Terms of Service 2021

1. 1.1. In this Agreement, the following words, expressions and abbreviations shall have the following meanings, unless the context otherwise requires:
   1. “Authorized Users” or “User(s)” shall mean employees, agents or contracted personnel of the Licensee who are authorized by the Licensee to use the Software, as specified in the ORDER FORM;
   2. “Bug Fixes” shall mean the emergency repair of any system operation that does not comply with current approved system specifications provided to the Licensee by disprz, including system errors, ‘hung’ or halted screens, or unexpected results that render the Software unusable for its intended purpose;
   3. “Business Day” shall mean any day (other than Saturday and Sunday) on which clearing banks are open for business in the United States of America;
   4. “Cloud” shall mean the Software owned and managed by disprz and, as of the date of this Agreement, deployed on Microsoft Azure data centres worldwide, and may include other cloud platforms utilized by disprz from time to time;
   5. “Confidential Information” shall mean any information disclosed by either Party pursuant to this Agreement that:
      • (a) is in written, graphic, machine-readable or other tangible form and marked “Confidential,” “Proprietary” or otherwise identified as confidential; or
      • (b) in the case of oral or visual disclosure, is identified as confidential at the time of disclosure and reduced to tangible form, marked as confidential and provided within 30 (thirty) days; or
      • (c) under the circumstances, would reasonably be considered confidential.

      Notwithstanding the foregoing:

      • all technology or proprietary information underlying the Applications belonging to disprz shall be deemed Confidential Information of disprz without any requirement for designation; and
      • all technology or proprietary information underlying the Licensee Data and User Content shall be deemed Confidential Information of the Licensee without any requirement for designation.
   6. “Documentation” shall mean documents made available to the Licensee or Authorized Users by or on behalf of disprz via www.disprz.net, other disprz-owned websites, through the Cloud, or via physical or electronic copies, as part of the ORDER FORM;
   7. “Force Majeure” shall mean any event beyond the reasonable control of a Party, including acts of God, war, civil disturbance, strikes, lockouts, terrorism, floods, fires, explosions, or governmental actions, which wholly or partially prevent performance of obligations under this Agreement;
   8. “License Period” shall mean the period for which the Software is subscribed by the Licensee under the ORDER FORM;
   9. “Licensee Data” shall mean all data created by or originating from the Licensee or its Authorized Users, including any data resulting from processing or manipulation of such data for use of the Software;
   10. “User Content” shall mean all user accounts and user data associated with the Licensee and its operations.

1. 2.1. With effect from the date on which the Licensee and disprz execute the Order Form (“Effective Date”), the Licensee agrees to subscribe to and use the Software developed by disprz on a Software-as-a-Service (SaaS) basis.
2. 2.2. From the Effective Date, disprz grants the Licensee a limited, worldwide, non-transferable, non-sublicensable and non-exclusive right to permit its Authorized Users to access and use the Software and the Documentation during the License Period, strictly in accordance with this Agreement and the ORDER FORM, and solely for the purpose of corporate employee learning, development and engagement.
3. 2.3. In consideration of the license granted under this Clause 2, the Licensee agrees to pay disprz the License Fee as set out in the ORDER FORM and to comply with all applicable terms and conditions of this Agreement.
4. 2.4. The Software is licensed and not sold. All rights not expressly granted under this Agreement are reserved by disprz and/or its licensors.
5. 2.5. The License shall commence on the Effective Date and shall continue for the License Period unless terminated earlier in accordance with the provisions of this Agreement.

1. 3.1. The Software shall be hosted, installed and maintained on the Cloud by disprz and shall be made accessible to the Licensee in accordance with the terms of this Agreement and the ORDER FORM, from the Effective Date or such other date as may be mutually agreed between the Parties.
2. 3.2. Access to the Software is subject to payment of the License Fee by the Licensee in accordance with the terms specified in the ORDER FORM.
3. 3.3. The Software shall be accessed and used solely by the Authorized Users of the Licensee.
4. 3.4. In the event of any unauthorized use of the Software attributable to any act or omission of the Licensee or its employees or representatives, without prejudice to disprz’s other rights and remedies, the Licensee shall be liable to pay disprz an amount equal to the fees (calculated in accordance with disprz’s standard rates and practices) that would have been payable had such use been duly licensed from the commencement of such unauthorized use.
5. 3.5. The applicable Service Levels and commercial terms relating to the Software under this Agreement are set out in the ORDER FORM.

1. 4.1. This Agreement grants the Licensee only limited rights to use the Software during the License Period. All rights not expressly granted are reserved by disprz.
2. 4.2. disprz grants the Licensee a limited, non-exclusive, non-transferable and non-sublicensable license to access and use the Software, subject to the following conditions:
   1. the Licensee has lawfully obtained access to the Software and complies with the terms of this Agreement; and
   2. the Licensee ensures that its Authorized Users (whether accessing locally or remotely) use the Software solely on behalf of the Licensee and in accordance with this Agreement and the ORDER FORM.
3. 4.3. The Licensee shall not:
   1. use, copy, modify, create derivative works from, or distribute the Software except as expressly permitted under this Agreement;
   2. reverse assemble, reverse compile, translate, or reverse engineer the Software or any programs subscribed to under this Agreement;
   3. use any components, files, modules, audio-visual content, or related licensed materials separately from the Software;
   4. sublicense, sell, rent, lease, assign or otherwise transfer the Software or the license, except as expressly permitted under this Agreement and/or the ORDER FORM;
   5. use the Software to store or transmit any infringing, defamatory, unlawful or tortious material, or any material in violation of third-party privacy rights; or
   6. remove, obscure, alter or modify any logos, trademarks, copyright notices, digital watermarks or other proprietary notices of disprz or its licensors contained in the Software or any related content, except as expressly agreed between the Parties.
4. 4.4. The Licensee’s right to access and use the Software does not grant any right to implement or use disprz’s patents, copyrights, trademarks or other intellectual property in any software, product or device used to access the Software.

1. 5.1. The Licensee shall:
   1. be responsible for the compliance of its Authorized Users with the terms of this Agreement;
   2. be solely responsible for the accuracy, quality, integrity and legality of the Licensee Data and the means by which such Licensee Data is acquired;
   3. be responsible for maintaining the security and confidentiality of all passwords and access credentials used to access the Software;
   4. use commercially reasonable efforts to prevent unauthorized access to or use of the Software;
   5. use the Software strictly in accordance with the Documentation made available by disprz and all applicable laws and regulations.

1. 6.1. In consideration of the license granted under this Agreement, the Licensee agrees to pay disprz the License Fee, as detailed in the ORDER FORM.
2. 6.2. The License Fee (together with applicable goods and services tax or other applicable taxes) shall be charged by disprz from the Effective Date and shall be payable by the Licensee within 30 Days from the date of receipt of disprz’s invoice, as a condition for continued access to the Software.
3. 6.3. If disprz does not receive payment within 30 Days after the due date, then without prejudice to any other rights and remedies available to disprz:
   1. disprz may, without liability to the Licensee, suspend or disable the Licensee’s account, password and access to all or part of the Software, and shall have no obligation to provide access to the Software or Documentation until all outstanding amounts are paid in full; and
   2. interest shall accrue on all overdue amounts at the rate of 1% per 30 days of delay, calculated from the due date until the date of full payment.
4. 6.4. If the Licensee elects to increase the number of Authorized Users under the subscription set out in the ORDER FORM, an additional License Fee shall be payable, where applicable, for such additional Authorized Users. Authorized User subscriptions are personal to each user and login credentials must not be shared among multiple users.

1. 7.1. Subject to the terms and conditions of this Agreement, disprz shall provide the Licensee with certain maintenance and support services, as further detailed in Clause 7.2 and the ORDER FORM (collectively, the “Services” or “Service Levels”), to assist in the implementation, use and proper functioning of the Software, including enhancements, Bug Fixes and improvements.
2. 7.2. In addition to enhancements, Bug Fixes and improvements, the following Services shall be included within the Service Levels provided to the Licensee:
   1. assistance with queries relating to implementation, operation, day-to-day usage and recommended configuration for the efficient functioning of the Software;
   2. user, configuration and administrator training at the time of implementation of the Software, as described in Clause 8 (Training Services). Any additional training requested thereafter may be provided at mutually agreed additional cost;
   3. disprz shall charge the Licensee separately for any training services requested after completion of the initial training;
   4. e-mail and telephone support during disprz’s standard business hours (8:00 AM to 5:00 PM EST, Monday to Friday), unless otherwise specified in the ORDER FORM.
3. 7.3. The Licensee acknowledges that this Agreement applies only to the Software functionality available as of the Effective Date and does not include any future features or functionality unless expressly stated in the ORDER FORM. Enhancements to existing features shall be provided at no additional charge. However, disprz reserves the right to offer any new features or functionalities not included in the subscribed Software at an additional fee, and access to such features shall be subject to payment of such fees.
4. 7.4. disprz shall not be responsible for providing Services in relation to any modifications, customizations or additions made to the Software by the Licensee or any third party. Any issues arising from such modifications shall not be covered under this Agreement and may be addressed under a separate agreement at additional cost.
5. 7.5. Service Levels applicable to the Licensee shall be as specified in the ORDER FORM.
6. 7.6. Notwithstanding the foregoing, disprz may, at its sole discretion, provide additional Services for issues arising outside the scope of this Agreement, subject to mutually agreed additional charges.

1. 8.1. disprz shall provide the Licensee, commencing from the Effective Date, with training services as specified in the ORDER FORM. Such training shall form part of the Services and is included within the License Fee, unless otherwise stated in the ORDER FORM.
2. 8.2. Any additional training services requested by the Licensee beyond those specified in the ORDER FORM shall be provided by disprz at additional charges, as mutually agreed between the Parties in accordance with this Agreement.

1. 9.1. This Agreement shall commence on the Effective Date and, subject to Clause 10 (Termination), shall remain in force for the duration of the License Period (the “Term”), unless terminated earlier in accordance with this Agreement.
2. 9.2. Upon expiry of the Term, and in the absence of notice in accordance with Clause 9.3, this Agreement shall automatically renew for successive periods equal to the Term, subject to mutual agreement between the Parties on any revised commercial terms.
3. 9.3. Either Party may provide written notice to the other Party at least 30 Days prior to the expiration of the Term or License Period, indicating its intention not to renew this Agreement or to renegotiate the terms and conditions applicable to the renewal.

1. 10.1. Either Party may terminate this Agreement without cause by providing at least 60 days’ prior written notice to the other Party.
2. 10.2. If the Licensee terminates this Agreement prior to the expiry of the License Period for reasons other than a breach by disprz, the Licensee shall not be entitled to any refund of the License Fee. In the event of termination due to a breach by disprz, the License Fee shall be refundable on a pro-rata basis.
3. 10.3. In the event of a Material Breach (as defined in Clause 10.4) by the Licensee, disprz shall provide written notice of such breach. If the Licensee fails to cure the breach within 30 Days of receipt of such notice (“Cure Period”), disprz shall be entitled to terminate this Agreement upon expiry of the Cure Period and pursue all remedies available under this Agreement and applicable law.
4. 10.4. For the purposes of this Agreement, “Material Breach” shall include:
   1. breach of intellectual property rights; or
   2. failure by the Licensee to resolve implementation issues relating to the Software for a period exceeding 30 Days after notification by disprz, where such issues are not attributable to disprz.
5. 10.5. Upon termination of this Agreement for any reason, the Licensee shall promptly cease all use of the Software. Any provisions of this Agreement which by their nature are intended to survive termination shall continue in full force and effect.
6. 10.6. disprz reserves the right to terminate this Agreement upon 30 days’ prior written notice and/or suspend access to the Software in the event of:
   1. non-payment of License Fees or renewal fees by the Licensee; or
   2. breach of the terms and conditions of this Agreement by the Licensee,
   provided such events are not attributable to any act or omission of disprz. disprz shall notify the Licensee of any such suspension. disprz shall not be liable for any damages arising from such suspension.
7. 10.7. If access to the Software is suspended due to non-payment, such access may be reinstated at disprz’s sole discretion upon receipt of all outstanding payments. Renewal of the License Period shall be governed by Clause 6 (Consideration and Payment Terms) and Clause 9 (Term and Renewal).

11. CONSEQUENCES OF TERMINATION

1. 11.1. Upon expiry of the License Period or earlier termination of this Agreement, disprz shall cease to provide access to the Software to the Licensee and its Authorized Users.
2. 11.2. Upon termination, all rights and authorizations granted by either Party shall terminate immediately, and all outstanding payments accrued up to the effective date of termination shall become immediately due and payable.
3. 11.3. Any accrued rights of the Parties as at termination, and any provisions which are expressly or implicitly intended to survive termination, shall continue in full force and effect.

1. 11.1. Upon expiry of the License Period or earlier termination of this Agreement for any reason in accordance with Clause 10 (Termination), disprz shall promptly cease providing access to the Software to the Licensee and all Authorized Users.
2. 11.2. Upon termination of this Agreement, all rights and authorizations granted by either Party shall terminate with immediate effect, and all amounts accrued up to the effective date of termination shall become immediately due and payable.
3. 11.3. The accrued rights of the Parties as at termination, and any provisions which by their nature are intended to survive termination (whether expressly stated or implied), shall remain in full force and effect and shall not be affected or prejudiced by such termination.

1. 12.1. Subject to the limited rights expressly granted hereunder, disprz reserves all rights, title and interest in and to the Software, including all related intellectual property rights. The Licensee acknowledges that disprz is, and shall be the sole owner of all intellectual property rights in and to any solutions, analytical applications and/or products that have been developed by disprz. No rights are granted to the Licensee hereunder other than as expressly set forth herein.
2. 12.2. disprz acknowledges that any intellectual property already owned by the Licensee and residing on the platform of the Software by virtue of the Licensee having inserted it, shall remain the sole property of the Licensee.
3. 12.3. The Licensee further acknowledges all intellectual property in any corrections, enhancements, updates, modifications, versions, translations or any derivatives of the Programs shall remain the property of disprz.
4. 12.4. The Licensee shall be the sole owner of all intellectual property in and to any content that has been developed by the Licensee using the disprz Software.
5. 12.5. The Parties recognize that all third party intellectual property rights are the exclusive property of their respective owners. Each Party shall inform the other Party of any third party intellectual property rights that may be required under the terms of this Agreement. Under such circumstances, both Parties shall seek to procure appropriate licenses to use such third party intellectual property rights from the owner of such third party intellectual property rights, and shall agree on the manner in which the costs of such licenses shall be borne.

1. 13.1. Each Party may receive Confidential Information (whether communicated orally, in writing, electronically or otherwise) from the other Party concerning its business and affairs (including proprietary information, licensor developments and technical data) in connection with the negotiation or performance of this Agreement, solely for the purpose of fulfilling its obligations under this Agreement.
2. 13.2. The Party receiving Confidential Information shall be referred to as the “Receiving Party”, and the Party disclosing such information shall be referred to as the “Disclosing Party”.
3. 13.3. Each Party shall hold the Confidential Information of the other Party in strict confidence and shall not disclose such information except to its employees, agents, vendors, consultants, affiliates, sub-contractors, advisors and legal counsel who have a need to know such information for the purposes of this Agreement and who are bound by confidentiality obligations no less restrictive than those set out herein.
4. 13.4. The Receiving Party shall not, and shall ensure that its representatives do not, during the Term of this Agreement and for a period of one (1) year thereafter, disclose, use, copy, adapt or modify any Confidential Information of the Disclosing Party without prior written consent, and shall take all reasonable measures to prevent unauthorized disclosure or use.
5. 13.5. The obligations of confidentiality shall not apply to information that the Receiving Party can demonstrate:
   1. was publicly available or generally known at the time of disclosure, or subsequently enters the public domain other than through a breach of this Agreement; or
   2. was lawfully in the Receiving Party’s possession prior to disclosure and not subject to any obligation of confidentiality.
6. 13.6. Disclosure of Confidential Information shall not constitute a breach of this Clause where:
   1. disclosure is made to the Receiving Party’s representatives on a need-to-know basis for performance of this Agreement, provided such persons are bound by confidentiality obligations no less restrictive than those contained herein; or
   2. disclosure is required by applicable law, regulation, court order or governmental authority, provided that (to the extent permitted):
      1. the Receiving Party provides prompt notice to the Disclosing Party and reasonable assistance (at the Disclosing Party’s cost) to contest such disclosure; and
      2. the Receiving Party cooperates with the Disclosing Party and uses reasonable efforts to limit the scope of such disclosure.
7. 13.7. The Parties acknowledge that any breach of this Clause 13 may cause irreparable harm for which monetary damages may be inadequate. Accordingly, the affected Party shall be entitled to seek injunctive relief, specific performance and any other equitable remedies, in addition to any other remedies available at law.
8. 13.8. The provisions of this Clause 13 shall survive termination or expiry of this Agreement for a period of one (1) year.

1. 14.1. Each Party shall indemnify, defend and hold harmless the other Party and its officers, directors, employees, agents, successors and assigns from and against any and all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of or in connection with such Party’s breach of its obligations or warranties under this Agreement.
2. 14.2. disprz shall indemnify, defend and hold the Licensee harmless against any third-party claims alleging that the Licensee’s use of the Software in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights.
3. 14.3. The indemnifying Party shall not be liable under this Clause 14 unless the indemnified Party:
   1. provides written notice of the claim within 30 Days of becoming aware of such claim;
   2. grants the indemnifying Party sole control over the defense and settlement of the claim, provided that no settlement imposes any financial or other obligation on the indemnified Party without its prior written consent; and
   3. provides reasonable cooperation and assistance in the defense of the claim, at the indemnifying Party’s expense.
   Failure to comply with the above shall relieve the indemnifying Party of its obligations under this Clause to the extent it is prejudiced thereby.
4. 14.4. This Clause 14 sets forth the sole, exclusive and entire liability of the Parties to each other with respect to indemnification under this Agreement.

1. 15.1. To the maximum extent permitted by applicable law, in no event shall either Party’s aggregate liability arising out of or related to this Agreement, whether in contract, tort or under any other theory of liability, exceed the total amount paid by the Licensee under this Agreement for the then-current Term or, with respect to any single incident, the amount payable for the remainder of the License Period on a pro-rata basis. This limitation shall not apply to (i) breach of confidentiality obligations, or (ii) third-party claims arising from infringement or misappropriation of intellectual property rights. Nothing in this Clause shall limit the Licensee’s obligation to pay fees due under Clause 6 (Consideration and Payment Terms).
2. 15.2. The limitations and exclusions of liability set out in this Clause 15 shall not apply:
   1. in cases of gross negligence or willful misconduct; or
   2. to indemnification obligations under Clause 14 (Indemnification).

1. 17.1. Any dispute, controversy or claim arising out of or in connection with this Agreement or its performance shall be referred to and finally resolved by binding arbitration upon written notice by either Party to the other.
2. 17.2. The arbitration shall be conducted in accordance with the applicable arbitration laws of the United States and shall take place in Delaware, USA. The language of the arbitration proceedings shall be English.
3. 17.3. The arbitration shall be conducted by a sole arbitrator mutually appointed by the Parties in accordance with applicable laws. The costs and fees of the arbitrator shall be shared equally between the Parties, unless otherwise determined by the arbitrator.
4. 17.4. The arbitral award shall be final and binding on the Parties and may be enforced in any court of competent jurisdiction, including the courts located in Delaware, USA.
5. 17.5. Nothing in this Clause shall prevent either Party from seeking interim or permanent injunctive or equitable relief from any court of competent jurisdiction. Seeking such relief shall not waive the obligation to resolve disputes through arbitration in accordance with this Clause.

1. 19.1. This Agreement, together with the terms set out in the ORDER FORM, constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings, proposals, representations or agreements, whether written or oral, relating to such subject matter.
2. 19.2. No amendment to, modification of, or waiver under this Agreement shall be valid or binding unless made in writing and duly signed or electronically accepted by authorized representatives of both Parties.
3. 19.3. In the event of any conflict or inconsistency between the provisions of this Agreement and the terms of the ORDER FORM, the terms of the applicable ORDER FORM shall prevail to the extent of such conflict.