Terms of Service

Effective date: May 3, 2024

Thank you for using the www.disco.co website (“Site”) and the all-in-one platform to build, market and scale learning communities (collectively, the “Service”) operated by Disco Inc. (“Disco”, “we”, “us”, or “our”). Please read these terms of service (”TOS”) carefully. They, along with our Privacy Policy and an associated order whether placed on our website or otherwise agreed (“Order Form”) constitute a legally binding agreement and contain terms limiting Disco’s liability to you, exclusions of certain warranties, and terms relating to access to and use of data collected and analysed by the Service.

BY CLICKING THE “I ACCEPT” BUTTON, OR SIGNING OUR COMMERCIAL TERMS, OR COMPLETING THE REGISTRATION PROCESS, AND/OR USING THE DISCO SERVICE, YOU AGREE TO BE BOUND BY THESE TOS. If you are using the Disco Platform on behalf of a company, you must have the authority to bind that company to these TOS. If you are not willing to be bound by these TOS, you should not complete the registration process and may not use the Disco Platform.

You must be at least 13 years of age to use the Site. If you are younger than 13, you are not allowed to use the Site or set up an account. If we find out that you are younger than 13 and using the Site, we may terminate your account.

These TOS apply to all Users of the Service. “Users” shall mean either a Creator or a Member who has registered to use or access the Service. “Creators” means a User who has administrative access and who creates or shares Digital Learning Experiences on the Disco platform via their own branded learning community). “Digital Learning Experiences” means digital content created with the Creator, whether live or pre-recorded, of fixed duration or those with monthly memberships and made available to Members through the Service. “Member” means a User who is enrolled in Digital Learning Experiences through the Service.

We reserve the right to change or modify any of these TOS at any time, in our sole discretion. Acceptance of such changes or modifications is constituted by either: (i) continued use of any part of the Disco Platform thirty (30) days after the modified TOS have been posted to the Disco website or (ii) your indication of agreement to the updated terms, via click-through or otherwise.

1. Services

1.1 Provision of the Services

Disco will make the Services available to Users on the terms and conditions set out in these TOS and conditional on a User: (i) making commercially reasonable efforts to cooperate with the reasonable requests of Disco; (ii) providing Disco with access to any required systems of User or third parties (and making all required third-party disclosures and obtaining all required third party consents in respect of such access) which User wishes the platform to obtain data from or provide data to in the course of providing the Services, and (iii) to the extent a Digital Learning Experiences includes Personal Information, providing all notices and disclosures and obtaining all necessary consents and authority in respect of such Personal Information as required under and in compliance with applicable privacy law in order for Disco to provide the Services on behalf of Creator and process Personal Information in the manner set out in the Disco Privacy Policy.

1.2 Provisioning of the Platform

Disco will: (i) provide to User basic support through the Website as described more fully in Section 7 (User Support)(Creator’s shall provide Members with all support related to the Digital Learning Experiences); and (ii) use commercially reasonable efforts to make the platform reasonably available with minimal downtime; except for: (A) downtime and scheduled upgrades (as described more fully below); and (B) unavailability caused by circumstances beyond Disco’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems, Internet service provider failures or delays, or the unavailability of any third-party provided goods or services.

1.3 Platform Updates and Scheduled Downtime

Disco may update the functionality and user interface of the platform from time to time in its sole discretion as part of its ongoing mission to improve the Service and the use of the Service by Disco’s other users. Disco may from time-to-time schedule downtime for maintenance and upgrades. Disco will provide advance notice for scheduled downtime, except for where such downtime is required, in Disco’s sole discretion, in order to conduct urgent maintenance or upgrades.

1.4 No Responsibility for Data Storage and Backup

Disco cannot guarantee that the platform will provide data backups of any User Data stored on it. It is User’s responsibility to back up onto User’s own local system all User Data, including all data, files and records that User submits to Disco.

2. License Grants

2.1 License Grants by Disco

Subject to the terms and conditions of these TOS and User’s compliance therewith, Disco grants to User a revocable, non-exclusive, non-transferable license during the Term to access and use the platform over the Internet and through the then available standard interface for the platform in connection with receiving the Services in accordance with these TOS.

2.1 License Grants by User

Subject to the terms and conditions of these TOS, including Disco’s confidentiality obligations, User grants to Disco a non-exclusive, transferrable, sublicensable, royalty-free, fully paid-up, worldwide perpetual, irrevocable sublicensable license to copy, use, perform, disclose, transmit, reproduce, modify, develop, access, collect and store the Digital Learning Experiences and any User Data for the purpose of: (i) publishing, performing, displaying, and marketing such information on the Disco Platform, Site, or publicly, including to Members;(ii) providing the Services;(iii) creating pre-recorded courses or live learning experiences from any Digital Learning Experiences; (iv) improving and enhancing the Services and Disco’s other offerings; and(v) promotion of the Disco platform; and(vi) generating data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”). Disco may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to the Creator of any kind. “User Data” means Digital Learning Experiences and data, information, content, records and files that Creator or any Member loads or enters into, transmits to, or makes available to the Services, including but not limited to Personal Information. It also includes any comments posted on any current or future discussion board features on Disco.

3. Reservation of Rights

3.1 Rights Reserved by Disco

Disco expressly reserves all rights in the Services, the platform and all materials (other than Personal Information) provided by Disco hereunder and not specifically granted to User (“Disco Property”). All right, title and interest in the Disco Property, as well as any update, modification, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein will remain with Disco (or Disco’s third-party suppliers, as applicable). The Disco Property is licensed on a subscription basis under these TOS and not “sold” to User.

3.2 Rights Reserved by User

User expressly reserves all rights in any User Data that User loads, transmits to or creates or enters into the platform., subject to the license that User grants Disco in accordance with the provisions of these TOS, and provided that User does not acquire any intellectual property rights in the Services, the platform or any elements of any of the foregoing.

3.3 Removal

We reserve the right to remove any User Data from Disco at any time, for any reason (including, but not limited to, if someone alleges you contributed that content in violation of these Terms), in our sole discretion, and without notice.

3.4 Intellectual Property and Reporting Infringement

We respect others’ intellectual property rights, and we reserve the right to delete or disable content alleged to be infringing, and to terminate the accounts of repeat alleged infringers. You promise to abide by copyright notices, trademark rules, information, and other restrictions you may receive from us or that are posted on Disco. To learn more about the Digital Millennium Copyright Act, which governs how we handle these reports, click here.

4. Internet Security Disclaimer; Limitation, Suspension or Termination of Access

4.1 Internet Security Disclaimer

As between Disco and User, User is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all User Data. User understands that the technical processing and transmission of User Data is fundamentally necessary to use of the Services. Therefore, User expressly consents to Disco’s storage of User Data, which will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Disco. Disco is not responsible for any User Data which is delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across public networks not owned or operated by Disco, including, the Internet, third party websites, and User’s local network. User agrees that Disco is not in any way responsible for any interference with User’s use of or access to the Services or security breaches arising from or attributable to the Internet, and User waives any and all claims against Disco in connection therewith.

4.2 Limitation, Suspension or Termination of Access

In addition to any other suspension or termination rights of Disco pursuant to these TOS, Disco may suspend, or limit User’s access to or use of the Platform or the Services, or any component thereof, without notice in order to: (i) prevent any misuse or abuse of the Service; (ii) prevent any damage to, or degradation of the integrity of Disco’s systems or Disco Service; (iii) comply with any law, regulation, court order, or other governmental request or order; or (iv) otherwise protect Disco from potential legal liability or harm to its reputation or business. Disco will use commercially reasonable efforts to notify User of the reasons for such limitation, suspension or termination action as soon as reasonably practicable. In the event of a limitation or suspension, Disco will promptly restore User’s access to the Service as soon as the event giving rise to the limitation or suspension has been resolved, as determined in Disco’s sole discretion. Nothing contained in these TOS will be construed so as to limit Disco’s ability to take action or invoke remedies, or act as a waiver of Disco’s rights in any way with respect to any of the foregoing activities. Disco will not be responsible for any loss or damages incurred by User as a result of any limitation, termination or suspension of access to or use of the Platform or the Services under this Section.

5. User Responsibilities and Restrictions

5.1 User ID

Upon User’s request, but subject to any applicable limitations associated with User’s Subscription Package, Disco will grant rights to, and invite User to establish an account on the service and create an Authorized Admin ID and password to access the service (“Creator Admin”) a Creator Admin will have ability to invite Members to access its Account and subscribe to Digital Learning Experiences. Should Creator wish, it may provide any legal agreements and privacy policies in respect of its Members who access the User Data or receive Digital Learning Experiences from the Creator that it wishes in addition to the licensing of the Digital Learning Experiences to Members which is already addressed herein. Members may only access and use the platform and the Services through a Member ID assigned by the User. User is responsible for any and all activity occurring under the Member IDs associated with Members. User is responsible for all use of the Service by Members and for maintaining the confidentiality of their Member ID and will promptly notify Disco of any actual or suspected unauthorized use of the Service.

5.2 Creator Responsibilities and Restrictions

Creator agrees that Creator is responsible for the compliance by the Members with these TOS and for the Members’ use of the Service, as well as for ensuring that the Members maintain the confidentiality of their Member IDs. Without limiting the generality of any of the foregoing, Creator agrees that Creator will not, and will not permit any person to:

5.2.1 - use the Service other than as permitted by these TOS;

5.2.2 - use the Service to send, store, publish, post, upload or otherwise transmit any User Data in violation of any warranty, representation or obligation of User under these TOS;

5.2.3 - license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service (in whole or in part) available to any third party, other than to the Members, or as otherwise expressly contemplated in accordance with these TOS;

5.2.4 - use the Service to upload, collect, transmit, store, use or process, or ask Disco to obtain from third parties, any User Data: (A) that User does not have the lawful right to copy, transmit, distribute, and display (including any User Data that would violate any confidentiality or fiduciary obligations that User might have with respect to the User Data); (B) for which User does not have the authority, consent or permission from the individual(s) to whom the Personal Information relates in accordance with applicable privacy legislation; (C) that infringes, misappropriates or otherwise violates any intellectual property or other proprietary rights of any third party (including any copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity); (D) that is tortious, defamatory, obscene, or offensive; (E) that violates, or encourages any conduct that would violate, any applicable law or regulation (including applicable privacy and anti-spam legislation) or would give rise to civil or criminal liability; (F) is obscene, lewd, lascivious, violent, or otherwise objectionable; (G) victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability; (H) displays material that exploits children, or otherwise exploits children under 18 years of age; or (I) is false or misleading.

5.2.5 - use the Service to send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another

5.2.6 - continue to use the Service in a manner that interferes with or disrupts the integrity or performance of the Service following a notice from Disco of such use;

5.2.7 - attempt to gain unauthorized access to the Service or its related systems or networks;

5.2.8 - use or knowingly permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Service;

5.2.9 - use any data mining, robots or similar data gathering or extraction methods (including electronic address harvesting);

5.2.10 - access the Service for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Service; or

5.2.11 - copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Service or any part thereof or otherwise attempt to discover any source code or modify the Service, except as expressly provided for in these TOS.

5.3 User Responsibility for User Data

User has sole responsibility for providing all notices, making all disclosures and otherwise obtaining all necessary consent and authority required by and in accordance with applicable laws regarding User Data (including any Personal Information). Disco will use the User Data it is provided by User or third parties in performing the Services “as is”, and is not responsible for reviewing, validating or otherwise confirming the accuracy, appropriateness or completeness of User Data.

5.4 Removal of User Data on Request by User

User may control the User Data stored by the Services, including (subject to Section 10(b)) by deleting or requiring Disco to delete all or part of the User Data (including Personal Information) at any time.

5.5 Members and Third-Parties

5.5.1 - Digital Learning Experiences and Forums: Digital Learning Experiences posted to Disco and any content in chat rooms, bulletin boards or forums are the sole responsibility of the person or organization from whom such content originated. Members access all such content at their own risk. Disco isn’t liable for any errors or omissions in any such content and Members hereby release Disco from any damages or loss you might suffer in connection with such a post.

5.5.2 - Other Members on Disco: Member interactions with organizations and individuals found on or through Disco, including payment for Digital Learning Experiences, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and individuals. You agree that Disco shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. We can’t guarantee the identity of any users with access to Disco and are not responsible for which users gain access to our products and services.

5.5.3 - Third-Party Content: Disco may contain links or connections to third party websites or services that are not owned or controlled by us. Disco has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third-party websites. You release and hold us harmless from any and all liability arising from your use of any third-party website or service.

5.5.4 - In the event that you have a dispute with one or more other users of Disco or with a third party, you release us, our officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or Disco.

5.6 Digital Learning Experiences & Subscriptions on Disco

5.6.1 - If you publish a course through Disco, you are a “Creator”. If you subscribe to Digital Learning Experiences, you are a Member. Members subscribe to courses directly through the Creator’s subdomain on Disco.

5.6.2 - A Creator may offer their course for free or for a fee, to be determined in the Creator’s discretion. Members may choose to join a Digital Learning Experiences on Disco and agree to incur any applicable fees.

5.6.3 - Creators will set prices for their courses, and may change the prices at their sole discretion through their Creator account, though no price changes shall apply retroactively.

5.6.4 - In the event that a Member has a dispute with a Creator, Members agree that Disco is under no obligation to become involved other than to direct any inquiries regarding a Creator’s course to the appropriate Creator.

6. Term

6.1

Any Services shall commence on the Effective Date as specified in the applicable Order Form and shall be valid thereafter for the Initial Term specified in the unless earlier terminated in accordance with these TOS.

7. Creator Support

7.1 Disco will provide the following support to Creator:

7.1.1 - Web and Email Support. Creator will have access to Disco’s technical support part of the Website and may use the available interfaces, including any Creator support email addresses posted thereon, to submit service requests.

7.1.2 - Incident Management. Disco will use commercially reasonable efforts to correct any reproducible failure of the Service to conform to its expected operation; provided that Disco will not have an obligation to provide a correction for non-material nonconformities.

8. Fees and Payment

8.1 Fees

Creator will pay to Disco the Fees in the manner, amounts and frequencies indicated on the Order Form.

8.2 Payment

Unless otherwise set out in the Order Form or agreed by the Parties (i) Fees are payable in advance on or after the first day of the applicable Billing Period, and (ii) One-time fees (including any fees for add-ons) are charged at the time in which the applicable Order Form is approved.

8.3 Invoices

From time to time, Disco may prepare and send to User, at the then-current contact information on file with Disco, invoices for any Fees and other amounts that have become due and payable under these TOS. Unless otherwise expressly stipulated in an invoice, User agrees to pay all invoiced amounts by: 1) the Additional Payment Terms section set out in the Order Form; or 2) if there no due date specified in the Order Form, the date User is in receipt of the invoice.

8.4 No Set-Off and Late Payment Charge

User may not withhold or “set-off” any amounts due under these TOS. Unless otherwise indicated in these TOS, all Fees are non-refundable and Disco will provide no full or partial credits or refunds, including in respect of Services that are paid for but not used by User. Disco reserves the right to suspend User’s access to the Service until all due amounts are paid in full. Any late payment will be increased by the costs of collection (including reasonable legal fees) and will incur interest at the maximum legal rate per month or fraction thereof until fully paid.

8.5 Certain Taxes

Fees and charges quoted in these TOS do not include, and User will pay, indemnify and hold Disco harmless from Disco all sales, use, gross receipts, value-added, GST/HST, personal property or other taxes, and all applicable duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with these TOS, other than taxes based on the net income or profits of Disco.

8.6 Free Trial

Disco may offer a free trial Subscription for a limited period of time (“Free Trial”). You may be required to enter your billing information in order to sign up for the Free Trial. If you do enter your billing information when signing up for the Free Trial, you will not be charged by Disco until the Free Trial has expired. On the last day of the Free Trial period, unless you cancelled your Subscription, you will be automatically charged the applicable Subscription fees. At any time and without notice, Disco reserves the right to (i) modify the terms and conditions of the Free Trial offer, or (ii) cancel such Free Trial offer.

9. Confidential & Proprietary Information

9.1 Definitions

For purposes of this section, a Party receiving Confidential & Proprietary Information (as defined below) will be the “Recipient” and the Party disclosing such information will be the “Discloser”, and “Confidential & Proprietary Information” includes all information disclosed by Discloser to Recipient during the Term of these TOS and marked as “confidential” or “proprietary” or which a reasonable person would understand to be confidential or proprietary; provided that: (a) the terms and conditions of these TOS and all parts of the Service, whether marked as “confidential” or “proprietary” or not, will be considered to be Disco Confidential & Proprietary Information; and (b) all User Data , whether marked as “confidential” or “proprietary” or not, will be considered User’s Confidential & Proprietary Information; and further provided that Discloser’s Confidential & Proprietary Information (other than Personal Information) does not include: (i) information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Discloser’s Confidential & Proprietary Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.

9.2 Covenant

Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose such Confidential & Proprietary Information of the Discloser to any person or entity, except to its own personnel, affiliates or contractors having a “need to know”, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential & Proprietary Information of the Discloser except to exercise its license rights or perform its obligations under these TOS; or (iii) alter or remove from any Confidential & Proprietary Information of the Discloser any proprietary legend. Recipient will use at least the same degree of care in safeguarding the Confidential & Proprietary Information of the Discloser as it uses in safeguarding its own confidential information of a similar nature, but in no event will less than due diligence and reasonable care be exercised. Each party will be deemed to have fulfilled its confidentiality obligations under this Section 10, if it affords the other party’s Confidential & Proprietary Information at least the same degree of care it takes in protecting its own confidential information from unauthorized disclosure (but in no event using less than a reasonable degree of care). Upon the earlier of: (A) Discloser’s written request; and (B) the termination or expiration of these TOS, regardless of whether a dispute may exist, Recipient will return or destroy (as instructed by Discloser) all Confidential & Proprietary Information of Discloser in its possession or control and cease all further use thereof. Disco may retain a copy of such Confidential & Proprietary Information for the sole purpose of and to the extent necessary for it to comply with applicable and legal, regulatory, or reasonable internal back-up or archival policies and requirements. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential & Proprietary Information to the extent that such disclosure is necessary for the Recipient to enforce its rights under these TOS or is required by law or by the order of a court or similar judicial or administrative body, provided that the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order.

9.3 Injunctive Relief

Recipient acknowledges that violation of the provisions of this section would cause irreparable harm to Discloser not adequately compensable by monetary damages. In addition to other relief, it is agreed that injunctive relief will be available without necessity of posting bond to prevent any actual or threatened violation of such provisions.

9.4 Analytics

Disco its subcontractors and agents shall be permitted to access, collect, analyse and use the User Data and other information relating to the Services and the Platform to improve and enhance the Services and the Platform and for other development, diagnostic and corrective purposes and disclose such data solely in aggregate or other de-identified form in connection with its business

10. Creator Warranty; Disclaimer

10.1 Creator Warranty

Creator represents and warrants to, and covenants with Disco that the Creator agrees to: (i) maintain legally-adequate privacy policies and provide all required disclosures to its Members; (ii) maintain legally-adequate terms of service (or similar) and provide all required disclosures; (iii) obtain all necessary rights, releases, and consents to allow User Data to be collected, used, and disclosed in the manner contemplated by this Agreement and to grant Disco the rights set out in this Agreement; and (iv) that the collection, use, and disclosure of User Data under this Agreement will not violate any third-party rights, including intellectual property, privacy, data protection, and publicity rights. If User receives any take down requests or infringement notices related to User Data, it must promptly: (a) stop using the related item with the Service; and (b) notify Disco. If Disco receives any take down requests or infringement notices related to User Data, Disco may respond in accordance with its policies and will promptly notify and consult with User on next steps. User acknowledges that Disco does not monitor or review User Data, and that as between the parties, User is responsible for all User Data.

10.2 Disclaimer

THE SERVICE AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY DISCO TO USER ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, DISCO HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, DISCO DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, DISCO EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO USER IN CONNECTION WITH USER’S USE OF THE SERVICE WILL BE ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY USER FOR ANY PURPOSE WHATSOEVER.

11. Indemnity

11.1

User agrees to defend Disco and its affiliates against any claim, demand, suit, or proceeding made or brought against Disco by a third party arising out of or in connection with User Data or any use of the Services in violation of these TOS, and shall indemnify Disco and its affiliates for any damages, attorney fees and costs finally awarded against Disco or any of its affiliates as a result of, and for amounts paid by Disco or any affiliate under a court-approved settlement of, such claim, demand, suit or proceeding; provided that Disco (a) promptly gives User written notice of the claim, demand, suit or proceeding; (b) gives User sole control of the defence and settlement of the claim, demand, suit or proceeding (provided that User may not settle any claim, demand, suit or proceeding unless the settlement unconditionally releases Disco and its affiliates of all liability); and (c) provides to User all reasonable assistance, at User’s expense.

12. Limitation of Liabilities

12.1

The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

12.1.1 - DISCO OR ITS AFFILIATES SHALL NOT BE LIABLE IN ANY WAY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, PUNITIVE DAMAGES OR PENALTIES (EVEN IF DISCO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR PENALTIES), ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF REVENUE, CHANGE IN SHARE PRICE, LOSS OF ANTICIPATED PROFITS OR LOST BUSINESS. THIS LIMITATION OF LIABILITY APPLIES TO ANY DAMAGES OR PENALTIES, INCLUDING WITHOUT LIMITATION THOSE CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELAY IN OPERATION OR TRANSMISSION, WHETHER FOR BREACH OF CONTRACT, TORTIOUS CONDUCT, ACTS OR OMISSIONS, NEGLIGENCE, OR UNDER ANY OTHER CLAIM OR CAUSE OF ACTION.

12.1.2- IN NO EVENT SHALL DISCO’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE GREATER OF (I) THE AMOUNTS ACTUALLY PAID BY AND DUE FROM USER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY OR (II) $100 CANADIAN.

13. Notices

13.1

Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or two days after being sent by first class mail postage prepaid to the official contact designated in the Order Form and immediately after being received by the other party’s server. Notices must be in writing and sent to the respective email or postal address set out in the Order Form. Disco may change its contact information by giving notice thereof to User. User may change its contact information by giving notice to Disco and User is solely responsible for keeping its contact information on file with Disco current at all times during the Term.

14. Termination

14.1 Generally

Either Party may, in addition to other relief, suspend or terminate these TOS if the other Party: (i) commits a material breach of these TOS, and either: (A) fails within 30 days after receipt of notice of such breach to correct such material breach or to commence corrective action reasonably acceptable to the aggrieved Party and proceed with due diligence to completion; or (B) such material breach is incapable of being cured; or (C) becomes insolvent, makes an assignment for the benefit of its creditors, a receiver is appointed, or a petition in bankruptcy is filed with respect to the Party and is not dismissed within 30 days.

14.2 Survival

Upon termination or expiration of these TOS for any reason: (a) all rights and obligations of both Parties (except for User’s payment of all Fees and other amounts then owing in accordance herewith), including all licenses granted hereunder, will immediately terminate except as provided below; (b) within 30 days after the effective date of termination, each Party will comply with the obligations to return or destroy all Confidential Information of the other Party, as set forth Section 10 (Confidential & Proprietary Information). Notwithstanding the foregoing, User understands and agree that it may not be possible to completely delete all User Data from Disco’s records or backups, and that your Public Posts may remain viewable elsewhere to the extent that they were copied or stored by other users. Please refer to our Privacy Policy to understand how we treat information you provide to us after you have stopped using Disco. The following Sections will survive expiration or termination of these TOS for any reason: Section 4 (Reservation of Rights), Section 6 (User Responsibilities and Restrictions), Section 10 (Confidential & Proprietary Information), Section 11 (User Warranty; Disclaimer; Indemnity), Section 12 (Limitation of Liabilities), Section 14.2 (Survival), and Section 15 (General Provisions).

15. General Provisions

15.1 Assignment

User may not assign these TOS to any third party without Disco’s prior written consent, such consent not to be unreasonably withheld, except that User may assign its rights (but not obligations) hereunder to an affiliate of User. Disco may assign these TOS, in whole or in part, without User’s consent to: (i) any affiliate of Disco; or (ii) any third party that purchases all or substantially all of Disco’s assets related to the provision of the Services, providing such third party is not a competitor of the User. Any assignment in violation of this Section will be void. The terms of these TOS will be binding upon and inure to the benefit of the Parties’ successors and permitted assignees.

15.2 Choice of Law

This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties hereby irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting in Toronto, Ontario. The U.N. Convention on Contracts for the International Sale of Goods will not apply to these TOS.

15.3 Right to List as a User

Use of User’s name in any marketing materials or press announcements will be submitted to User in advance for approval, provided that such approval will not be unreasonably withheld.

15.4 Feedback

Disco shall be free to use, disclose, reproduce, license or otherwise distribute, make available and exploit the Feedback as it sees fit, entirely without obligation or restriction on account of any intellectual property rights or otherwise.

15.5 Construction

Except as otherwise provided herein, the Parties rights and remedies under these TOS are cumulative. The term “including” means “including without limitation.” The headings of sections of these TOS are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of Disco herein mean the right of Disco to withhold such consent or exercise such discretion (as applicable) reasonably. Unless otherwise indicated in the Order Form, all dollar amounts are in United States Dollars.

15.6 Force Majeure

Neither Party will be liable for delays caused by events beyond its reasonable control, except non-payment of amounts due hereunder will not be excused by this provision.

15.7 Severable

Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable will be automatically conformed to the minimum requirements of law and all other provisions will remain in full force and effect.

15.8 No Waiver

Waiver of any provision hereof in one instance will not preclude enforcement thereof on future occasions. Any waiver by one Party of any default by the other Party will not affect or impair any rights of the first Party arising from any subsequent default by that other Party.

15.9 Independent Contractors

User’s relationship to Disco is that of an independent contractor, and neither Party is an agent or partner of the other. User will not have, and will not represent to any third party that it has, any authority to act on behalf of Disco.

15.10 Entire Agreement

These TOS, together with any Order Forms, and the Disco Privacy Policy constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all other communications, whether written or oral. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.

15.11 Amendments

No amendment, supplement, modification, waiver or termination of these TOS and, unless otherwise specified, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. If you have any questions, comments, or concerns regarding these Terms or our products and services, please contact us at privacy@disco.co