Trust and privacy
is in
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BACKGROUND

Disclo provides its cloud platform offered under a software-as-a-service model and services to help manage employee disability accommodations, together with associated software, data, information, and documentation (collectively the “Disclo Services”) to Client and Client’s employees that Client authorizes to use the Disclo Services (“Authorized Users”) under the terms of this Agreement. By entering into this Agreement on behalf of Client,, you represent that you have the authority to bind such entity to the terms of this Agreement. If you do not have such authority, or Client does not agree to all of the terms of this Agreement, Client may not use the Disclo Services. 

NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained and other valuable consideration, the parties agree as follows:

1. DEFINITIONS. Terms not otherwise defined in this Agreement have the following meanings.some text
   1. “Client Data” means the data  provided to Disclo by Client or Authorized Users or collected by Disclo in the provision of the Disclo Services, including all documentation, data, and other non-public information relating to the Authorized Users, but excluding any Operational Metrics. 
   2. “Documentation” means any  information created or licensed by Disclo and provided to Client, online or otherwise, in the course of Client’s use of the Disclo Services under the terms of this Agreement, and as updated by Disclo from time to time in its sole discretion.
   3. “Intellectual Property Rights” shall mean all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.
   4. “Operational Metrics” means any anonymized information, metrics, analytics, and data that Disclo collects in connection with Client’s (including its Authorized Users’) use of, or interaction with, the Disclo Services.  
   5. “Support Services” means the standard support and maintenance services described in in Exhibit A.
2. SERVICE AND SUPPORT some text
   1. License.  Subject to the terms and conditions of this Agreement, Disclo grants to Client during the initial term specified in the applicable order form and any renewal term (collectively, the “Term”) a non-exclusive, non-transferable, non-assignable worldwide right to use the Disclo Services solely for Client’s own internal business purpose. Disclo reserves the right to make changes, modifications and enhancements to the Disclo Services from time to time, provided, however, that Disclo agrees that during the Term such changes, modifications and/or enhancements will not result in a material diminishment to the Disclo Services as it was provided as of the initial date of the Term. In addition, Disclo grants Client a non-exclusive, non-transferable, non-assignable worldwide right to use any and all Documentation that Client or its Authorized Users are provided under this Agreement for Client’s internal business use. All rights not expressly granted to Client are reserved by Disclo and its licensors. ‍
   2. Support and SLA. Subject to the terms and conditions of this Agreement and the applicable order form (and payment of all applicable fees), Disclo will provide Client reasonable technical support for the Disclo Services in accordance with Disclo’s SLA. ‍
3. RESTRICTIONS AND RESPONSIBILITIES‍
   1. ‍Restrictions. Client will only use the Disclo Services as expressly permitted herein and in the applicable order form, and agrees that it will not (and will not allow any of its employees, Authorized Users, or any third party to, directly or indirectly, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying structure, ideas, know-how or algorithms of the Disclo Services; (ii) modify, translate, or create derivative works based on any element of the Disclo Services (except to the extent expressly permitted by Disclo in writing or specifically authorized within the Disclo Services); (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Disclo Services; (iv) use the Disclo Services for timesharing or service bureau purposes or otherwise for the benefit of any third party;  (v) remove any proprietary notices or labels from the Disclo Services; (vi) use or access the Disclo Services to develop a product or service that is competitive with the Disclo Services or engage in competitive analysis or benchmarking; (vii) interfere with or disrupt the integrity or performance of the Disclo Services; or (viii) modify, adapt, hack, or attempt to gain unauthorized access to the Disclo Services or its related systems or networks. 
   2. ‍Responsibilities. Client is responsible for use of the Disclo Services by its Authorized Users. Client represents and warrants that Client and its Authorized Users will use the Disclo Services only in compliance with Disclo’s privacy policy, user terms, and standard published policies then in effect, if any, and all applicable laws and regulations. Client understands and agrees that it is solely responsible for conducting any interactive process with its employees. Client will obtain from Authorized Users any consents necessary to allow Authorized Users to use the Disclo Services and for Disclo to perform the Disclo Services, including any consents to provide or enable Disclo to collect Client Data, and to contact Client’s employees utilizing the Disclo Services, as well as any consents necessary to allow Client’s administrative Authorized Users to access, disclose, restrict, or remove Client Data in or from Disclo Services accounts and to monitor or restrict access to such accounts. Although Disclo has no obligation to monitor Client’s and its Authorized Users’ use of the Disclo Services, Disclo may do so and may suspend Client’s and any Authorized Users’ access to or use of the Disclo Services in its sole and reasonable discretion if it possesses a good faith belief that any such use may be in violation of this Agreement or otherwise places Disclo at risk of liability. ‍
   3. Client Administration of the Disclo Services. Disclo will issue to Client and/or authorize a Client administrative Authorized User to create and issue to each Authorized User a user login and password for access and use of the Disclo Services. Client will be responsible for ensuring and maintaining the security of Client’s and Authorized Users’ accounts, passwords and files, and will prevent unauthorized use of or access to the Disclo Services. Client shall restrict its Authorized Users from sharing passwords. Client will cooperate with Disclo in its provision of the Disclo Services, including providing Disclo with timely access to Client’s and its Authorized Users’ data and information, and Client will be solely responsible for the accuracy and completeness of all data and information provided to Disclo for the performance of the Disclo Services. Client will immediately notify Disclo of any breach, or attempted breach, of security known to Client.
   4. ‍No Legal Advice or Attorney-Client Relationship; Client Decisions. The Disclo Services may include general advice and recommendations, documents and policy samples to Client and Authorized Users. Client acknowledges and agrees, however, that Disclo is not providing legal or any other professional advice to Client or any Authorized Users and that Disclo is not in an attorney-client relationship with either Client or any Authorized Users. Client therefore acknowledges that the attorney-client privilege does not attach to any communications between Disclo and Client or any Authorized Users. Client understands and agrees that it is solely responsible for obtaining all necessary advice to ensure that Client is in compliance with all of its legal obligations in connection with employee disability accommodations. Disclo also will not make any decisions on Client’s behalf, and Disclo will be entitled to rely on all of Client’s decisions and approvals. ‍
4. FEES, PAYMENT AND TAXES
   1. Subscription Fees. Client shall pay to Disclo all applicable fees for the Disclo Services, as set forth in the applicable order form in accordance with the payment terms therein. Fees are non-cancelable and non-refundable. Disclo may revise its service fees (including any applicable discount) at the end of the initial term or then-current renewal term, upon forty-five (45) days’ prior notice to Client (which may be sent by email). If Client believes that Disclo has billed Client incorrectly, Client must contact Disclo no later than forty-five (45) days after the closing date on the first billing statement in which the alleged error appeared, in order to receive an adjustment or credit. ‍
   2. Taxes. Client is responsible for all taxes associated with the Disclo Services other than taxes based on Disclo’s net income. ‍
5. CONFIDENTIALITY AND PROPRIETARY RIGHTS; DATA SECURITY
   1. Confidential Information.  “Confidential Information” means any and all non-public technical and non-technical information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to this Agreement, that is marked confidential or proprietary, or that the Disclosing Party identifies as confidential or proprietary, or that a reasonable person would consider confidential or proprietary under the circumstances, including but not limited to: (i) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (ii) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information; and (iii) the terms of this Agreement and the order form(s) and DPA incorporated herein. Confidential Information of Disclo includes, without limitation, all software, documentation, and other non-public information relating to the Disclo Services or the features, functionality or performance thereof. Confidential Information of Client includes the Client Data. Confidential Information also includes all summaries and abstracts of Confidential Information.‍
   2. Non-Disclosure. Each party acknowledges that in the course of the performance of this Agreement, it may obtain the Confidential Information of the other party.  The Receiving Party shall, at all times, both during the Term and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it. The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under the terms of this Agreement. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any third person other than (i) employees, contractors or agents with a need to know who are bound by confidentiality obligations consistent with this Agreement or (ii) as required to provide employee-related information and paperwork solely in connection with performance of the Disclo Services.‍
   3. Exceptions to Confidential Information.  The definition of “Confidential Information” shall exclude, and the obligations set forth in this section shall not apply to, information which:  (i) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (ii) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (iii) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of this Agreement or any obligation of confidentiality by the Receiving Party. Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (iv) assert the confidential nature of the Confidential Information to the agency; (v) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (vi) cooperate fully with the Disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.‍
   4. Proprietary Rights. Client acknowledges that Disclo or its licensors owns and retains all right, title and interest in and to (i) the Disclo Services and all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed in connection with the Disclo Services, services or support, (iii) Documentation (excluding any Client Data contained therein), (iv) Operational Metrics; and (v) any intellectual property rights related to any of the foregoing. If Client provides any suggestions, comments or other feedback to Disclo with respect to the Disclo Services or any of Disclo’s other products or services, Disclo will have the full, free and unencumbered right to use and otherwise fully exploit the same in connection with the Disclo Services and its other products and services (“Feedback”). Feedback is provided “as is” without warranty of any kind and shall not include any Confidential Information of Client.‍
   5. Rights in Client Data. As between Disclo and Client, Client owns all rights in and to the Client Data. Client grants Disclo a right to use, collect, and process Client Data as necessary to perform the Disclo Services. ‍
   6. Data Security. Disclo will maintain industry standard administrative, physical and technical safeguards reasonably designed to protect the security of Client Data. These safeguards include measures designed to prevent unauthorized access, use, modification or disclosure of Client Data. Disclo will not materially diminish the protections provided in this section during this term of this Agreement. Disclo’s standard Data Processing Addendum is hereby incorporated into this Agreement.‍
   7. Operational Metrics. Client acknowledges that Disclo monitors and collects Operational Metrics for its own business purposes, such as improving, testing, and maintaining the Disclo Services and generation of reports for internal and external use. Operational Metrics may be derived in part from activities related to Disclo’s delivery of the Disclo Services to Client, but Operational Metrics will not contain any Client Data or any information that could be used to identify Client or any individual. Operational Metrics are owned by Disclo. ‍
   8. Other. Client agrees that Disclo may include Client’s name and logo in Disclo’s marketing materials and on Disclo’s website; however, Disclo will not use Client’s name or logo in any other publicity without Client’s prior written consent, which may be via email.‍
6. TERM AND TERMINATION
   1. Term.  Subject to earlier termination as provided below, this Agreement is for the initial term specified in the applicable order form, and will automatically renew for additional periods of the same duration as the initial term unless either party requests termination at least thirty (30) days prior to the end of the then-current term. ‍
   2. Termination.  In addition to any other remedies it may have, either party may terminate this Agreement (including all order forms) upon forty-five (45) day’s written notice to the other party in the event the other party (i) becomes insolvent or bankrupt; or (ii) commits a material breach of any provision of this Agreement and does not remedy such breach within the notice period. ‍
   3. Effects of Termination.  Upon termination of this Agreement, (i) Client’s right to use the Disclo Services will immediately cease and all outstanding fees due for the Disclo Services for the entire Term (regardless of any earlier termination) will immediately become due and payable. In addition, and except as necessary to comply with its legal obligations, each party will immediately cease use of, and, upon the other party’s written request, destroy all the other party’s Confidential Information and provide written confirmation of having done so. Any Confidential Information of the other party that a party needs to keep for so long as necessary to comply with this Agreement will remain subject to the terms of section 5 of this Agreement.  ‍
   4. Survival.  This section and Sections 1 (Definitions), 3 (Restrictions and Responsibilities), 4 (Fees, Payments, and Taxes), 5 (Confidentiality and Proprietary Rights; Data Security), 6.3 (Effects of Termination), 6.4 (Survival), 8 (Indemnification), 9 (Limitation of Liability), 11 (Disputes), and 12 (Miscellaneous) shall survive any termination or expiration of this Agreement.‍
7. WARRANTY AND DISCLAIMER 
   1. Warranty. Disclo warrants to Client that, during the Term, the Disclo Services shall, under normal use and service, substantially conform to, and perform in all material respects, the functions described in the applicable Documentation when used in accordance with such Documentation and this Agreement. If the Disclo Services fail to comply with the foregoing warranty, Client shall promptly provide written notice to Disclo and describe in sufficient  detail the nature of the alleged non-conformity.  In response, and as Client’s sole and exclusive remedy for any warranty breach, Disclo will use commercially reasonable efforts to correct any non-conformity. If Disclo  is unable to correct such non-conformity, Client may terminate this Agreement (including all order forms) with thirty (30) days’ written notice to Disclo, and Disclo will refund to Client on a pro-rata basis any fees paid to Disclo for the remaining portion of the Term. ‍
   2. Exclusions.  The warranty in this section does not cover any defects or non-conformities arising from (i) misuse of the Disclo Services or the Documentation, (ii) any modifications to the Disclo Services made by any person or entity other than Disclo that is not previously approved by Disclo, (iii) any use of the Disclo Services by Client or its Authorized Users beyond the scope of the express rights granted in this Agreement, (iv) any use of the Disclo Services in combination with other software, hardware or data not specified by Disclo or otherwise necessary to utilize the Disclo Services as intended, or (v) Disclo’s compliance with Client’s request for changes to the Disclo Services or with Client’s designs, specifications or instructions.‍
   3. Disclaimer.  THE WARRANTIES SET FORTH IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, AND, EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION, THE DISCLO SERVICES ARE PROVIDED ON AN AS-IS BASIS AND CLIENT’S USE OF THE DISCLO SERVICES IS OTHERWISE AT ITS OWN RISK.  DISCLO  DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
   4. NO AGENT OF EITHER PARTY IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF SUCH PARTY SET FORTH HEREIN.  DISCLO  DOES NOT WARRANT THAT THE DISCLO SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. CLIENT ACKNOWLEDGES AND AGREES THAT THE DISCLO SERVICES  (AS WITH TECHNOLOGY GENERALLY), MAY HAVE ERRORS OR “BUGS” AND MAY ENCOUNTER UNEXPECTED TECHNICAL PROBLEMS.  ACCORDINGLY, FROM TIME TO TIME, CLIENT MAY EXPERIENCE DOWNTIME AND ERRORS IN THE OPERATION, FUNCTIONALITY OR PERFORMANCE OF THE DISCLO SERVICES. EXCEPT WITH RESPECT TO THIRD PARTIES PROVIDING SERVICES ON DISCLO’S BEHALF (E.G., CLOUD HOSTING SERVICE PROVIDER) DISCLO IS NOT LIABLE FOR ANY ACT OR OMISSION OF THIRD PARTIES THAT RECEIVE ACCESS TO EMPLOYEE-RELATED INFORMATION OR PAPERWORK IN CONNECTION WITH THE SERVICE (E.G. EMPLOYEE’S DOCTOR, SHORT-TERM DISABILITY PROVIDER).‍
8. INDEMNIFICATION
   1. Disclo’s Indemnity.  Disclo shall, subject to the terms and conditions set forth in this Agreement, indemnify, hold harmless, and defend Client from and against all liabilities, damages, and costs (including, without limitation, reasonable attorneys’ fees and settlement costs) arising out of any claim by a third party against Client resulting from infringement by the Disclo Services (excluding any claim based on Client Data) of any U.S. patent, trademark or copyright or misappropriation of any trade secret. The foregoing obligations do not apply with respect to the Disclo Services or portions thereof (i) not supplied by Disclo; (ii) made in whole or in part in accordance with Client specifications; (iii) that are modified after delivery by Disclo; (iv) combined with other products, processes or materials where the alleged infringement relates to such combination; (v) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Client’s or its Authorized Users’ use of the Disclo Services is not strictly in accordance with this Agreement.   ‍
   2. Client Indemnity.  Client shall, subject to the terms and conditions set forth in this Agreement, indemnify, hold harmless, and defend Disclo and its licensors, successors and assigns (and its and their officers, representatives, directors, employees, contractors, customers, and agents) from and against all liabilities, damages, and costs (including, without limitation, reasonable attorneys’ fees and settlement costs) arising out of a claim by a third party related to (i) Client’s or Authorized Users’ use of the Disclo Services (except to the extent covered by Disclo’s indemnity obligations above), or (ii) Client Data (including any obligations related to Client Data set forth in this Agreement). ‍
   3. Process. The party seeking indemnification under this section will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have sole control over the defense, except that (i) any settlement requiring the party seeking indemnity to admit liability requires prior written consent, not to be unreasonably withheld or delayed; and (ii) the other party may join in the defense with its own counsel at its own expense. ‍
9. LIMITATION OF LIABILITY‍
   1. Client  agrees that (A) Disclo is not an insurance company; (B) Disclo’s fees for the Disclo Services would be substantially higher if Disclo were to agree to undertake additional obligations and liabilities beyond what Disclo has expressly undertaken in this Agreement; and (C) Client should look solely to its insurance or self-insurance programs to the extent that any losses, costs, judgments, or expenses are not covered by Disclo’s express obligations and liabilities contained in this Agreement. Notwithstanding the foregoing, Disclo will maintain adequate insurance with respect to its potential liability for loss or damage under this Agreement, and will provide a certificate of insurance to Client upon request (limited to one time per year).‍
   2. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR DISCLO’S OR CLIENT’S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY OR ITS OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES, WILL BE LIABLE UNDER THIS AGREEMENT WHETHER UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY: (i) FOR LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFIT (IN EACH CASE WHETHER DIRECT OR INDIRECT) OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; OR (ii) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, IN EACH CASE, WHETHER OR NOT A PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR DISCLO’S OR CLIENT’S INDEMNIFICATION OBLIGATIONS, NEITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL EXCEED THE FEES PAID OR PAYABLE TO DISCLO HEREUNDER IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING, NEITHER PARTY’S MAXIMUM AGGREGATE LIABILITY FOR ITS INDEMNITY OBLIGATIONS WILL EXCEED 4 TIMES THE FEES PAID OR PAYABLE TO DISCLO HEREUNDER IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. IF THE FOREGOING LIMITATION OF LIABILITY IS DEEMED INEFFECTIVE AS A MATTER OF LAW, IT SHOULD INSTEAD BE CONSTRUED TO LIMIT THE LIABILITY TO THE MINIMUM AMOUNT THAT WOULD BE CONSISTENT WITH SUCH LAWS OR PRECEDENT WHILE STILL GIVING EFFECT TO THE INTENTION OF THIS CLAUSE.
10. EXPORT CONTROLS‍
    1. Client may not remove or export from the United States or allow the export or re-export of the Disclo Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the U.S. Department of Commerce, the U.S. Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing, (i) Client represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, (ii) Client will not permit access or use of the Disclo Service in violation of any U.S. export embargo, prohibition or restriction, and (iii) Client will comply with all applicable laws regarding the transmission of technical data exported from the United States. As defined in FAR section 2.101, the Disclo Services and Documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.‍
11. ‍DISPUTES‍
    1. Client and Disclo agree to resolve any claims relating to this Agreement or the Disclo Services through final and binding arbitration, except as set forth below. The National Arbitration and Mediation (NAM) will administer the arbitration. NAM will administer the arbitration in accordance with the NAM Comprehensive Dispute Resolution Rules and Procedures in effect at the time any demand for arbitration is filed with NAM, excluding any rules or procedures governing or permitting class or representative actions. The arbitration will be held in Dover, Delaware, or any other location the parties agree to in writing. The arbitrator will have the right to order limited discovery. The arbitration fees will be borne by the losing party, except as otherwise awarded by the arbitrator in accordance with the Commercial Arbitration Rules. Either party may bring a lawsuit in the federal or state courts of Kent County, Delaware solely to seek temporary or preliminary injunctive relief to stop unauthorized use or abuse of the Disclo Services or infringement of intellectual property rights. Each party hereby consents and irrevocably submits to the exclusive jurisdiction and exclusive venue of such courts.‍
12. MISCELLANEOUS
    1. Notices.  All notices under this Agreement must be sent via email, next day delivery via recognized overnight delivery service, or certified or registered mail, return receipt requested, and are deemed given when received. Notices to Client may be sent to the applicable account email address and are deemed given when sent. Notices to Disclo must be sent to hannah@disclo.com.‍
    2. Amendment; Waiver; Document Precedence.  This Agreement may only be amended or supplemented by a writing that is signed by each party’s CEO. No consent by either party to, or waiver of, a breach by either party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party. In the event of a conflict, the documents will control in the following order of precedence: the order form, the Data Processing Addendum, this Agreement. Any different or additional terms of any purchase order, confirmation, or similar pre-printed form will have no force or effect.
    3. ‍Severability.  If any provision of this Agreement is held invalid or unenforceable for any reason, the remainder of the provision shall be amended to achieve, as closely as possible, the economic effect of the original term and all other provisions shall continue in full force and effect.
    4. ‍Governing Law. This Agreement and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the State of Delaware as applied to agreements entered into and to be performed in such state without giving effect to conflicts of laws rules or principles. For any disputes arising out of this Agreement, subject to section 11 of this Agreement (Disputes) the parties consent to exclusive jurisdiction and venue in the state and federal courts located in Kent County, Delaware.‍
    5. Force Majeure. Except for payment obligations, neither party will be liable for inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance).‍
    6. Assignment.  Neither party may assign its rights or obligations under this Agreement, whether voluntarily or by operation of law or otherwise, without the other party’s prior written consent; provided that either party may assign this Agreement in connection with an acquisition, sale or transfer of all or substantially all of its assets, stock or business by sale, merger, consolidation, or similar transaction.‍
    7. Relationship of the Parties.  Disclo is an independent contractor to Client. There is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf. There are no third-party beneficiaries to this Agreement. Without limiting this section, Client’s Authorized Users are not third-party beneficiaries to Client’s rights under this Agreement.‍
    8. Counterparts; Electronic Signatures.  This Agreement may be executed in two counterparts, each of which shall be deemed an original, but both of which together shall constitute one and the same instrument. If this Agreement is executed in counterparts, no signatory hereto shall be bound until both the parties named below have duly executed or caused to be duly executed a counterpart of this Agreement.  Signatures of the parties made or exchange by electronic means shall be binding.‍
    9. Entire Agreement.  This Agreement, including the Data Processing Addendum and any executed order forms, constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral, concerning such subject matter.

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EXHIBIT A

TECHNICAL SUPPORT SERVICES

Disclo shall designate one of its employees (the “Designated Account Executive”) to serve as Disclo’s principal point of contact to address Client’s technical support matters, including any technical problems with the Disclo Services.

Client shall designate one of its employees (the “Designated Employee”) to serve as Client’s principal point of contact responsible for reporting to the Designated Account Executive any technical problems with the Disclo Services. Clients may also report any technical problems via support@disclo.com

Disclo’s support team’s standard hours of operation are Monday to Friday 9 a.m. to 6 p.m. EST (“Service Hours”), excluding federal holidays.

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Problem Classifications and Definitions. A “Problem” is a defect in the accessibility or performance of a function or component of the Disclo Services which had previously performed as expected.  

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Problem priority will be reasonably determined by Disclo using the following as a guideline:

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Priority Level: 1

Problem Description: Severe Impact – Disclo Services not operational 

Response Time – Up to: 1 Business Day

Priority Level: 2

Problem Description: Degraded Operations - Problems  that result in a lack of significant Disclo Services' functionality

Response Time – Up to: 2 Business Days

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Priority Level: 3

Problem Description: Low Impact – problems that cause non-critical Disclo Services features consistently to malfunction, problems  that cause attributes and/or options of utility programs not to operate in accordance with specifications.

Response Time – Up to: 5 Business Days

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Response Time means the time between the receipt of the Client's report of a problem, until the assignment of Disclo’s  technical person to try resolving the problem. Once a technical person has been assigned to a problem, Disclo  will make commercially reasonable efforts  to resolve the problem and keep Client informed of such progress. 

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Note that Problems do not include any downtime of the Disclo Services resulting from: 

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• Network Modifications: Specifically, any issues caused by network modification(s) by Client;

• Upgrades: Clients will receive prior notice by email of Disclo’s upgrade windows, which will be scheduled between 5pm and midnight Pacific Time to the extent feasible. Downtime due to upgrades will not exceed 2 hours per month;

• Pre-scheduled maintenance periods: Clients will receive at least 24 hours’ prior notification by email of pre-scheduled maintenance periods. Maintenance shall be scheduled between 5pm and midnight Pacific Time. Downtime due to pre-scheduled maintenance will not exceed 2 hours per month;

• Emergency maintenance periods: Clients will receive prior notification by email on a commercially reasonable basis. These maintenance periods will involve applying critical security patches and other emergency repairs to the Disclo Services and infrastructure;

• Other:
  • Account suspension or termination due to Client’s breach of the agreement that governs the Client’s use of the Disclo Services;‍
  • ‍Disengagement of functionality of Disclo Services due to Client’s request;‍
  • ‍Force Majeure events (as that term is defined in the Agreement); or‍
  • ‍Client’s or its service provider’s failure of equipment, software or other technology.

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