Customer Terms of Service

These Customer Terms of Service (the “Customer Terms”) describe your rights and responsibilities when using our remote access and low-attributional tools and platform (the “Services”). Please read them carefully. If you are a Customer (defined below), these Customer Terms govern your access and use of our Services. If you are being invited to an Organization set up by a Customer, the User Terms of Service (the “User Terms”) govern your access and use of the Services. Thanks for coming, and read on.

Definitions

For purposes of this Agreement, the following terms shall have the following meanings:

“Authorized Users”

means those persons for whom Customer has requested access credentials to a Project by providing Dispel with an email address, telephone number, or other relevant information for such person.

"Derivative Work”

shall mean a new or modified work that is based on or derived from a preexisting work, including, without limitation, a work that, in the absence of a license, would infringe the copyright in such preexisting work, or that uses trade secrets or other proprietary information with respect to such preexisting work.

“Documentation”

means any operating instructions, user manuals, help files and other technical information, documentation and materials, in tangible or electronic form, related to the Dispel Services.

"Enclave"

is a a group of virtual machines (VMs) leased from public or private cloud providers and networked together over a software defined network.

“Open Source Software”

means all software, documentation and other material that is distributed as “free software,” “open source software” or under a similar licensing or distribution model, including, but not limited to, the GNU General Public License (GPL), GNU Affero General Public License (AGPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Berkeley Software Distribution (BSD) license, MIT License, Apache License or any other license described by the Open Source Initiative as set forth on www.opensource.org.

"Organization"

means a Customer's Enclaves and user accounts with Dispel.

"Proprietary Information"

includes, without limitation, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, formulas, schematics, testing procedures, software design and architecture, computer code, documentation, design and functional specifications, product requirements, problem reports, performance information, software documents, and other technical, business, product, marketing, and financial information, plans, and data.

“Dispel Services”

means the software (including but not limited to object code, executable files or browser plug-ins) made available to you under this Agreement (whether in downloadable form, accessed online, as Software-as-a-Service (SaaS) or as Privacy-as-a-Service (PraaS)), all materials related thereto, including Documentation, and all Updates thereto.

“Updates”

means any patches, revised versions, modifications, upgrades, bug fixes, new releases, enhanced functionality and other updates to the Dispel Services.

Ground Rules

These “Customer Terms” Form a Part of a Binding “Contract”

These Customer Terms (or, if applicable, your written agreement with us) and any Order Form(s) (defined below) together form a binding “Contract” (aka: "Agreement") between Customer and us. If any terms in the Customer-Specific Supplement apply to Customer (e.g., if Customer is a U.S. government entity), those terms are also incorporated herein by reference and form part of the Contract. Dispel's Privacy and Support Policies also made part of this Contract. “We,” “our,” “us,” and "Dispel" refers Dispel LLC.

Your Agreement On Behalf of “Customer”

If you purchase subscription(s), create an Enclave (i.e., a digital space where a group of users may access the Services) or an Organization (i.e., the parent group of all your enclaves), invite users to that Organization or Enclave, ask Dispel to create an Organization or Enclaves for you, ask Dispel to invite users to your Organization or Enclaves for you, or use or allow use of that Organization or Enclave after being notified of a change to these Customer Terms, you acknowledge your understanding of the then-current Contract and agree to the Contract on behalf of Customer. Please make sure you have the necessary authority to enter into the Contract on behalf of Customer before proceeding.

Customer Choices and Instructions

Who is a "Customer"? (Hint: There can only be one)

Customer” is the entity that you represent in agreeing to the Contract. If your Organization/Enclave is being set up by someone who is not formally affiliated with an entity, Customer is the individual creating the organization/enclave. For example, if you signed up using a personal email address and invited a couple of colleagues to protect a test environment but haven't bought as a company yet, you are the Customer.

Signing Up Using a Corporate Email Domain

If you signed up for a plan using your corporate email domain, your corporate entity is Customer, and Customer can modify and re-assign roles on your Organization and Enclaves (including your role) and otherwise exercise its rights under the Contract. If Customer elects to replace you as the representative with ultimate authority for the Organization, we will provide you with notice following such election and you agree to take any actions reasonably requested by us or Customer to facilitate the transfer of authority to a new representative of Customer.

What This Means for Customer—and for Us

Individuals authorized by Customer to access the Services (an “Authorized User”) may access Organization, Enclaves, and the infrastructure connected to them, and submit content or information to the Services, such as messages or files (“Customer Data”). The Customer may exclusively provide us with instructions on what to do with Customer Data. For example, Customer may provision or deprovision access to the Services, enable or disable third party integrations, manage permissions, retention and export settings, transfer or assign Enclaves, or share data in Enclaves. These choices and instructions by the Customer may result in the access, use, disclosure, modification or deletion of certain or all Customer Data.

Customer will (a) inform Authorized Users of all Customer policies and practices that are relevant to their use of the Services and of any settings that may impact the processing of Customer Data; and (b) ensure the transfer and processing of Customer Data under the Contract is lawful.

Authorizing Users

An authorization allows an Authorized User to access the Services. An authorization happens when you invite a user to join an Organization or Enclave. No matter the role, an authorization is required for each Authorized User. An authorization may be granted through the Services interface, or in some cases, via an order form entered into between Customer and us including setup requests made by you (each, an “Order Form”). Please see the Help Center for more information on authorizing new Authorized Users. Each Authorized User must agree to the User Terms to activate their account. Authorizations commence when we make them available to Customer and continue until you terminate their access. Each authorization is for a single Authorized User for a specified term and is personal to that Authorized User. We sometimes enter into other kinds of authorization arrangements, but that would need to be spelled out and agreed to in an Order Form.

Non-Dispel Products

Our Services include a platform that third parties may use to develop applications and software that complement Customer’s use of the Services (each, a “Non-Dispel Product”). We also maintain a directory called the Dispel Build Resource interface where some Non-Dispel Products are available for installation. THESE ARE NOT OUR SERVICES, SO WE DO NOT WARRANT OR SUPPORT NON-DISPEL PRODUCTS, AND, ULTIMATELY, CUSTOMER (AND NOT US) WILL DECIDE WHETHER OR NOT TO ENABLE THEM. ANY USE OF A NON-DISPEL PRODUCT IS SOLELY BETWEEN CUSTOMER AND THE APPLICABLE THIRD PARTY PROVIDER.

If a Non-Dispel Product is enabled for a Customer Enclave, please be mindful of any Customer Data that will be shared with the third party provider and the purposes for which the provider requires access. We will not be responsible for any use, disclosure, modification or deletion of Customer Data that is transmitted to, or accessed by, a Non-Dispel Product.

Feedback

The more suggestions our customers make, the better the Services become. If Customer sends us any feedback or suggestions regarding the Services, there is a chance we will use it, so Customer grants us (for itself and all of its Authorized Users and other Customer personnel) an unlimited, irrevocable, perpetual, sub-licensable, transferable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer, any Authorized User or other Customer personnel. If we choose not to implement the suggestion, please don’t take it personally. We appreciate it nonetheless.

Purchasing Decisions

We may share information about our future product plans because we like transparency. Our public statements about those product plans are an expression of intent, but do not rely on them when making a purchase. If Customer decides to buy our Services, that decision should be based on the functionality or features we have made available today and not on the delivery of any future functionality or features.

Privacy Policy

Please review our Privacy Policy for more information on how we collect and use data relating to the use and performance of our websites and products.

Our Responsibilities

Providing the Services

The Customer isn’t the only one with responsibilities; we have some, too. We will (a) make the Services available to Customer and its Authorized Users as described in the Contract; and (b) not use or process Customer Data for any purpose without Customer’s prior written instructions; provided, however, that “prior written instructions” will be deemed to include use of the Services by Authorized Users and any processing related to such use or otherwise necessary for the performance of the Contract.

Be assured that (a) the Services will perform materially in accordance with our then-current Help Center pages; and (b) subject to the “Non-Dispel Products” and “Downgrade for Non-Payment” sections, we will not materially decrease the functionality of a Service during an Order Form term. Outages and issues are governed by the Support Policy. For any breach of a warranty in this section, Customer’s exclusive remedies are those described in the sections titled “Termination for Cause” and “Effect of Termination”.

Upon execution of this Agreement, and within a commercially reasonable time following Customer’s request, Dispel shall create the Projects and provide Customer and the Authorized Users with access credentials to the Services as agreed to by the Parties, or alternatively, if requested by Customer, Dispel shall provide Customer and the Authorized Users with access credentials to the Services so that Customer may create its own Organizations and Enclaves. Dispel shall adhere to all material government laws, rules, and regulations applicable to the provision of the Services. Customer may purchase at any time additional Services through Dispel’s website or other means as provided by Dispel and which shall be governed by this Agreement. Dispel shall have the right, in its sole and reasonable discretion, to assign, delegate, or subcontract the Services, in whole or in part, to its affiliates or such other third parties as Dispel deems appropriate for the provision of such Services pursuant to this Agreement.

Protecting Customer Data

The protection of Customer Data is a top priority for us so we will maintain administrative, physical, and technical safeguards--including measures for preventing unauthorized access, use, modification, deletion and disclosure of Customer Data by our personnel. Before sharing Customer Data with any of our third party service providers, we will ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of Customer Data and preventing unauthorized access. Customer (not us) bears sole responsibility for adequate security, protection and backup of Customer Data when in Customer’s or its representatives’ or agents’ possession or control. We are not responsible for what Customer’s Authorized Users or Non-Dispel Products do with Customer Data. That is Customer’s responsibility.

Data Portability and Deletion

During the term of a Enclave, Customer will be permitted to export or share certain Customer Data from the Services; provided, however, that because we have different products with varying features and Customer has different retention options, Customer acknowledges and agrees that the ability to export or share Customer Data may be limited or unavailable depending on the type of Services plan in effect and the data retention, sharing or invite settings enabled. Following termination or expiration of a Enclave term, we will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in our systems or otherwise in our possession or under our control. When components within an Enclave cycle, which they do by design as a normal function of the service, all data or other information will be deleted forever and unrecoverable. It shall be solely Customer’s responsibility to backup or copy any data or information associated with a Project prior to termination of the Services. DISPEL DISCLAIMS ANY AND HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA, WHETHER SUCH DATA HAS BEEN BACKED UP BY CUSTOMER OR NOT.

The Dispel Extended Family

We may leverage our employees, those of our corporate affiliates and third party contractors (the “Dispel Extended Family”) in exercising our rights and performing our obligations under the Contract. We will be responsible for the Dispel Extended Family’s compliance with our obligations under the Contract.

Support

During the Subscription Term of each Service, Dispel will provide end user support in accordance with Dispel's Support Policy ("Support Policy").

Proprietary Rights & Information

Proprietary Rights

Your Property Belongs to You...

As between Dispel on the one hand, and Customer any any Authorized Users on the other, Customer will own all Customer Data. Subject to the terms and conditions of the Contract, Customer (for itself and all of its Authorized Users) grants us a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Customer Data, and any Non-Dispel Products created by or for Customer, only as reasonably necessary (a) to provide, maintain and update the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law or as permitted by policy; and (d) as expressly permitted in writing by Customer. Customer represents and warrants that it has secured all rights in and to Customer Data from its Authorized Users as may be necessary to grant this license.

And Our Property Belongs to Us

We retain all right, title and interest, including, without limitation, all patent rights, copyrights, trademarks, trade secrets and all “moral rights” and other rights with respect to the attribution of authorship or integrity thereof, that you may have under any applicable law or any applicable legal theory in and to the Dispel Services and Proprietary Information and any portion thereof, including, without limitation, any copy or Derivative Work of the Dispel Services.

We grant you and your Authorized Users a non-exclusive, non-transferable, non-sublicensable right and license to use the Dispel Services (excluding Open Source Software), but solely as necessary to use the Services and in accordance with the Contract and the User Terms. All of our rights not expressly granted by this license are hereby retained.

Use and Disclosure Restrictions

Dispel Services constitute and contain valuable Proprietary Information and trade secrets of Dispel, and embody substantial creative efforts and confidential information, ideas and expressions. You agree (a) to protect Dispel’s Proprietary Information from unauthorized dissemination and use; (b) to use Dispel’s Proprietary Information only for the performance of your obligations and in connection with the exercise of your rights hereunder; (c) without Dispel’s prior written consent, not to disclose or otherwise provide to any third party or any person other than your employees who are aware of the confidentiality obligations imposed by this Section and have entered into written confidentiality agreements with you which require such individuals to comply with confidentiality obligations no less restrictive than the requirements of this Section, any Proprietary Information, including any part or parts thereof; (d) to undertake whatever action is necessary (or authorize Dispel to do so in your name) to prevent or remedy any breach of your confidentiality obligations herein set forth or any other unauthorized use or disclosure of any Proprietary Information by your current or former employees, agents or contractors; and (e) not to remove or destroy any proprietary or confidential legends or markings placed upon or contained within the Dispel Services or any other Proprietary Information provided to you by Dispel.

Exclusions

The foregoing restrictions on disclosure and use of Proprietary Information shall not apply with respect to any non-personally-identifiable Proprietary Information that: (a) becomes publicly known through no fault of yours; (b) was known by you before receipt from Dispel, as evidenced by your contemporaneous written records; (c) becomes known to you without confidential or proprietary restriction from a source other than Dispel who does not owe a duty of confidentiality with respect to such Proprietary Information; or (d) is independently developed by you without the use of, reference to or reliance upon the Proprietary Information, as evidenced by your contemporaneous written records. In addition, you may use or disclose Proprietary Information to the extent (i) approved in writing by Dispel or (ii) you are legally compelled to disclose such Proprietary Information, provided, however, that prior to any such compelled disclosure, you shall cooperate fully with Dispel in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Proprietary Information.

Equitable Relief

You acknowledge and agree that, due to the unique nature of Dispel’s Proprietary Information, there can be no adequate remedy at law to compensate Dispel for the breach of any provision of this Section 5, that any such breach shall allow you or third parties to compete unfairly with Dispel resulting in irreparable harm to Dispel that would be difficult to measure, and, therefore, that upon any such breach or threat thereof, Dispel shall be entitled to injunctive and other appropriate equitable relief (without the necessity of proving actual damages), in addition to whatever remedies it may have at law, without the necessity of posting any bond or other security.

Purchases; Payments

Payment

Dispel will invoice Customer the fees in U.S. dollars specified by Dispel on the Customer's Order Form(s).

If the Customer has a payment method on file with Dispel, Dispel may use that payment method to automatically bill the Customer which Customer consents to, including but not limited to, if the Customer has a credit card on file with Dispel. If Customer does not want particular Services to continue running into the next applicable pay period, Customer must notify Dispel as soon as reasonably practicable by sending an email to support@dispel.io or by terminating Services through the Dispel website. Customer may add Services at any time. Services added during an applicable pay period will be invoiced pro-rata and in arrears as part of the subsequent pay period’s invoice. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on our net income. Should any payment for the Services be subject to withholding tax by any government, Customer will reimburse us for such withholding tax.

Late Fees

Payment is due 30 days from the invoice date, unless otherwise specified on an Order Form. Any payment due or portion thereof not received by Dispel as set forth in this Purchases; Payments Section will bear an additional charge of one and one-half percent (1½%) per month from the date due until actually received, less the sum, if any, in excess of applicable state law.

Refund Policy; Suspension Due to Late Payment(s)

Payment obligations are non-cancelable and, except as expressly stated in the Contract, fees paid are non-refundable. Provided that Dispel provides Customer written notice of failure to pay any invoice, for which no good faith dispute exists, when due and thirty (30) days from Customer’s receipt of such notice to cure such non-payment(s), Dispel may, in its sole discretion, partially or fully suspend Customer’s access to and use of the Services.

Termination

Term

The Contract remains effective until all subscriptions ordered under the Contract have expired or been terminated or the Contract itself terminates. Termination of the Contract will terminate all subscriptions and all Order Forms.

Auto-Renewal

Unless an Order Form says something different, (a) all Enclaves and their constituent components automatically renew (without the need to execute a renewal Order Form) for additional periods equal to one (1) year or the preceding term, whichever is shorter; and (b) the per-unit pricing during any automatic renewal term will remain the same as it was during the immediately prior term. Either party can give the other notice of non-renewal at least thirty (30) days before the end of a contract term to stop the Enclaves from automatically renewing.

Termination

Termination with Cause

We or Customer may terminate this Agreement (a) if either party fails to cure any material breach of this Contract within thirty (30) days of receipt of written notice thereof. Customer is responsible for its Authorized Users, including for any breaches of this Contract caused by its Authorized Users. We may terminate the Contract immediately on notice to Customer if we reasonably believe that the Services are being used by Customer or its Authorized Users in violation of applicable law. (b) Upon thirty (30) days’ written notice if either party becomes insolvent, becomes subject to a petition in bankruptcy that is not dismissed within thirty (30) days, either party is placed under the control of a receiver, liquidator, or committee of creditors, or ceases to function as a going concern or to conduct business in the normal course. Or, (c) fail to pay under the Refund Policy; Suspension Due to Late Payment(s).

Effect of Termination

Upon any termination for cause by Customer, we will refund Customer any prepaid fees covering the remainder of the term of all Services after the effective date of termination. Upon any termination for cause by us, Customer will pay any unpaid fees covering the remainder of the term of those Services after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination.

Representations; Disclaimer of Warranties

Customer represents and warrants that it has validly entered into the Contract and has the legal power to do so. Customer further represents and warrants that it is responsible for the conduct of its Authorized Users and their compliance with the terms of this Contract and the User Terms.

THE SERVICES ARE PROVIDED “AS IS” AND, EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, DISPEL DISCLAIMS ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR CONDITIONS OF DESIGN, MERCHANTABILITY, SATISFACTORY QUALITY FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS, OR WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, DISPEL MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR DISPEL WEBSITE WILL MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY PARTICULAR SOFTWARE, HARDWARE, SYSTEM OR SERVICES (EXCEPT AS SET FORTH IN ANY SPECIFICATIONS WHERE DISPEL REPRESENTS WHAT THE SERVICES WILL DO), OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

Limitation of Liability

TO THE EXTENT ALLOWED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY:

(A) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT WILL EITHER CUSTOMER’S OR THE DISPEL EXTENDED FAMILY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACT OR THE USER TERMS (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING TO THE DATE THE CLAIM AROSE. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT” SECTION ABOVE; AND,

(B) IN NO EVENT WILL EITHER CUSTOMER OR ANY MEMBER OF THE DISPEL EXTENDED FAMILY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOSS OF PROFITS, REVENUES, BUSINESS, USE, DATA, OR INTERRUPTION OF BUSINESS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

The Services support logins using two-factor authentication (“2FA”), which is known to reduce the risk of unauthorized use of or access to the Services. We therefore will not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else if any event leading to such damages, losses or liability would have been prevented by the use of 2FA. Additionally, Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of your Authorized Users. We will not be responsible for any damages, losses or liability to Customer, Authorized Users, or anyone else, if such information is not kept confidential by Customer or its Authorized Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services.

To use the Services, Customer and the Authorized Users will generate access credentials and, if applicable, Dispel will provide certain hardware and access credentials. Customer and the Authorized Users are solely responsible for guarding the security of the access credentials and/or hardware provided by Dispel, as such access credentials and/or hardware will enable access to each Organization and Enclaves until such access credentials and/or hardware are deactivated by either Customer or by Dispel (upon Customer’s request to Dispel). Customer must promptly notify Dispel of any confidentiality breach or unauthorized use of Customer’s access credentials or if Dispel-provided hardware is hacked, misplaced or misappropriated. Customer is solely responsible for all use or misuse that occurs within an Enclaves and any claims arising therefrom, including by any Authorized User. Under no circumstances will Dispel be held responsible or liable for any such use, misuse, or claims including, but not limited to, any data breaches.

The limitations under this “Limitation of Liability” section apply with respect to all legal theories, whether in contract, tort or otherwise, and to the extent permitted by law. The provisions of this “Limitation of Liability” section allocate the risks under this Contract between the parties, and the parties have relied on these limitations in determining whether to enter into this Contract and the pricing for the Services.

Indemnifications

Our Indemnification of Customer

Dispel agrees to indemnify, defend, and hold harmless Customer and its affiliates, and its and their members, employees, licensors, and suppliers (collectively called the “Customer Parties”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, (including attorneys’ fees) arising out of or relating to (a) any violation, breach, or alleged violation or breach by Dispel of its express representations and warranties under this Agreement; or (b) any violation, or alleged violation, by Dispel of the rights of another, including without limitation any intellectual property, publicity, confidentiality, privacy, or propriety right in connection with Customer’s authorized use of the Services in accordance with the terms of this Agreement. For third party claims under the foregoing subsection (b), Dispel shall have the right to control the defense of any such claims including selecting its own counsel, and shall have the option to settle such claims without Customer’s consent, including obtaining any necessary licenses for Customer’s continued use or providing Customer with a non-infringing alternative(s).

Customer's Indemnification of Us

Customer agrees to indemnify, defend, and hold harmless Dispel and its affiliates, and its and their members, employees, licensors, and suppliers (collectively called the “Dispel Parties”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, (including attorneys’ fees) arising out of or relating to (a) Customer’s or any Authorized User’s use of, or activities in connection with, the Services (including for the avoidance of doubt, any omissions in, negligent or culpable use or misuse of the Services by Customer or an Authorized User); (b) any products, applications, services, photographs, graphics, images, videos, audio, text, data, content, and other materials that Customer or an Authorized User posts, uploads, uses, receives, sends, distributes, stores, or otherwise transmits through or using the Services; (c) any violation, breach, or alleged violation or breach by Customer or an Authorized User of this Agreement; (d) any violation, or alleged violation, by Customer or an Authorized User of the rights of another, including without limitation any intellectual property, publicity, confidentiality, privacy, or propriety right; or (e) any violation or alleged violation by Customer or an Authorized User of any applicable law or regulation, whether in the United States or anywhere else in the world. For third party claims, Dispel shall have the right to control its defense and select its own legal counsel to represent its interest and that of the Dispel Parties and Customer shall reimburse Dispel for such legal costs and attorneys’ fees promptly upon Dispel’s request for reimbursement.

Confidentiality

Confidential Information

Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with the Contract, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including all Order Forms, as well as non-public business, product, technology and marketing information. Confidential Information of Customer includes Customer Data. If something is labeled “Confidential,” that’s a clear indicator to the Receiving Party that the material is confidential. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.

Protection and Use of Confidential Information

The Receiving Party will (a) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with the Contract; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Contract. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisers; provided, however, that the advisers are bound to confidentiality obligations at least as restrictive as those in the Contract.

Compelled Access or Disclosure

The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the access or disclosure. If the Receiving Party is compelled by law to access or disclose the Disclosing Party’s Confidential Information, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing access to such Confidential Information as well as the reasonable cost for any support provided in connection with the Disclosing Party seeking a protective order or confidential treatment for the Confidential Information to be produced.

Open Source Software

Dispel is made possible through the work of other open source software. This open source software is subject to the terms and conditions of their respective open source license agreements (“Open Source Licenses”), and no rights with respect to such open source software are granted under this Contract. Please request the list of open source software from your account manager. This list of Open Source Licenses may be updated by Dispel from time to time. Customer acknowledges and agrees to the terms and conditions in each such open source software and that Customer is solely responsible for complying with such terms and conditions. Notwithstanding anything to the contrary in this Agreement, with respect to each item of open source software, to the extent there are any irreconcilable conflicts between this Agreement and any terms of the respective open source software, which the open source software does not permit, such conflicting terms of this Agreement will not apply. Any fees charged by Dispel in connection with the Services do not apply to any open source software for which fees may not be charged under the applicable open source software. Where the terms of any specific open source software entitle Customer to the source code of the respective open source software, upon Customer’s request, Dispel may either direct Customer to where Customer can obtain that source code, or make that source code available to Customer (a nominal fee may be charged by Dispel for processing such request).

Survival

The sections titled “Feedback,” “Non-Dispel Products,” “A Condition of Use,” “Payment Terms,” “The Dispel Extended Family,” “Your Property Belongs to You...,” “And Our Property Belongs to Us,” “Effect of Termination,” “Representations; Disclaimer of Warranties,” “Limitation of Liability,” “Our Indemnification of Customer,” “Customer’s Indemnification of Us,” “Proprietary Rights & Information,” "Confidentiality," and “Survival,” as well as all of the provisions under the general heading “General Provisions,” will survive any termination or expiration of the Contract.

General Provisions

Assignment

Except as provided in this section, Customer may not assign or otherwise transfer this Agreement or any of Customer’s rights hereunder or delegate any of Customer’s duties hereunder, in whole or in part, to any party or person without Dispel’s prior written consent, which will not be unreasonably withheld, delayed, or conditioned. Any purported assignment, transfer, or delegation in violation of this paragraph shall be void and of no effect, and a material breach of this Agreement. Notwithstanding the foregoing, Customer may, without Dispel’s prior written consent, assign its rights and obligations under this Agreement only in the event of a change of control of Customer or in the event of the sale of substantially all of Customer’s assets or business to a successor, provided that Customer’s assignment is not in violation of any export or import laws, or made to a successor owned or controlled by any entity, including government entity, that is or may be deemed a threat to U.S. national security. In such case, the successor to Customer’s assets or business shall be deemed to have assumed all rights and obligations under this Agreement. Dispel may assign its rights and obligations under this Agreement at any time, including in the event of a change of control of Dispel or in the event of the sale of substantially all of Dispel’s assets or business to a successor.

You agree to comply with all applicable laws. Without limiting the foregoing, you agree to comply with all U.S. export laws and applicable import laws of your locality (if you are not located in the United States), and you agree not to export any Dispel Services without first obtaining all required authorizations or licenses. Customer acknowledges and agrees that Dispel may be subject to reporting and disclosure requirements with respect to the Services (including, but not limited to, any equipment and/or hardware sold to Customer) under applicable U.S. laws and regulations including, but not limited to, 15 C.F.R. Part 740 and 742. Customer agrees to fully cooperate with Dispel in providing any reasonable information requested by Dispel to fulfill Dispel’s reporting and disclosure requirements under the applicable U.S. laws and regulations. Reporting and disclosure requirements may vary depending on the scope and specification of the Services ordered and Customer should refer to the U.S. Departments of Commerce, Defense, and State websites to provide the most current laws and regulations concerning such reporting and disclosure requirements.

Attorneys’ Fees.

If any legal action, including, without limitation, an action for arbitration or injunctive relief, is brought relating to this Contract or the breach hereof, the prevailing party in any final judgment or arbitration award, or the non-dismissing party in the event of a dismissal without prejudice, shall be entitled to the full amount of all reasonable expenses, including all court costs, arbitration fees and actual attorneys’ fees paid or incurred in good faith.

Publicity

The Customer grants Dispel the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on Dispel’s website and in other public or private communications with Dispel’s existing or potential customers, subject to Customer’s standard trademark usage guidelines as provided to Dispel from time-to-time or made readily available on their website. We don’t want to list customers who don’t want to be listed, so Customer may send us an email to support@dispel.io stating that it does not wish to be used as a reference.

Force Majeure

Neither we nor Customer shall be liable for any failure to perform any of its obligations under this Agreement (except for payment obligations) due to unforeseen circumstances or causes beyond the party’s reasonable control, which may include acts of God, riot, embargoes, acts of governmental authorities, fire, earthquake, flood, acts of terror, computer attacks or malicious acts (such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility), a failure by a third party hosting provider or utility provider, and accidents.

Modifications

As our business evolves, we may change these Customer Terms and the other components of the Contract (except any Order Forms). If we make material changes to this Agreement, we will provide notice of any changes either by emailing the email address associated with Customer's account or by messaging Customer through the support channel. Customer can review the most current version of the Customer Terms at any time by visiting this page and by visiting the most current versions of the other pages that are referenced in the Contract. The materially revised Contract will become effective upon the posting of the change ("Effective Date"). If Customer (or any Authorized User) accesses or uses the Services after the Effective Date, that use will constitute Customer’s acceptance of any revised terms and conditions. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised Agreement incorporating such changes, or otherwise notified you of such changes.

Waiver

The waiver by either Party of a breach of, or a default under, any provision of this Agreement, shall be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.

Severability

If the application of any provision of this Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the Parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.

Relationship of the Parties

The business relationship of Customer and Dispel is that of an independent contractor and not of a partner, joint venture, employer, employee, or any other kind of relationship. The Parties shall be solely responsible for expenses and liabilities associated with the employment of its respective employees.

Governing Law, Jurisdiction and Venue

This Agreement is to be construed in accordance with, and governed by, the internal laws of the State of New York without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of New York to the rights and duties of the parties. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be commenced in a federal court or in state courts with jurisdiction over New York City, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action, or proceeding.

Notices

Except as otherwise set forth herein, all notices under the Contract will be by email, although we may instead choose to provide notice to Customer through the Services (e.g., a Support Channel notification). Notices to Dispel will be sent to support@dispel.io, except for legal notices, such as notices of termination or an indemnifiable claim, which must be sent to legal@dispel.io. Notices will be deemed to have been duly given (a) the day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Services.

Entire Agreement

The Contract, including these Customer Terms and all referenced pages and Order Forms, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, the Contract supersedes the terms of any online agreement electronically accepted by Customer or any Authorized Users. However, to the extent of any conflict or inconsistency between the provisions in these Customer Terms and any other documents or pages referenced in these Customer Terms, the following order of precedence will apply: (1) the terms of any Order Form (if any), (2) the portions of the Customer-Specific Supplement that apply to Customer (if any), (3) the Customer Terms and (4) finally any other documents or pages referenced in the Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of the Contract, and all such terms or conditions will be null and void.

Contact Us

Please feel free to contact us if you have any questions about Dispel’s Terms of Service. You may contact us at legal@dispel.io or at our mailing address below:

Dispel 61 Greenpoint Ave, Suite 634 Brooklyn, NY 11222 USA