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Customer Terms of Service
These Customer Terms of Service (these “Customer Terms”) describe Customer’s rights and responsibilities when using the remote access and low-attributional tools and platform provided by Dispel, LLC (“us” or “Dispel”). Please read them carefully.
1. Definitions
For purposes of these Customer Terms, the following terms will have the following meanings:
“Confidential Information” means any information that is disclosed by one party to the other party that the receiving party should know (based on the nature of the information or the circumstances of disclosure) is confidential to the disclosing party, including 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.
“Derivative Work” means 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, including the documentation available at the Help Center on our website, that we make available to Customer in connection with the Services or Software.
“Enclave” means 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 software that is distributed as “free software,” “open source software” or under a similar licensing or distribution model, including, but not limited to, software made available under 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, with respect to a Customer, collectively all of a Customer’s Enclaves.
“Reseller” means a reseller that we authorize to resell the Services or Software.
“Services” means the remote access software platform that we host and make available to Customer under these Customer Terms, including all Updates thereto.
“Software” means the remote access software application that we provide to Customer in object code form under these Customer Terms, including all Updates thereto.
“Updates” means any patches, revised versions, modifications, upgrades, bug fixes, new releases, enhanced functionality and other updates to the Services or Software that we make available to Customer under these Customer Terms.
“User” means an individual that the Customer has authorized to access and use the Services or Software.  Users may be employees, contractors, or agents of the Customer. 
2. Ground Rules
2.1        These Customer Terms Form a Part of a Binding Contract with Us
These Customer Terms and any Order Forms (defined below) issued in connection therewith collectively form a binding contract 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. Our Privacy Policy (available at https://legal.dispel.io/‌policies/privacy-policy), Support Policy (available at https://legal.dispel.io/policies/support-policy), and Acceptable Use Policy (https://legal.dispel.io/policies/acceptable-use-policy) are also made part of these Customer Terms.
2.2        Your Agreement On Behalf of Customer
By purchasing a subscription for the Services or a license for the Software or by accessing or using the Services or Software (including through any individual acting on Customer’s behalf), Customer agrees to these Customer Terms. You (i.e., the individual performing any of the foregoing actions on Customer’s behalf) represent that you have the necessary authority to bind Customer to these Customer Terms.
2.3        Changes to these Customer Terms
As our business evolves, we may revise these Customer Terms. If we do so, we will provide notice to Customer either by emailing the address associated with Customer’s account or by messaging Customer through the support channel. Any such changes will not apply to a dispute between Customer and us arising prior to the date on which we notified Customer of such changes. Customer’s access to or use of the Services or Software following any changes to these Customer Terms will constitute Customer’s acceptance of such changes. The “Last Updated” legend below indicates when these Customer Terms were last revised.
3. Customer Choices and Instructions
3.1        Who is a “Customer”? (Hint: There can only be one)
“Customer” is either you (if you are an individual accepting these Customer Terms on your own behalf), or the entity on whose behalf you are accepting these Customer Terms. If you purchase a subscription for the Services or a license for the Software using a corporate email domain, you represent that you are doing so on behalf of such corporate entity, who will be deemed the Customer for the purpose of these Customer Terms. For example, if you signed up using a personal email address and invited a couple of colleagues to protect a test environment but have not purchased the Services on behalf of your company, you (and not your company) are the Customer.
If you are a User (and not the Customer or the individual accepting the Customer Terms on behalf of the Customer), you agree to abide by the provisions of the Customer Terms applicable to Users, including the Acceptable Use Policy.
3.2        Non-Dispel Products
The Services and Software may allow the Customer to provision certain third party software applications (“Non-Dispel Products”) within Enclaves. We may make Non-Dispel Products available to the Customer, including through our Build Resource interface accessible through the Services or Software.  PLEASE BE AWARE THAT NON-DISPEL PRODUCTS ARE NOT OUR PRODUCTS AND, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE CUSTOMER TERMS, WE ARE NOT RESPONSIBLE FOR THE CUSTOMER’S USE OF THE NON-DISPEL PRODUCTS OR ANY CONSEQUENCES THEREOF. WE EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES RELATING TO ANY NON-DISPEL PRODUCTS, INCLUDING ALL IMPLIED WARRANTIES.  WE DO NOT WARRANT THE PERFORMANCE OF THE NON-DISPEL PRODUCTS AND WE MAY NOT PROVIDE SUPPORT THEREFOR. ANY USE OF A NON-DISPEL PRODUCT IS SOLELY SUBJECT TO THE TERMS BETWEEN THE CUSTOMER AND THE APPLICABLE THIRD PARTY PROVIDER.
If the Customer enables a Non-Dispel Product for an Enclave, please be mindful of any Customer Data that may be shared with the Non-Dispel Product’s third party provider and the purposes for which the Non-Dispel Product provider requires access. Notwithstanding anything to the contrary in these Customer Terms, we are not responsible for any use, disclosure, modification or deletion of Customer Data (defined below) that is transmitted to, or accessed by, a Non-Dispel Product.
3.3        Feedback
The more suggestions our customers make, the better our products become. If the Customer or any of its personnel provides any feedback or suggestions to us regarding the Services or the Software, there is a chance we will use it.  Accordingly, the Customer grants to us (for itself and all Users) an irrevocable, perpetual, sub-licensable, transferable, royalty-free, worldwide license to use and otherwise exploit in any manner such feedback or suggestions for any purpose without any obligation or compensation to the Customer, any User, or other personnel. If we choose not to implement the feedback or suggestion, please do not take it personally; we appreciated it nonetheless.
3.4        Purchasing Decisions
Because we like transparency, we may share information about our future product plans with the Customer. Our public statements about our product plans are solely an expression of intent, and Customer must not rely on them when making a purchase. If the Customer decides to buy our Services or Software, 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.
3.5        Open Source Software
Many of our Services and Software are made possible through the use of open source software. To the extent required under the applicable open source license, we are providing the open source software to Customer under the terms of the applicable open source license and not these Customer Terms. The applicable list of open source software can be accessed through the Services and Software. We may update this list of applicable open source software from time to time. Notwithstanding anything to the contrary in these Customer Terms, with respect to each item of open source software, to the extent there are any irreconcilable conflicts between these Customer Terms and any terms of the respective open source license, which the open source software does not permit, such conflicting terms of these Customer Terms will not apply. Any fees that we charge under these Customer Terms 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 open source software license entitle the Customer to receive a copy of the source code of the respective open source software, upon the Customer’s request, we may either direct the Customer to where the Customer can obtain the source code, or make that source code available to the Customer (we may charge a nominal fee for processing such request).
3.6        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.
4. Customer’s Responsibilities
The following are the Customer’s responsibilities when interacting with the Services and Software.
4.1        Users
The Customer may authorize Users to access and use the Services and Software. Each User must have their own unique access credentials to access and use the Services or Software.  Users may not share their access credentials. The Customer is responsible for the acts and omissions of each User, including any violation of the obligations or restrictions set forth in these Customer Terms. The Customer shall ensure that each User is aware of these Customer Terms and agrees to abide by the applicable provisions of the Customer Terms, including the Acceptable Use Policy.
Please be aware that the Customer can modify and re-assign roles in the Organization and Enclaves (including your role) at its discretion.
4.2        Restrictions
Customer will not, and will cause its Users to not: 
(a) copy all or any portion of the Services or Software or Documentation; 
(b) resell or allow third parties to access or use the Services, except for Users accessing or using the Services and Software on the Customer’s behalf; 
(c) use the Services or Software on behalf of a third party; 
(d) decompile, disassemble, design around, or otherwise reverse engineer the Services or Software or any portion thereof, or determine, or attempt to determine, any source code, algorithms, methods, or techniques embodied in the Services or Software or any portion thereof; 
(e) modify, translate, or create any Derivative Works based upon the Services or Software; 
(f) distribute, disclose, market, rent, lease, assign, sublicense, pledge, or otherwise transfer the Services or Software or the Documentation, in whole or in part, to any third party; 
(g) remove or alter any copyright, trademark, trade name, or other proprietary notices, legends, symbols, or labels appearing on or in copies of the Services or Software or the Documentation; 
(h) perform, or release the results of, benchmark tests or other comparisons of the Services or Software with other programs; 
(i) transfer the Services or Software to any computer other than a computer owned by Customer and used by Customer in Customer’s operations; 
(j) permit the Services or Software to be used for processing the data of any third party; 
(k) incorporate the Services or Software or any portion thereof into any other program or product; 
(l) assert, or attempt to assert, any ownership of or other rights to (including, but not limited to, the filing of any applications for patent, trademark, copyright, or any other intellectual property rights), over, or involving the Services or Software or Documentation; 
(m) challenge or assist third parties in challenging the ownership, validity, enforceability, or scope of our and/or our affiliates’ intellectual property rights or other rights in the Services or Software, Documentation or any of our other products; or 
(n) use the Services or Software for any purpose other than in accordance with the terms and conditions of these Customer Terms or that we reasonably deem to be in conflict with the spirit or intent of these Customer Terms.
5. Our Responsibilities
The Customer isn’t the only one with responsibilities; we have some, too.  
5.1        Providing the Services and Software
If the Customer purchased a subscription for the Services, we will make the Services available to the Customer and its Users for the duration set out in Customer’s Order Form (the “Order Term”) in accordance with the then-current Documentation and these Customer Terms. If the Customer purchased a license for the Software, we hereby grant to the Customer a non-exclusive, non-transferable, non-sublicensable license for the Customer to install the Software on the Customer’s servers and allow its employees, contractors, and agents to use the Software for the Order Term in accordance with the then-current Documentation and these Customer Terms. We will adhere to all material government laws, rules, and regulations applicable to the provision of the Services or licensing of the Software.
5.2        Performance
Be assured that (a) the Services and Software will perform materially in accordance with our then-current Help Center pages and (b) we will not materially decrease the functionality of the Service or Software during an Order Term. Outages and other performance issues are governed by the Support Policy. For any breach of a warranty in this section, the Customer’s exclusive remedies are those described in Sections 10.1and 10.2.
5.3        The Dispel Extended Family
We may use our third party contractors and the employees and contractors of our affiliates (collectively, the “Dispel Extended Family”) in exercising our rights and performing our obligations under these Customer Terms. We will be responsible for the Dispel Extended Family’s compliance with our obligations under these Customer Terms.
5.4        Support
During the Order Term for the Service and Software, we will provide support in accordance with our then-current support policy available at https://legal.dispel.io/policies/support-policy (“Support Policy”).
6. Customer Data
6.1        Rights to Customer Data
Users may submit content or information to the Services, such as messages or files (“Customer Data”). To the extent that we have access to Customer Data, we will only transmit, use, and process Customer Data (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, or (d) otherwise in order to perform our obligations under these Customer Terms. Notwithstanding the foregoing, the Customer may provide us with instructions on what to do with Customer Data and we may follow those instructions. For example, the 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. Compliance with the Customer’s instructions may result in the access, use, disclosure, modification or deletion of certain Customer Data. The Customer (not us) will be responsible for any acts that we take, or do not take, in accordance with the Customer’s instructions.
As between us and the Customer, the Customer owns all Customer Data. The Customer represents and warrants that it has secured all rights in and to Customer Data as may be necessary to allow us to use, share, and modify the Customer Data as permitted in these Customer Terms and that our interaction with the Customer Data in accordance with these Customer Terms will not violate any applicable law.
6.2        Protecting Customer Data
Protection of Customer Data is a top priority for us, so we will maintain reasonable 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. The Customer (not us) bears sole responsibility for adequate security, protection and backup of Customer Data when in the Customer’s possession or control. We are not responsible for what Non-Dispel Products do with Customer Data. That is Customer’s responsibility.
6.3        Data Portability and Deletion
Before an Enclave is deprovisioned, the Customer will have the ability to export or share certain Customer Data from the Services; provided, however, that because we have different products with varying features and the Customer has different retention options, the Customer acknowledges that the ability to export or share Customer Data may be limited or unavailable depending on the type of Services and the data retention, sharing or invite settings enabled. Following deprovisioning of an Enclave, 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 on those particular components will be deleted forever and unrecoverable. It will be solely the Customer’s responsibility to backup or copy any data or information associated with an Enclave 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.

7. Proprietary Rights & Confidential Information
7.1        Our Property
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, in and to the Service and Software, including all modifications, enhancements, and Derivative Works made thereto.
7.2        Use and Disclosure Restrictions
Each party (“Disclosing Party”) may disclose Confidential Information to the other party (“Receiving Party”) in connection with these Customer Terms. Our Confidential Information includes the Services, Software, Order Forms, as well as all of our non-public business, product, technology and marketing information. Customer’s Confidential Information 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, except for any personally identifiable data, 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.
7.3        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 these Customer Terms; and (b) not use or disclose any Confidential Information of the Disclosing Party other than to perform its obligations or exercise its rights under these Customer Terms. 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 these Customer Terms.
7.4        Compelled Access or Disclosure
The Receiving Party may 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.
7.5        Equitable Relief
Customer acknowledges and agrees that, due to the unique nature of our Confidential Information, there can be no adequate remedy at law to compensate us for the breach of any provision of this Section 7, any such breach will allow Customer or third parties to compete unfairly with us resulting in irreparable harm to us that would be difficult to measure, and, therefore, upon any such breach or threat thereof, we will be entitled to injunctive and other appropriate equitable relief (without the necessity of proving actual damages), in addition to whatever remedies we may have at law, without the necessity of posting any bond or other security.
8. Purchases; Payments
Customer may purchase subscriptions for the Services, licenses for the Software, and support services either directly from us or from a Reseller. If Customer purchases from a Reseller, applicable purchasing terms, including pricing and payment terms and conditions, will be as agreed in ordering documentation between Customer and Reseller. The provisions of this Purchases; Payments section 8 apply to direct purchases from us.
8.1        Payment
We will invoice Customer the fees in U.S. dollars specified in the applicable ordering documentation between us and Customer, including any online orders submitted by Customer (“Order Form”).
If the Customer has a payment method on file with us, we may use that payment method to automatically bill the Customer. 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 or Software be subject to withholding tax by any government, Customer will reimburse us for such withholding tax.
8.2        Late Fees
Payment is due thirty (30) days from the invoice date, unless otherwise specified on an Order Form. Any payment due or portion thereof not received by us as set forth in this Section 8.2 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.
8.3        Refund Policy; Suspension Due to Late Payment(s)
Payment obligations are non-cancelable and, except as expressly stated in these Customer Terms, fees paid are non-refundable. If Customer fails to pay any undisputed invoice when due, and fails to cure such non-payment within thirty (30) days from Customer’s notice thereof, we may, in our sole discretion, partially or fully suspend Customer’s access to and use of the Services or Software, as applicable.
9. Term
9.1        Term
These Customer Terms remain effective until all subscriptions and licenses ordered hereunder have expired or been terminated or until these Customer Terms have been terminated in accordance with the Termination Section 10. Termination of these Customer Terms will terminate all subscriptions and all Order Forms.
9.2        Auto-Renewal
Unless an Order Form says something different, subscriptions for the Services or licenses for the Software purchased in annual increments will automatically renew for successive one (1) year periods after the conclusion of the preceding term, unless either party notifies the other party that it does not wish to renew the subscription or license at least thirty (30) days prior to the conclusion of the then-current term.
Unless an Order Form says something different, subscriptions for the Services or licenses for the Software purchased in monthly increments will automatically renew for successive one (1) month periods after the conclusion of the preceding term, unless (a) the Customer notifies us that it does not wish to renew the subscription or license at least one (1) business day prior to the expiration of the then-current term, or (b) we notify Customer that we do not wish to renew the subscription or license at least fourteen (14) days prior to the conclusion of the then-current term. The per-unit pricing during any such renewal term will remain the same as it was during the immediately prior term.

10. Termination
10.1        Termination for Cause
We or the Customer may terminate these Customer Terms (a) if either party fails to cure any material breach of these Customer Terms within thirty (30) days of receipt of written notice thereof from the other party (for the avoidance of doubt, failure to pay any amounts due is a material breach of these Customer Terms), or (b) 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.  We may terminate these Customer Terms immediately on notice to Customer if we reasonably believe that the Services or Software are being used by Customer or its Users in violation of applicable law.
10.2        Effect of Termination
Upon the expiration or termination of these Customer Terms, the rights granted to Customer hereunder will terminate. Within five (5) days after any termination or expiration of these Customer Terms, the Customer will return to us or destroy all of our Confidential Information in its possession or control. If the Customer purchased directly from us (and not from a Reseller), (a) upon any termination of these Customer Terms by the Customer for cause in accordance with Section 10.1, we will refund the Customer a pro-rata portion of any prepaid fees covering the remainder of the term of all Services and Software after the effective date of termination, and (b) upon any termination of these Customer Terms by us for cause in accordance with Section 10.1, the Customer will pay us any unpaid fees for the Services and Software for the remainder of the Order Term. In no event will any termination relieve the Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination.
10.3        Survival
The following Sections will survive any termination or expiration of these Contract Terms:
​1 Definitions, 3.2 Non-Dispel Products, 3.3 Feedback, 4 Customer's Responsibilities, 7 Proprietary Rights & Confidentiality, 8 Purchases; Payments, 10.2 Effect of Termination, 10.3 Survival, 11 Representations and Warranties, 12 Limitation of Liability, and 14 General Provisions.
11. Representations and Warranties; Disclaimers
11.1        Representations and Warranties
The Customer represents and warrants that it has validly entered into these Customer Terms and has the legal power to do so. The Customer further represents and warrants that it is responsible for the conduct of its Users and their compliance with the terms of these Customer Terms and the User Terms.
11.2        2FA
The Services and Software support logins using two-factor authentication (“2FA”), which is known to reduce the risk of unauthorized use of or access to the Services and Software. We therefore will not be responsible for any damages, losses, or liability to the Customer, Users, or anyone else if any event leading to such damages, losses, or liability would have been prevented by the Customer’s or its Users’ use of 2FA. Additionally, the Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well the accounts of its Users. We will not be responsible for any damages, losses, or liability to the Customer, the Users, or anyone else, if such information is not kept confidential by the Customer or its Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services or Software.
Users must use access credentials to access and use the Services and Software. We may also provide the Customer with certain hardware to assist in accessing and using the Services and Software (“Provided Hardware”). The Customer is responsible for guarding the security of such access credentials and/or Provided Hardware, as such access credentials and/or Provided Hardware will enable access to the Organization and Enclaves until such access credentials and/or Provided Hardware are deactivated by either the Customer or by us (upon the Customer’s request to us). The Customer must promptly notify us of any confidentiality breach or unauthorized use of the Customer’s access credentials or if the Provided Hardware is hacked, misplaced or misappropriated. The Customer is solely responsible for all use or misuse that occurs within an Enclave and any claims arising therefrom, including by any User. Under no circumstances will we be held responsible or liable for any such use, misuse, or claims including, but not limited to, any data breaches.
Certain Provided Hardware may consist of standard equipment purchased by us through industry suppliers of such equipment onto which we may install its proprietary software to provide a connection to our networks in order to provide the Services to the Customer. We will not be held responsible or liable for, nor do we make any representations or warranties as to the fitness, integrity, or security of, such standard equipment. Support for the standard equipment will be limited to the standard support services provided by the manufacturer of such standard equipment and our support will be limited to our software or networks.
Certain of our services (i.e., gateways, pangolins, and wickets) operate or connect via virtual private network (VPN), cellular, microwave beam, or satellite uplink which are readily identifiable as VPN, cellular, microwave beam, or satellite uplinks. Therefore, the Customer is solely responsible for its use of such Services in locations where the use of VPN, cellular, microwave beam, or satellite uplinks are prohibited by law or are otherwise sufficient to raise security, location, or other concerns. Under no circumstances will we be held responsible or liable for any losses, damages, or claims resulting from the use of such Services.
11.3        Disclaimer
EXCEPT AS OTHERWISE EXPRESSLY SET OUT IN THESE CUSTOMER TERMS, THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND WE DISCLAIM ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICES, SOFTWARE, PROVIDED HARDWARE, AND ANY NON-DISPEL PRODUCTS, 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 SOFTWARE 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.
12. 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:
IN NO EVENT WILL EITHER THE CUSTOMER OR ANY MEMBER OF THE DISPEL EXTENDED FAMILY HAVE ANY LIABILITY TO THE OTHER 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.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT WILL THE DISPEL EXTENDED FAMILY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE CUSTOMER TERMS OR THE USER TERMS (WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY THE CUSTOMER TO US OR TO A RESELLER FOR THE SERVICES OR SOFTWARE IN THE TWELVE (12) MONTHS PRECEDING TO THE DATE THE CLAIM AROSE.
The limitations under this 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 Section allocates the risks under these Customer Terms between the parties, and the parties have relied on these limitations in determining whether to enter into these Customer Terms and the pricing for the Services and Software.
13. Indemnification
13.1        Our Indemnification of the Customer
We agree to defend, indemnify, and hold harmless the Customer from and against any and all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (including attorneys’ fees), incurred by the Customer as a result of any claims or actions that are brought by a third party as a result of (a) any breach by us of our representations and warranties under these Customer Terms; or (b) an allegation that the Customer’s access or use of the Services or Software in accordance with these Customer Terms infringe the U.S. intellectual property rights of any third party.
13.2        Customer’s Indemnification of Us
The Customer agrees to indemnify, defend, and hold harmless the Dispel Extended Family from and against any and all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, (including attorneys’ fees) incurred by the Dispel Extended Family as a result of any claims or actions that are brought by a third party as a result of (a) the Customer’s or any User’s use of, or activities in connection with, the Services or Software (including for the avoidance of doubt, any omissions in, negligent or more culpable use or misuse of the Services or Software by the Customer or a User); (b) any products, applications, services, photographs, graphics, images, videos, audio, text, data, content, and other materials that the Customer or a User posts, uploads, uses, receives, sends, distributes, stores, or otherwise transmits through or using the Services or Software; (c) any breach by the Customer or a User of these Customer Terms or the User Terms; (d) any violation, or alleged violation, by the Customer or a User of the rights of another person or entity, including without limitation any intellectual property, publicity, confidentiality, privacy, or propriety right; or (e) any violation or alleged violation by the Customer or a User of any applicable law or regulation, whether in the United States or anywhere else in the world.
13.3          Indemnification Procedure
Each party will notify the other party of any claim or action for which such party seeks indemnification or defense under these Customer Terms (provided that any delay in providing such notice will not relieve the indemnifying party of its indemnification or defense obligations to the extent the indemnifying party is not materially prejudiced thereby) and give the indemnifying party authority, reasonable information, and assistance (at the indemnifying party’s expense) for the defense of such claim or action. The indemnifying party will not, without the indemnified party’s prior written consent, enter into any settlement agreement in connection with a claim or action that: (a) admits guilt, fraud, liability, or wrongdoing of the indemnified party; (b) requires the indemnified party to commit to action or to refrain from action; or (c) provides for any damages other than money damages for which the indemnified party is indemnified. The indemnified party reserves the right to participate in the defense of any indemnified claim at such indemnified party’s cost.
13.4        IP Infringement Exceptions.
Notwithstanding anything to the contrary in Section 13.1, we will not be required to indemnify, defend, or hold harmless the Customer in the event of a claim or action alleging that the Services or Software infringes a third party’s intellectual property rights if the infringement results from: (a) modification of the Services or Software by on behalf of the Customer (other than by us); or (b) use of the Services or Software in a manner inconsistent with the Documentation therefor or these Customer Terms (collectively, the “IP Infringement Exceptions”). If the Services or Software become (or in our reasonable opinion are likely to become) the subject of an infringement claim or action, we will have the right, at our sole option and expense, to obtain for the Customer the right to continue use of the Services or Software or to replace or modify the Services or Software so that it is no longer infringing. If neither of the foregoing options is reasonably available, then we can terminate these Customer Terms by written notice to the Customer.
14. General Provisions
14.1        Export Control
The Customer’s access to and use of the Services and Software is subject to all export laws, regulations, orders, or other restrictions imposed by the U.S. government (including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the U.S. Department of State) and by any other relevant governmental entity. The Customer represents, warrants, and covenants that it is: (a) not located in Cuba, Iran, North Korea, Sudan, or Syria; and (b) not a denied party as specified in the regulations listed above. The Customer will comply with all applicable export and re-export control laws and regulations, including the EAR, trade and economic sanctions maintained by OFAC, and the ITAR. Notwithstanding any other provision of this Agreement to the contrary, the Customer will not import, export or re-export, sell, transfer, divert, or otherwise dispose of, directly or indirectly, the Services or Software or any related information to any country, other destination, or person to which such import, export, or re-export is restricted or prohibited, or as to which any such government or any agency thereof requires an export license or other governmental approval at the time of such import, export, or re-export without first obtaining such license or governmental approval.
14.2        Assignment
Except as provided in this section, the Customer may not assign or otherwise transfer these Customer Terms or any of the Customer’s rights hereunder or delegate any of the Customer’s duties hereunder, in whole or in part, without our prior written consent, which will not be unreasonably withheld, delayed, or conditioned. Any purported assignment, transfer, or delegation in violation of this paragraph will be void and of no effect, and a material breach of these Customer Terms. Notwithstanding the foregoing, the Customer may, without our prior written consent, assign its rights and obligations under these Customer Terms in the event of a change of control of the Customer or in the event of the sale of substantially all of the Customer’s assets or business to a successor, provided that the 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 the Customer’s assets or business will be deemed to have assumed all rights and obligations under these Customer Terms. We may assign our rights and obligations under these Customer Terms 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 our assets or business to a successor.
14.3        Legal Compliance; Restricted Rights
The Customer agrees to comply with all applicable laws. The Customer acknowledges and agrees that we may be subject to reporting and disclosure requirements with respect to the Services and Software (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. The Customer agrees to fully cooperate with Dispel in providing any reasonable information requested by Dispel to fulfill our 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 and Software ordered and the 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.
14.4        Attorneys’ Fees.
If any legal action, including, without limitation, an action for arbitration or injunctive relief, is brought relating to these Customer Terms 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, will 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.
14.5        Publicity
The Customer grants us the right to use the Customer’s company name, logo, brand names, and brand logos as a reference for marketing or promotional purposes on our website and in other public or private communications with our existing or potential customers, subject to the Customer’s standard trademark usage guidelines as provided to us 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. Unless the Customer has a reference contract, they may send us an email to [email protected] stating that it does not wish to be used as a reference.
14.6        Application of Consumer Law
Services and Software are enterprise tools intended for use by businesses and organizations and not for consumer purposes. To the maximum extent permitted by law, the Customer hereby acknowledges and agrees that consumer laws do not apply. If, however, any consumer laws (e.g., in Australia, the Competition and Consumer Act of 2010 (CCA)) do apply and cannot otherwise be lawfully excluded, nothing in these Customer Terms will restrict, exclude or modify any statutory warranties, guarantees, rights or remedies that Customer may have, and our liability is limited (at our option) to the replacement, repair or resupply of the Services and Software or the pro-rata refund to the Customer of pre-paid fees covering the remainder of the term after termination of these Customer Terms.
14.7        Force Majeure
Neither we nor the Customer will be liable for any failure to perform any of its obligations under these Customer Terms (except for payment obligations) due to unforeseen circumstances or causes beyond the party’s reasonable control, which may include acts of God, riot, pandemics, epidemics, 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.
14.8        Waiver
The waiver by either Party of a breach of, or a default under, any provision of these Customer Terms, will be in writing and will not be construed as a waiver of any subsequent breach of or default under the same or any other provision of these Customer Terms, nor will 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.
14.9        Severability
If the application of any provision of these Customer Terms to any particular facts or circumstances will 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 these Customer Terms will not in any way be affected or impaired thereby and (b) such provision will 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.
14.10          Relationship of the Parties
The business relationship of the Customer and us is that of an independent contractor and not of a partner, joint venture, employer, employee, or any other kind of relationship. The Parties will be solely responsible for expenses and liabilities associated with the employment of its respective employees.
14.11          Governing Law, Jurisdiction and Venue
These Customer Terms are 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 these Customer Terms will 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.
14.12          Notices
Except as otherwise set forth herein, all notices under these Customer Terms 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 us will be sent to [email protected], except for legal notices, such as notices of termination or an indemnifiable claim, which must be sent to [email protected]. 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.
14.13          Entire Agreement
These Customer Terms, including all documents referenced herein, together with any proof of concept agreement constitute 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, these Customer Terms supersede the terms of any online agreement electronically accepted by the Customer or any 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 terms of any Proof of Concept Letter of Engagement (if any), (3) the portions of the Customer-Specific Supplement that apply to the Customer (if any), (4) the Customer Terms, and (5) 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 these Customer Terms, and all such terms or conditions will be null and void.
14.14          Contact Us
Please feel free to contact us if the Customer has any questions about these Customer Terms. The Customer may contact us at [email protected] or at our mailing address below:
61 Greenpoint Ave, Suite 634
Brooklyn, NY 11222
USA