DISCO site or through the Technology Offerings, including, in each case any and all schedules or other supplementary terms included therein or incorporated by reference therein.
N. “Permitted Use” means, subject to the other terms, conditions and restrictions set forth in this Agreement, to permit each Authorized User to use for the applicable authorized purpose stated in Section 2(a) of this Agreement.
O. “Person” means any individual, partnership, corporation, limited liability company, trust, joint stock company, government (including any department or agency thereof) or any other form of association or entity.
P. “Professional Services” means any professional services (other than the Technology Offerings) identified in an Order to be provided by DISCO, including Standard Support and managed review services as and if provided from time to time pursuant to an Order.
Q. “Standard Support” means the technical support services described at support.csdisco.com/hc/en-us or cbsupport.csdisco.com/hc/en-us, as applicable.
R. “Subscription Model” means provision of access to, and use of, the Technology Offerings for a fixed, initial period as set forth in the applicable Order.
S. “Technology Offerings” means the DISCO-provided technology offering(s) identified in an Order or otherwise purchased by, or made available to, Customer (as the same may be updated from time to time) but excluding any Free Trial Service.
T. “Transactional Model” means provision of access to, and use of, the Technology Offerings not on a Subscription Model.
THESE UK & EU ADDITIONAL TERMS FORM PART OF THE AGREEMENT AND AMENDS THE AGREEMENT AS SET OUT BELOW.
All capitalized terms used but not defined in these UK & EU Additional Terms shall have the meanings assigned to such terms in the Agreement.
Section 15(j) of the Agreement shall be deleted.
Section 12 of the Agreement shall be deleted and replaced with the following:
“a. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN SECTION 11 ABOVE, THE DISCO OFFERINGS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN SECTION 11 ABOVE, ALL CONDITIONS, WARRANTIES AND REPRESENTATIONS, AND ALL OTHER TERMS OF ANY KIND WHATSOEVER IMPLIED BY STATUTE OR COMMON LAW, ARE TO THE FULLEST EXTENT PERMITTED BY LAW EXCLUDED FROM THE AGREEMENT INCLUDING ANY WARRANTY THAT THE OFFERINGS OR THIRD PARTY SERVICES ARE FIT FOR ANY PARTICULAR PURPOSE, OF SATISFACTORY QUALITY, OR NON-INFRINGING.
c. EXCEPT AS EXPRESSLY AND SPECIFICALLY PROVIDED FOR IN THE AGREEMENT: (i) CUSTOMER ASSUMES SOLE RESPONSIBILITY FOR ANY RESULTS OBTAINED FROM THE USE OF THE OFFERINGS AND THIRD PARTY SERVICES AND FOR ANY DECISIONS OR ACTIONS TAKEN ARISING FROM SUCH USE AND IT RELIES ON THE RESULTS OBTAINED FROM THE OFFERINGS AND THIRD PARTY SERVICES AT ITS OWN RISK; AND (ii) DISCO WILL NOT BE RESPONSIBLE FOR ANY INTERRUPTIONS, DELAYS, FAILURES OR NON-AVAILABILITY AFFECTING THE OFFERINGS OR THIRD PARTY SERVICES, OR THEIR PERFORMANCE, WHICH ARE CAUSED BY THIRD PARTY SERVICES OR ERRORS OR BUGS IN SOFTWARE, HARDWARE OR THE INTERNET ON WHICH DISCO RELIES TO PROVIDE THE OFFERINGS OR THIRD PARTY SERVICES AND CUSTOMER ACKNOWLEDGES THAT DISCO DOES NOT CONTROL SUCH THIRD PARTY SERVICES AND THAT SUCH ERRORS AND BUGS ARE INHERENT IN THE USE OF SUCH SOFTWARE, HARDWARE AND THE INTERNET.
d. DISCO IS NOT ENGAGED IN THE PRACTICE OF LAW OR THE BUSINESS OF PROVIDING LEGAL ADVICE, AND NEITHER DISCO NOR THE OFFERINGS SHOULD BE RELIED UPON AS SUCH. IF LEGAL ADVICE OR LEGAL SERVICES ARE REQUIRED BY CUSTOMER, CUSTOMER SHOULD SEEK THE ADVICE AND SERVICES OF A COMPETENT QUALIFIED LAWYER.”
Section 13 of the Agreement shall be deleted and replaced with the following:
“a. SUBJECT TO SECTION 13(c), DISCO’S TOTAL AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THE AGREEMENT, WHETHER ARISING FROM CONTRACT, NEGLIGENCE OR OTHERWISE, SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER UNDER THE AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO THE LIABILITY ("GENERAL CAP”).
b. SUBJECT TO SECTION 13(c), NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY OF THE FOLLOWING TYPES OF LOSS OR DAMAGE, WHETHER ARISING FROM CONTRACT, NEGLIGENCE, UNDER AN INDEMNITY OR OTHERWISE, EVEN IF, IN EACH CASE, THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE: (i) SPECIAL, INDIRECT OR CONSEQUENTIAL LOSS; (ii) PURE ECONOMIC LOSS, COSTS, DAMAGES OR CHARGES, (iii) LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF CONTRACTS, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS, LOSS OF USE, LOSS OF TIME, LOSS OF GOODWILL, OR (iv) LOSS OR DAMAGE ARISING FROM THE LOSS, DAMAGE OR CORRUPTION OF ANY DATA.
c. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN SECTIONS 13(a) AND 13(b) DO NOT APPLY TO: (i) CUSTOMER’S OBLIGATION TO PAY THE FEES; (ii) LIABILITY ARISING FROM DEATH OR INJURY TO PERSONS CAUSED BY NEGLIGENCE; (iii) BREACH OF TERMS REGARDING TITLE IMPLIED BY SECTION 12 SALE OF GOODS ACT 1979 AND/OR SECTION 2 SUPPLY OF GOODS AND SERVICES ACT 1982; (iv) EITHER PARTY’S LIABILITY ARISING AS A RESULT OF FRAUD OR A BREACH OF PROFESSIONAL CONDUCT RULES; AND (v) ANYTHING ELSE WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.
d. SUBJECT TO SECTION 13(c), IN RESPECT OF DISCO’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET OUT IN SECTION 8 OR ANY UNAUTHORIZED ACCESS, USE OR DISCLOSURE OF CUSTOMER DATA RESULTING FROM DISCO’S BREACH OF ITS OBLIGATIONS SET FORTH IN SECTIONS 4(b), 4(d) OR 4(e) (COLLECTIVELY, “DATA PROTECTION CLAIMS”), DISCO’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO SUCH DATA PROTECTION CLAIMS WHETHER ARISING FROM CONTRACT, NEGLIGENCE, UNDER AN INDEMNITY OR OTHERWISE SHALL NOT EXCEED TWO (2) TIMES THE GENERAL CAP.”
Section 14 of the Agreement shall be deleted and replaced with the following:
“a. DISCO will indemnify and defend Customer from and against any third party claim that the Technology Offerings infringe the United Kingdom or EU Intellectual Property Rights of any other Person; provided, that such indemnification obligations will not extend to any such claim to the extent based on (i) any modification to the Technology Offerings made by or on behalf of Customer without DISCO’s written approval, (ii) the combination of the Technology Offerings with any technology (including any software, hardware, firmware, system or network) not provided by DISCO, including the Third Party Services, (ii) the failure of Customer to permit the implementation of any Update provided by DISCO, (iv) any Customer Data, or (v) Customer’s use of the Technology Offerings in breach of the terms, conditions and restrictions set forth in the Agreement.
b. In the defence or settlement of any such third party claim, or if, in DISCO’s reasonable opinion, such a claim is likely to be initiated, DISCO may, at its sole option and expense, in addition to its indemnification obligations under Section 14(a), do one or more of the following: (x) obtain for Customer the right to continue using the alleged infringing item as otherwise provided in this Agreement; (y) replace or modify the alleged infringing item so that it is no longer infringing, and require Customer to implement such replaced or modified item; or (z) terminate the Agreement upon notice to Customer and refund to Customer any pre-paid Fees for the Technology Offerings attributable to the period following the effective date of termination (calculated on a pro-rated basis) without any additional liability or obligation to pay liquidated damages or other additional costs to Customer.
c. DISCO’S OBLIGATIONS PURSUANT TO SECTIONS 14(a) AND 14(b) STATE THE ENTIRE OBLIGATION OF DISCO AND ITS SUPPLIERS, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS.
d. Customer will indemnify and defend DISCO from and against any third-party claim that arises out of or relates to (i) Customer’s breach or violation of Section 2 (“Use of Technology Offerings, Professional Services”), Section 4(a) (“Customer Obligations”), or Section 10 ("Sanctions Laws; Human Trafficking”) or (ii) any litigation matter in which Customer or Authorized Users are engaged.
e. In the event of any such indemnifiable claims, the party seeking indemnification (the “Indemnified Party”) will notify the party required to provide indemnification (the “Indemnifying Party”) of any matter with respect to which the Indemnified Party may seek indemnification from the Indemnifying Party under this Section promptly after the Indemnified Party becomes aware of such matter; provided, however, that any failure to give prompt notice of any such matter will not relieve the Indemnifying Party from any of its liabilities or obligations hereunder with respect to such matter unless (and then only to the extent that) such failure adversely affects the ability of the Indemnifying Party to defend any claim arising out of such matter. The Indemnifying Party will assume the defense and have sole control over the defense and settlement of any claim subject to indemnification hereunder, and will pay any amounts awarded in judgment or agreed in settlement against the Indemnified Party with respect to such claim, provided that (i) the Indemnified Party will have the right to participate in the defense with counsel of its own choice and (ii) the Indemnifying Party may not settle any such claim that would bind the Indemnified Party to any obligation (other than payment covered by the Indemnifying Party or ceasing to use infringing materials) or require any admission of fault by the Indemnified Party, without the Indemnified Party’s prior written consent, such consent, not to be unreasonably withheld or delayed. The fees and expenses of any counsel retained by the Indemnified Party will be at the expense of the Indemnified Party unless the Indemnifying Party has not employed counsel to defend the Indemnified Party within a reasonable time after the Indemnified Party requests the same or fails to continue to do so until the matter is resolved, in which case, the reasonable fees and expenses of such separate counsel (and other costs of litigation) will be paid by the Indemnifying Party. The Indemnifying Party will keep the Indemnified Party reasonably informed as to the status of the Indemnifying Party’s efforts and consult with the Indemnified Party concerning same.”
Sections 15(a) and 15(b) of the Agreement shall be deleted and replaced with the following:
“The Agreement and any non-contractual obligations arising in connection with it are governed by and construed in accordance with English law.”
Section 15(c) of the Agreement shall be deleted and replaced with the following:
“i. Any dispute arising out of or in connection with the Agreement, including (A) any question regarding its existence, validity or termination; and (B) any non-contractual claims (whether in tort or otherwise) shall be referred to and finally resolved by arbitration under the London Court of International Arbitration Rules (“LCIA Rules”), which are deemed to be incorporated by reference into this Section 15(c) (Dispute Resolution; Arbitration) (subject to subsection (e) below).
ii. The number of arbitrators shall be one.
iii. The seat of the arbitration shall be London (England).
iv. The language of the arbitration shall be English.
v. The parties expressly opt-out of Article 9A and 9B of the LCIA Rules and agree that nothing in this Section 15(c) (Dispute Resolution; Arbitration) shall prevent either party from applying at any time to any competent judicial authority for interim or conservatory relief, whether urgent or otherwise, or for the implementation of any such measures ordered by an arbitral tribunal. For the avoidance of any doubt, Article 25.3 of the LCIA Rules is also excluded.”
Section 15(e) of the Agreement is hereby deleted and replaced with the following:
“If Customer uses a Free Trial Service, DISCO will make such Free Trial Service available to Customer on a trial basis, free of charge, until the earlier of (a) the end of the free trial period for which Customer agreed to use such Free Trial Service, (b) the start date of any Technology Offerings subscription purchased by Customer that includes such Free Trial Service, or (c) termination of the Free Trial Service by DISCO in its sole discretion. A free trial period may be extended upon mutual agreement by DISCO and Customer. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, A FREE TRIAL SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. DISCO MAKES NO CONDITION, REPRESENTATION OR WARRANTY AND SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO A FREE TRIAL SERVICE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT APART FROM SECTION 14(c), DISCO SHALL HAVE NO LIABILITY OF ANY TYPE (WHETHER IN CONTRACT, TORT OR OTHERWISE) WITH RESPECT TO A FREE TRIAL SERVICE, UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE DISCO’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO A FREE TRIAL SERVICE IS LIMITED TO A MAXIMUM OF GBP 1000. CUSTOMER SHALL NOT USE THE FREE TRIAL SERVICE IN A MANNER THAT BREACHES APPLICABLE LAWS AND WILL BE FULLY LIABLE FOR ANY DAMAGES CAUSED BY ITS USE OF A FREE TRIAL SERVICE. ANY DATA OR INFORMATION ENTERED INTO THE FREE TRIAL SERVICE BY CUSTOMER MAY BE PERMANENTLY LOST UPON TERMINATION OF THE FREE TRIAL SERVICE. Customer agrees that it will not make any public statements or otherwise disclose its participation in the Free Trial Service without DISCO’s prior written consent. DISCO may change or not release a final or commercial version of a Free Trial Service in its sole discretion.”
A new Section 15(p) is hereby added to the Agreement as follows:
“The parties agree that no representations, warranties, undertakings or promises have been expressly or impliedly given in respect of the subject matter of the Agreement other than those which are expressly stated in the Agreement. Neither party shall have any remedy in respect of any statement not set out in the Agreement upon which it relied in entering into the Agreement, unless the statement was made fraudulently.”
A new Section 15(q) is hereby added to the Agreement as follows:
“The parties do not intend any third party to have the right to enforce any provision of the Agreement under the Contracts (Rights of Third Parties) Act 1999 or otherwise.”
THESE CANADA ADDITIONAL TERMS FORM PART OF THE AGREEMENT AND AMENDS THE AGREEMENT AS SET OUT BELOW.
All capitalized terms used but not defined in these Canada Additional Terms shall have the meanings assigned to such terms in the Terms and Conditions. Notwithstanding the foregoing, the term “Intellectual Property Rights,” as used in these Canada Additional Terms, shall be defined as follows:
““Intellectual Property Rights” means any and all patent rights, industrial designs, copyrights, trademark rights, trade secret rights, sui generis database rights, and other proprietary or intellectual property rights, whether now existing or hereafter arising, under the laws of any jurisdiction.”
Section 15(j) of the Agreement is hereby deleted and replaced with the following:
“Canadian Government Rights. If Customer is a Canadian government entity or a contractor to any Canadian government entity, any and all use, modification, reproduction, release, performance, display, or disclosure of Technology Offerings by such entity remains subject to and governed solely by the terms, conditions and restrictions set forth in this Agreement.”
Section 14(a) of the Agreement is hereby deleted and replaced with the following:
“DISCO will indemnify and defend Customer from and against any third party claim that the Technology Offerings infringe, violate or misappropriate the Canadian Intellectual Property Rights of any other Person; provided, that such indemnification obligations will not extend to any such claim to the extent based on (i) any modification to the Technology Offerings made by or on behalf of Customer without DISCO’s written approval, (ii) the combination of the Technology Offerings with any technology (including any software, hardware, firmware, system or network) not provided by DISCO, including the Third Party Services, (ii) the failure of Customer to permit the implementation of any Update provided by DISCO, (iv) any Customer Data, or (v) Customer’s use of the Technology Offerings in violation of the terms, conditions and restrictions set forth in this Agreement. If Customer’s use of the Technology Offerings is, or, in DISCO’s opinion, is likely to be, enjoined due to any such alleged infringement, then DISCO, at its sole option and expense, may, in addition to its indemnification obligations under this Section 14(a), do one or more of the following: (x) obtain for Customer the right to continue using the alleged infringing item as otherwise provided in this Agreement; (y) replace or modify the alleged infringing item so that it is no longer infringing, and require Customer to implement such replaced or modified item; or (z) terminate this Agreement upon notice to Customer and refund to Customer any pre-paid Fees for the Technology Offerings attributable to the period following the effective date of termination (calculated on a pro-rated basis). DISCO’s obligations pursuant to this Section 14(a) states the entire obligation of DISCO and its suppliers, and the exclusive remedy of Customer, with respect to the infringement, violation or misappropriation of any Intellectual Property Rights.”
Section 15(a) of the Agreement is hereby deleted and replaced with the following:
“THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF BRITISH COLUMBIA AND THE LAWS OF CANADA APPLICABLE THEREIN, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.”
Section 15(b) of the Agreement is hereby deleted and replaced with the following:
“EACH PARTY IRREVOCABLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE COURTS OF THE PROVINCE OF BRITISH COLUMBIA, LOCATED IN VANCOUVER, AND, SUBJECT TO THE PROVISIONS OF SECTION 15(c) (DISPUTE RESOLUTION; ARBITRATION) BELOW, HEREBY AGREES THAT SUCH COURTS WILL BE THE EXCLUSIVE PROPER FORUM FOR THE DETERMINATION OF ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT.”
Section 15(c) of the Agreement is hereby deleted and replaced with the following:
“i. Except with respect to claims for injunctive relief with respect to claims described in Section 15(d) below or claims for which the statute of limitations will run within the upcoming ninety (90) day period, in the event of a dispute between the parties arising out of or relating to this Agreement, and before a party initiates arbitration or other legal action in accordance with the terms of this Agreement, the parties agree to participate in the informal dispute resolution process as set forth in this Section 15(c)(i). If a party has a dispute with the other party that arises out of or relates to this Agreement and desires to initiates arbitration or other legal action, then such party shall provide notice to the other party of such dispute, its invocation of the provisions of this Section 15(c)(i) and its request to have an executive-level representative of each party meet in person in Vancouver, British Columbia (or such other mutually agreed upon place) to discuss such dispute within twenty (20) days following the date of such notice. Each party shall cause a designated executive-level representative to participate in such meeting and engage in good faith discussions regarding the dispute and a resolution thereof. If the parties do not resolve the disputed matter to their mutual satisfaction following earlier of (x) the 10th day following the date on which the executive-level meeting occurred or (y) within thirty (30) days following the date of delivery of the notice initiating the dispute resolution process under this Section 15(c)(i), then either party may pursue arbitration or other legal action with respect to such dispute pursuant to the provisions of Section 15(c)(ii) below.
ii. Subject to the provisions of Section 15(c)(i) above and Section 15(d) below, the parties agree that any dispute between the parties arising out of or relating to this Agreement shall be resolved by binding arbitration under the Arbitration Act (British Columbia) in Vancouver, British Columbia, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall be a lawyer licensed in British Columbia with experience in legal issues related to commercial software-as-a-service. The award shall be made within nine months of the filing of the notice of intention to arbitrate (demand), and the arbitrator shall agree to comply with this schedule before accepting appointment. This time limit may be extended by the arbitrator for good cause shown, or by mutual agreement of the parties. Any award in an arbitration initiated under this clause shall be limited to monetary damages and shall include no injunction or direction to any party other than the direction to pay a monetary amount. The arbitrator shall have the authority to allocate the costs of the arbitration process among the parties, including lawyer fees. Except as may be required by law or as necessary to enforce the award in a court of law, neither party nor the arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties, except that a party may disclose such information to its lawyers or auditors who are subject to confidentiality and ethical obligations. The parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine witnesses. In such event, the other party shall be required to present evidence and legal argument as the arbitrator may require for the making of an award.”
Section 15(f) of the Agreement is hereby deleted and replaced with the following:
“If a court of competent jurisdiction finds any provision of this Agreement to be illegal, invalid or unenforceable, that provision of the Agreement will not affect the legality, validity or enforceability of the remainder of this Agreement.”
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