Partner Program Agreement - Japan
This Dispel Partner Program Agreement (this “Agreement”), which consists of this document and the exhibits identified below, is entered into as of the Effective Date by and between Dispel Global, Inc ("Dispel") and Partner, as set forth above or through clicking you accept this Agreement when onboarding onto the Dispel partner program dashboard at partners.dispel.com. Capitalized terms not defined in this Agreement have the meanings set forth in the exhibits.
1. Products.
Dispel makes available the Remote Access Services (as defined in Exhibit A; the “Products”), and Partner desires to market and resell the Products in the Territory (as defined in your Partner Portal), in accordance with the terms and conditions of this Agreement. In connection with the resale of the Products, Partner may offer to resell to Customers the Support Services (as defined in Exhibit A).
2. Pricing.
Resale prices for the Products and for Support Services will be established by Partner at its sole discretion. For each such resale, Partner will submit a purchase order to Dispel (“Purchase Order”) via the Partner Portal. The submittal of a Purchase Order will act as authorization for Dispel to proceed with the ordering process.
3. Signatures.
The parties acknowledge that they have read and understand this Agreement, including this document and all exhibits, and agree to all of the terms and conditions of this Agreement by digital signature or checking the acceptance box on the Dispel Partner Portal website. By accessing the Dispel partner portal at partners.dispel.com and continuing to use the website, you agree to these terms and any updates to these terms.
Exhibit A: Terms and Conditions
1. Partner’s Rights.
1.1 Marketing and Resale Rights.
Subject to the terms and conditions of this Agreement (including the payment obligations set forth in Section 5.4), Dispel grants to Partner a nonexclusive, nontransferable right and license during the Term within the Territory to:
(a) advertise, market, and promote the Products to Customers in the Territory;
(b) resell directly (i.e., not through distributors or resellers) to Customers in the Territory and to contractors for resale to Customers pursuant to Section 1.6 (i) the right to access and use the Remote Access Services, and (ii) the Support Services; and
(c) access and use the Remote Access Services for the sole purpose of providing the Support Services for Customers in accordance with Section 3.1 and exercising the rights in Section 1.5; provided that Partner shall purchase from Dispel a demo environment to access and use the Remote Access Services.
1.2 Documentation Right.
Dispel grants to Partner a nonexclusive, nontransferable right and license during the Term to reproduce and distribute to Customers in the Territory the Documentation in connection with the resale of the Products pursuant to Section 1.1(b).
1.3 Trademark License.
Dispel grants to Partner a nonexclusive, nontransferable right and license during the Term to use Dispel’s registered or common law trademarks and service marks solely: (a) in connection with Partner’s marketing, resale, advertising, and promotion of the Products in accordance with this Agreement; and (b) in accordance with any usage guidelines that Dispel provides to Partner from time to time. Partner agrees that all goodwill arising out of the use of the Trademarks by Partner will accrue to the sole benefit of Dispel. Partner will not at any time challenge, or assist others in challenging, the Trademarks. Partner will submit all advertising, marketing, branding, and promotional materials related to the Products to Dispel for advance review and approval, such approval not to be unreasonably withheld or delayed. Partner grants to Dispel a nonexclusive, nontransferable, license to use Partner’s registered and/or common law trademarks and service marks (the “Partner Trademarks”) solely in connection with any mutually-agreed upon marketing activities, in accordance with any usage guidelines that Partner provides to Dispel. Dispel agrees that all goodwill arising out of the use of the Partner Trademarks by Dispel will accrue to the sole benefit of Partner.
1.4 Customer Terms of Service.
Prior to or simultaneously with completing the resale of a Product to a Customer, Partner shall ensure that such Customer has expressly agreed to the Customer Terms of Service. If a Customer does not agree to the Customer Terms of Service, that Customer will not be allowed to use the Remote Access Services or receive Support Services, and Dispel shall not be liable to Partner for refunding any Fees paid. For the avoidance of doubt, Dispel shall provide the Products and Support Services to the Customer only in accordance with the Customer Terms of Service.
a) Partner shall obtain Dispel’s prior, written approval (not to be unreasonably withheld) of the manner in which Partner intends to ensure that each Customer expressly agrees to the Customer Terms of Service, and upon Dispel’s request, shall provide documentation evidencing each Customer’s acceptance of the Customer Terms of Service.
b) Partner will immediately advise Dispel if Partner becomes aware of any breach by a Customer of any provision of the Customer Terms of Service.
c) In the event of a conflict between the Customer Terms of Service and any agreement between Partner and Customer, the Customer Terms of Service shall take precedence with respect to Dispel’s obligations and performance.
d) Nothing in this Agreement, the Customer Terms of Service, or any agreement between Partner and Customer obligates or will obligate Dispel to develop or assist in developing any Government-Off-The-Shelf products.
1.5 Partner Internal Use.
Subject to the terms and conditions of this Agreement, Dispel hereby grants to Partner a nonexclusive, nontransferable, royalty-free (except as set forth in Section 5), revocable right to use the Remote Access Services during the Term and in accordance with the Documentation, for the sole purpose of providing demonstrations of the Products to prospective Customers in the Territory and for no other purpose. Partner acknowledges and agrees that it shall purchase from Dispel a demo environment to access and use the Remote Access Services pursuant to this Section 1.5.
1.6 Right of Sublicense.
The rights granted pursuant to Sections 1.1, 1.2, 1.3, and 1.5 are nonsublicensable, except to the extent that Partner is engaged in a sales process to Customers involving multiple tiers of sales (i.e., selling to and through multiple tiers of contractors), in which case Partner shall have a limited right to sublicense the rights set forth in Sections 1.1, 1.2, 1.3, and 1.5 to only those third parties directly involved in such resale to Customers.
Any sublicense granted pursuant to this Section 1.6 shall be subject to the following restrictions:
a) such sublicense shall be limited solely to the contractor(s) duly authorized by Partner; provided that Partner shall report its duly authorized contractor(s) to Dispel on a regular basis as designated by Dispel;
b) such sublicense shall be subject to, and subordinate to, this Agreement and, in case of any conflict, the terms of this Agreement shall prevail;
c) Partner shall be responsible for, and shall ensure, any sublicensee’s compliance with this Agreement; and
d) Dispel shall have the right to review any such sublicense agreement upon request.
1.7 Certain Restrictions.
Partner shall not:
a) resell, sublicense or otherwise make available the Products except as permitted by this Agreement;
b) resell, sublicense or otherwise make available the Products to any Dispel Direct Competitor;
c) represent itself as an agent of Dispel for any purpose, nor pledge Dispel's credit or give any condition or warranty or make any representation on Dispel's behalf or commit Dispel to any contracts;
d) copy, decompile, disassemble, design around or otherwise reverse engineer the Products or any portion thereof, or determine or attempt to determine any source code, algorithms, methods, or techniques embodied in the Products or any portion thereof, or extract ideas, algorithms, procedures, workflows, or hierarchies from the Products or otherwise use the Products for the purpose of creating another product or service unless such act is permitted under applicable law (even in the case where such act is permitted under applicable law, Partner shall not use anything learned from such act in a commercial or marketing setting);
e) interfere with, or disrupt the operation of, the servers or networks used to make the Products available, or violate any requirements, procedures, policies, or regulations of such servers or networks or their providers;
f) post, transmit, or otherwise make available through or in connection with the Products any virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file, or program that is, or is potentially, harmful or invasive or intended to damage or hijack the operation of, or to monitor the use of, any hardware, software, or equipment;
g) modify, translate, or create any Derivative Works based upon the Products (except to the extent this restriction is expressly prohibited by applicable law);
h) remove or alter any copyright, trademark, trade name, or other proprietary notices, legends, symbols, or labels appearing on or in copies of the Products except as permitted under this Agreement;
i) perform, or release the results of, benchmark tests or other comparisons of the Products with other programs without Dispel’s prior written consent;
j) transfer the Products to any computer other than a computer owned by Partner and used by Partner in Partner’s operations, except as permitted by this Agreement;
k) permit the Products to be used for the benefit of any third party (i.e., in an ASP, outsourcing or service bureau relationship or processing the data of any third party), except as permitted by this Agreement;
l) incorporate the Products or any portion thereof into any other program or product, or use the Products for production purposes;
m) 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 Products;
n) challenge or assist third parties in challenging the ownership, validity, enforceability, or scope of Dispel’s and/or its affiliate’s intellectual property rights or other rights in the Products or Trademarks, or, unless otherwise expressly permitted hereunder, use Dispel’s and/or its affiliate’s intellectual property rights filed and/or registered in the US anywhere in the world as if such intellectual property rights were filed and/or registered worldwide (except to the extent this restriction is prohibited by applicable law);
o) advertise, market, promote, sell, distribute, use, export, or otherwise make available the Products to any entities or person not located in the Territory (including but not limited to any foreign offices, branches, locations, affiliates, or subsidiaries of a Territory entity or person that is located outside of the Territory), without Dispel’s express written prior permission;
p) in connection with the Products and Support Services or in performance of this Agreement (i) defame, threaten, abuse, or harass any person, or otherwise violate the legal rights of any person or entity, including any copyright, trademark, trade secret, right of publicity or privacy, or any other proprietary right; (ii) harvest or collect personally identifiable information from or about any person other than in the ordinary course of business or otherwise in violation of any applicable law; (iii) impersonate any person or entity, or falsely state or otherwise misrepresent Dispel’s affiliation with any person or entity; or (iv) engage in any fraudulent or otherwise tortious or unlawful conductor;
q) violate any laws or regulations, ordinances, and requirements of any governmental authority applicable to Partner’s activities under this Agreement; or
r) engage in any other activity prohibited by this Agreement or that is reasonably deemed by Dispel to be in conflict with the spirit or intent of this Agreement.
1.8 Enablement Training.
Dispel offers training and certifications with respect to the Products and Support Services (“Enablement Training Program”). Through the Enablement Training Program, individuals may be certified by Dispel as Dispel Systems Certified Specialists. Certification information and standards may, at Dispel’s sole discretion, be modified or changed from time to time by Dispel without notice to Partner.
1.9 Tiers.
a) Discounts. Partner will be eligible to receive benefits based upon its achieved tier within the Partner Program, including discounts off the list price for the Products. Tier information is included in the Partner Portal, which Dispel may modify, at its sole discretion, from time to time. Dispel may change eligibility requirements and will notify the Partner of any such updates. Tiers may be specific to a deal depending on how the deal was sourced, client renewal decisions, or other factors set at Dispel’s sole discretion.
b) No Hardware Discounts. Some implementations of the Dispel Products use hardware to provide integration into the broader system. To the extent that Partner resells any such hardware, Partner does not receive a discount on such connection hardware and any physical asset sold by Dispel (“System Enablement Components” or “Hardware”).
c) Determining Tiers. Dispel shall, in its sole discretion, determine the tier a Partner is eligible for provided such determination is consistent with the then-current version of the Tier information available in the Dispel Partner Portal (which may be updated from time to time with written notice from Dispel).
1.10 Resale Policy Changes.
From time to time, Dispel may institute new or revised policies and procedures regarding the resale of the Products. Upon Partner’s receipt of notice from Dispel of any such new or revised policies or procedures, Partner will promptly implement such policies and procedures.
2. Ownership.
2.1 Generally.
As between Dispel and Partner, Dispel and its licensors own all right, title, and interest in and to the Products and Trademarks (including all copies, modifications, and Derivative Works thereof and all intellectual property and proprietary rights embodied therein), except for the limited right and licenses expressly granted to Partner in this Agreement. For the avoidance of doubt, any modifications, Derivative Works, intellectual property, or proprietary rights created by Partner in contravention of this Agreement shall belong exclusively to Dispel and Partner hereby assigns to Dispel all right, title, and interest in and to all such modifications, Derivative Works, intellectual property, and proprietary rights in any manner and for any purpose.
2.2 Feedback.
If Partner provides Dispel with any suggestions, ideas, feedback, reports, error identifications, or other information related to the Products or Dispel’s other products or services (“Feedback”), Partner hereby assigns to Dispel all rights, titles, and interests in and to all Feedback, including all patent rights, copyrights (including the rights stipulated under Articles 27 and 28 of the Copyright Act of Japan), trade secrets, and other intellectual property or proprietary rights therein, and agrees to assist Dispel in perfecting such rights and obtaining assignments of such rights from all individuals involved in generating the Feedback. Further, Partner shall not, and cause such individuals not to, exercise its/their moral rights in regard to the Feedback to Dispel and those designated by Dispel.
3. Channel Management.
3.1 Maintenance and Support Services.
The list price for each Product may include certain labor hours for Support Services. Any Support Services requested by Customer in excess of the labor hours included in the list price shall be as detailed in the Pricing Guidelines and subject to the execution of a Purchase Order. Partner may describe to each Customer each of the tiers of maintenance and support offered by Dispel prior to the Partner and Customer completing the ordering documentation for the purchase of Products from Partner (“Order Documentation”).
3.2 Problem Resolution.
Partner shall keep Dispel informed on a regular basis regarding any problems encountered with the Products by Partner or Customers, and regarding any resolutions developed for those problems. Partner shall communicate promptly to Dispel any and all modifications, design changes, or improvements to the Products suggested by any entity or person to Partner.
4. Dispel Professional Services.
To the extent that Partner wishes to engage Dispel to provide training, operational, technical, or other professional services to Customer in addition to the Support Services, the terms and conditions governing such professional services will be set forth in a separate professional services agreement entered into between Dispel and Partner. Nothing contained herein shall limit a Customer’s right to directly contact Dispel should such Customer desire to purchase training, operational, technical, or other professional services from Dispel. Partner will assist Customer with any such request for training, operational, technical, or other professional services from Dispel.
5. Pricing; Payment Terms.
5.1 Pricing.
Resale prices for the Products and Support Services will be established by Partner at its sole discretion. Partner will purchase the Products and Support Services from Dispel at prices set forth in the pricing guidelines provided by Dispel to Partner, which may be updated by Dispel from time to time with written notice to Partner (“Pricing Guidelines”), subject to any discounts Partner is eligible to receive under the Partner Program. Partner may bundle Dispel products with other services, and Dispel’s pricing in no way affects a Partner’s pricing of those other services. The Pricing Guidelines are Dispel’s Confidential Information.
5.2 Purchase Order.
Partner will submit to Dispel a Purchase Order for each resale of the Products and any Support Services. Dispel may accept or reject any Purchase Order at its discretion. By placing a Purchase Order, Partner: (a) represents and warrants that the applicable Customer has agreed to the Customer Terms of Service; and (b) agrees to pay Dispel the amounts for the ordered Products and Support Services as set forth in the Pricing Guidelines, subject to any applicable discounts and any applicable cash credits under Section 3.1 (collectively, “Fees”).
5.3 Billing.
All Fees for the Products and Support Services will be billed to the Partner when the Products and Support Services are shipped/provided to the Customer. All Fees for items purchased by Dispel for the Customer will be pre-billed to the Partner and will be paid by the Partner in accordance with Section 5.4, notwithstanding Section 5.2. Any adjustments to subscription-based Fees made mid-billing cycle will be calculated and billed to Partner in arrears on the subsequent invoice. All orders made by Partner to Dispel are non-cancelable and all payments made by Partner to Dispel are non-refundable, including but not limited to, if any Customer fails to pay Partner for an order or fails to agree to the Customer Terms of Service and Dispel has terminated such Customer’s access to Services or Products as a result thereof. Other than any applicable cash credits under Section 3.1, under no circumstances will Dispel be obligated to issue a credit to Partner.
5.4 Payment.
Each invoice issued by Dispel will identify the Fees payable by Partner. All amounts payable under this Agreement will be due within thirty (30) days of the receipt of the invoice therefor; unless the parties have agreed to a specific payment schedule in the Purchase Order, in which case the payment schedule in the Purchase shall control for that order. Payments must be remitted to the account identified by Dispel and are due on the date, and in the currency stated, in the invoice. Partner will pay such amounts regardless of whether it has received any payment from Customers. Any amounts not paid when due shall accrue a late fee at the rate of one and a half percent (1.5%) per month or the maximum rate allowed by law, whichever is lower. In the event Partner fails to pay within sixty (60) days the outstanding Fees set forth in an invoice from Dispel or payment schedule in the Purchase Order, Dispel may, in its sole discretion, (a) suspend or terminate the applicable Customer’s access to the Remote Access Services and/or Support Services, and/or (b) terminate this Agreement, upon written notice to Partner.
5.5 Taxes.
Partner will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on Partner upon or with respect to the transactions and payments under this Agreement. All fees payable by Partner are exclusive of applicable taxes and duties, including VAT, GST, excise taxes, sales and transactions taxes, and gross tax receipts (“Indirect Taxes”). Dispel may charge, and Partner will pay, all Indirect Taxes that Dispel is legally obligated or allowed to collect from Partner. Partner will provide all information to Dispel as reasonably required to determine whether Dispel is obligated to collect Indirect Taxes from Partner under any applicable law. Dispel will not collect, and Partner will not pay, any Indirect Tax for which Partner furnishes Dispel a properly completed exemption certificate or a direct payment permit certificate for which Partner may claim an available exemption from such Indirect Tax. All payments made by Partner to Dispel under this Agreement will be made free and clear of any withholding or deduction for taxes. If any taxes (for example, international withholding taxes) are required to be withheld on any payment, Partner will pay additional amounts as necessary so that the net amount received by Dispel is equal to the amount then due and payable under this Agreement.
5.6 Duties and Shipping Fees.
Partner is responsible for any foreign exchange, duty, shipping charges, and additional processing fees incurred, including any BIS license fees. If these fees are incurred after the initial invoice was sent, Dispel will invoice the Partner payable under Section 5.4.
5.7 Records and Audit Rights.
During the Term and for a period of at least two (2) years thereafter, Partner will maintain complete and accurate records and accounts relating to this Agreement, including for each resale of the Products and Support Services resold by Partner: (a) the Customer’s name and address; (b) Product components made available to the Customer; and (c) documentation showing that the Customer agreed to the Customer Terms of Service. Dispel may audit such records and accounts of Partner from time to time to verify Partner’s compliance with the terms and conditions of this Agreement. Any such audit will be at Dispel’s expense; provided, however, that if such audit reveals an underpayment of three percent (3%) or more of fees payable to Dispel with respect to any calendar month, or any other material breach of this Agreement by Partner, Partner will promptly reimburse Dispel for all expenses in connection with such audit. Partner will promptly pay Dispel the amount of any underpayment (and correct any other noncompliance) revealed by any such audit.
6. Warranty Disclaimer.
6.1 Warranty Disclaimer.
EXCEPT FOR THE WARRANTY SET FORTH IN THE THEN-CURRENT VERSION OF THE CUSTOMER TERMS OF SERVICE, DISPEL MAKES NO WARRANTIES WITH RESPECT TO THE PRODUCTS, THE SUPPORT SERVICES, ANY DOCUMENTATION, OR ANY OTHER PRODUCTS OR SERVICES, AND DISCLAIMS ALL STATUTORY OR IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ALL WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. DISPEL SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE PRODUCTS, THE SUPPORT SERVICES, OR ANY OPEN SOURCE COMPONENT WILL MEET ANY PARTNER OR CUSTOMER REQUIREMENTS OR THAT THE OPERATION OR USE OF THE PRODUCTS OR ANY OPEN SOURCE COMPONENT WILL BE UNINTERRUPTED OR ERROR-FREE. UNDER NO CIRCUMSTANCES SHALL DISPEL HAVE ANY LIABILITY WHATSOEVER FOR ANY HARDWARE PROVIDED BY DISPEL TO CUSTOMER IN CONNECTION WITH THIS AGREEMENT.
6.2 Restrictions.
Partner will not make: (a) any representation or warranty on behalf of Dispel; (b) any representation concerning the quality, performance, or other characteristics of the Products or the Support Services, other than those which are consistent in all respects with the applicable Documentation; or (c) any commitment to modify any part of the Products or the Support Services.
7. Term and Termination.
7.1 Term.
This Agreement will commence on the Effective Date and, unless earlier terminated in accordance with this Agreement, will continue in full force and effect until the end of the Initial Term set forth on the Cover Page. Thereafter, this Agreement will automatically renew for successive one (1) year periods (each, a “Renewal Term”), unless either party notifies the other party in writing at least sixty (60) days prior to the end of the then-current term that it does not wish to renew this Agreement, or unless earlier terminated in accordance with this Agreement. The Initial Term and any Renewal Terms are collectively referred to as the “Term.”
7.2 Termination by Dispel.
Dispel may terminate this Agreement immediately upon written notice to Partner if: (a) Partner materially breaches Section 1 (“Partner’s Rights.”), Section 5 (“Pricing; Payment Terms.”) or Section 9 (“Confidentiality.”) and fails to cure such breach within seven (7) days after receipt of written notice of such breach from Dispel; (b) Partner materially breaches any other provision of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from Dispel or (c) Partner challenges or assists third parties in challenging the ownership, validity, enforceability, or scope of Dispel’s and/or its affiliates’ intellectual property rights or other rights in the Products or Trademarks. Dispel may also terminate this Agreement for any reason, with or without cause, at any time upon sixty (60) days’ written notice to Partner.
7.3 Termination by Partner.
Partner may terminate this Agreement immediately upon written notice to Dispel if Dispel materially breaches any provision of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from Partner. Partner may also terminate this Agreement for any reason, with or without cause, at any time upon sixty (60) days’ written notice to Dispel.
7.4 Mutual Termination.
Either party may terminate this Agreement immediately upon written notice to the other party if: (a) any proceeding is commenced by or against the other party seeking relief, reorganization, or arrangement under any laws relating to insolvency or bankruptcy, and such proceeding is not dismissed within sixty (60) days; (b) the other party makes an assignment of its property or assets for the benefit of its creditors; (c) a receiver, liquidator, or trustee is appointed for the other party’s property or assets; or (d) the other party is liquidated, dissolved, or wound up.
7.5 Transition of Existing End Users.
Upon termination or expiration of this Agreement: (a) for each Product component resold by prior to any termination or expiration of this Agreement, each then-current Customer shall continue to have the right to use such Product component for the remainder of its current subscription term (with no right to renew such subscriptions), in accordance with the Customer Terms of Service, governing such subscription, and with the terms of this Agreement, provided that in no event shall such continued right to use the Products extend past twelve (12) months after the termination or expiration of this Agreement (the period that any such rights remain in effect after the termination or expiration of this Agreement, the “Wind-down Period”); (b) the parties shall promptly meet to negotiate in good faith the orderly wind-down of each party’s activities under this Agreement; and (c) each party shall continue to perform its relevant obligations under this Agreement during the Wind-down Period (but only with respect to obligations existing as of the date of termination or expiration and only to the extent that such obligations relate to Customers with active subscriptions to the Remote Access Services).
7.6 Effect of Termination.
Upon termination or expiration of this Agreement: (a) all licenses granted to Partner under this Agreement will terminate immediately; and (b) Partner will immediately: (i) cease use and resale of the Products; (ii) discontinue use of the Trademarks; (iii) discontinue statements from which it might be inferred that any relationship exists between Partner and Dispel; (iv) cease to advertise, market, promote, or solicit or procure orders for, the Products or Support Services; and (v) return the Confidential Information, the Documentation, and all related materials and copies to Dispel.
7.7 Sales to Permitted Government Customers.
If the parties have terminated or are in the process of terminating this Agreement pursuant to this Section 7 and, at such time, Partner is still actively involved in the bidding/sales process to a Permitted Government Customer due to a bid submitted prior to any notice of termination, then this Agreement shall continue to govern and remain in full force and effect only with respect to such outstanding bid/sales to such Permitted Government Customer and any resulting sales by Partner to such Permitted Government Customer. Partner shall be permitted to continue to support any such outstanding bids/sales to such Permitted Government Customer provided Partner is and remains in full compliance with this Agreement. Upon termination or conclusion of the outstanding bids/sales, then this Agreement shall terminate in accordance with this Section 7 unless otherwise agreed to by the parties in writing.
7.8 No Harm upon Termination.
Partner will not be entitled to and, to the fullest extent permitted by law, waives any statutorily prescribed or other compensation, reimbursement, or damages for loss of goodwill, clientele, prospective profits, investments, or anticipated sales, commitments, or business opportunities of any kind arising from the termination of this Agreement.
7.9 Survival of Terms.
The following sections will survive the expiration or termination of this Agreement: (a) Sections 1.7 (“Certain Restrictions.”), 2 (“Ownership.”), 5.7 (“Records and Audit Rights.”), 6 (“Warranty Disclaimer.”), 7 (“Term and Termination.”), 8 (“Relationship of the Parties.”), 9 (“Confidentiality.”), 10 (“Indemnification.”), 11 (“Limitation of Liability.”), 12 (“Miscellaneous.”), and 13 (“Definitions.”); and (b) any payment obligations of either party to the other party arising under this Agreement.
8. Relationship of the Parties.
8.1 Independent Contractors.
The relationship of Dispel and Partner is that of independent contractors. Nothing in this Agreement will create, or be construed to create, any partnership, joint venture, agency, franchise, sales representative, employment, or fiduciary relationship between the parties. Except as otherwise provided in this Agreement, neither party will have any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party. Dispel is in no manner associated with or otherwise connected with the actual performance of this Agreement on the part of Partner, nor with Partner’s employment of other persons or incurring of other expenses.
8.2 Partner’s Employees.
It is understood that Partner is solely responsible for all of its employees and agents, its labor costs and expenses arising in connection therewith, and for any and all claims, liabilities, and damages or debts of any type whatsoever that may arise on account of Partner’s activities, or those of its employees or agents, in the performance of this Agreement.
8.3 Nonexclusive Relationship.
Nothing in this Agreement will be construed as limiting Dispel’s marketing or distribution activities or its appointment of other original equipment manufacturers, dealers, distributors, resellers, licensees, or agents of any kind in any place.
9. Confidentiality.
Partner will use the Confidential Information only for purposes of exercising its rights or performing its obligations under this Agreement. Partner will hold the Confidential Information in strict confidence and will use the same degree of care that Partner uses to protect its own like information, but in no event less than a reasonable degree of care, to protect the Confidential Information from unauthorized use or dissemination. Partner will not disclose the Confidential Information to third parties without the prior written consent of Dispel and will only disclose Confidential Information to Partner’s employees who require such Confidential Information in connection with the performance of this Agreement and who are bound in writing by confidentiality obligations no less restrictive than those set forth in this Section 9. Partner agrees that any breach of this Section 9 would cause irreparable harm to Dispel for which monetary damages would not be adequate and, therefore, Partner agrees that, if Partner or its employee breaches this Section 9, Dispel will be entitled to equitable relief in addition to any other remedies it may have hereunder or at law or in equity.
10. Indemnification.
Partner will defend (at Dispel’s option), indemnify, and hold harmless Dispel, its licensors, its affiliates, and each of its and their respective members, officers, directors, agents, and employees (collectively, the “Dispel Parties”) against damages, costs, liabilities, expenses (including reasonable attorneys’ fees) and settlement amounts incurred in connection with any suit, claim or action by any third party against a Dispel Party based on: (a) Partner’s modification, use, marketing, resale, or distribution of the Products not in strict accordance with this Agreement; (b) any warranty or representation made by Partner or Partner’s agents which differ from those provided by Dispel; (c) injuries or damage to persons or property caused or claimed to have been caused by the negligent acts, errors, or omissions of Partner or Partner’s agents while in the course of performing under this Agreement; (d) any breach of Section 12.1; or (e) the infringement or misappropriation, or alleged infringement or misappropriation, of any copyright, patent, trade secret, or other intellectual property right by Partner (except to the extent such infringement or misappropriation arises from the distribution or use of the Products in compliance with the terms and conditions of this Agreement and the Customer Terms of Service). 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 Partner shall reimburse Dispel for such legal costs and attorneys’ fees promptly upon request for reimbursement. Partner may not settle any such claim without Dispel’s prior, written consent.
11. Limitation of Liability.
11.1 Consequential Damages Waiver.
TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW AND EXCEPT FOR ANY LIABILITY ARISING OUT OF BREACHES OF SECTIONS 1 OR 9 AND PARTNER’S PERFORMANCE OF ITS INDEMNITY OBLIGATIONS UNDER SECTION 1, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES, INCLUDING ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, INADVERTENT DISCLOSURE OF DATA, LOSS OF PROFITS, LOSS OF REVENUE, OR LOSS OF BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 Limitation of Liability.
TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, THE AGGREGATE LIABILITY OF DISPEL ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, INDEMNITY, OR OTHERWISE), SHALL BE LIMITED TO THE AMOUNTS RECEIVED BY DISPEL FROM PARTNER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE.
12. Miscellaneous.
12.1 Export Compliance.
Partner will comply with all applicable US, EU, and local foreign trade laws including sanctions laws. The following applies to the extent that it does not violate EU laws, particularly Art. 5 of Council Regulation (EC) No 2271/96. Taking this into account: (i) This Agreement is subject to any 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) or by any other governmental entity on the Products or any related information; (ii) Partner 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; (iii) Partner shall 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; (iv) Notwithstanding any other provision of this Agreement to the contrary, Partner will not import, export or re-export, sell, transfer, divert, or otherwise dispose of, directly or indirectly, the Products or 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.
12.2 Anti-Corruption Compliance.
This Agreement is subject to the U.S. Foreign Corrupt Practices Act (“FCPA”) and all other applicable anti-corruption laws. Prior to and during the term of this Agreement, Partner, on behalf of itself and its directors, officers, employees, reseller representatives, and agents, represents, warrants and covenants that it has complied and will comply with the FCPA and all other applicable anti-corruption laws. Partner will not take any action, or fail to take any action, that would result in Dispel violating any such laws. Partner agrees to execute the Anti-Corruption Certification of Compliance, a copy of which is attached hereto as Exhibit B, at the time of entering into this Agreement.
12.3 Insurance.
Partner will, at its own expense, maintain the following insurance coverage during the Term: (a) worker’s compensation insurance as required by applicable law; (b) employee’s liability insurance with minimum coverage of one million dollars ($1,000,000) per occurrence; (c) commercial general liability insurance covering bodily injury and property damage liability, including contractual liability, with minimum coverage of one million dollars ($1,000,000) per occurrence for bodily injury and property damage combined; and (d) professional liability insurance for errors and omissions with a minimum limit of one million dollars ($1,000,000) per claim. Nothing in this Agreement shall be deemed to preclude Partner from selecting a new insurance carrier or carriers or obtaining new or amended policies at any time, as long as the above insurance coverage is maintained. Partner will provide to Dispel copies of applicable certificates of insurance upon Dispel’s reasonable request.
12.4 Governing Law; Jurisdiction and Venue.
Notwithstanding the observation of non-negotiable rules and regulations, 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 exclusively in a federal or state court located in the City of New York, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action, or proceeding.
12.5 Government Use.
Partner acknowledges that all of the Products were developed entirely at private expense and that no part of the Products was first produced in the performance of a U.S. Government contract. Partner agrees that all of the Products and any derivatives thereof are “commercial items” as defined in 48 C.F.R. § 2.101, and if Partner is a U.S. Government agency or instrumentality or if Partner is providing all or any part of the Products or any derivatives thereof to the U.S. Government, such use, duplication, reproduction, release, modification, disclosure, or transfer of this commercial product and data is restricted in accordance with 48 C.F.R. § 12.211, 48 C.F.R. § 12.212, 48 C.F.R. § 227.7102-2 and 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.211, 48 C.F.R. § 12.212, 48 C.F.R. §§ 227.7102-1 through 227.7102-, and 48 C.F.R. §§ 227.7202-1 through 227.7202-4, as applicable, the Products are licensed to U.S. Government end users (a) only as commercial items and (b) with only those rights as are granted to all other users pursuant to this Agreement and any related agreement(s), as applicable. Accordingly, (x) Partner will have no rights in the Products except as expressly agreed to in writing by Partner and Dispel; (y) the Products may not be sold, sublicensed, or otherwise transferred by Partner to any person, company, or institution whatsoever other than as expressly permitted in this Agreement or as Dispel and Partner may otherwise agree in writing; and (z) Partner shall not remove or alter any proprietary markings on the Products. Because the Products are commercial items, Dispel and Partner agree that (1) only those mandatory Federal Acquisition Regulation (“FAR”) and FAR Supplement clauses made expressly applicable to commercial item agreements by applicable FAR and FAR Supplement prescription clause provisions and that are expressly agreed upon in writing by Dispel shall be flowed-down to Dispel and incorporated into this Agreement or any related purchase order involving shipment of the Products; (2) Dispel shall not be required to comply with the cost accounting standards or contract cost principles; and (3) nothing in this Agreement or any Order or other related purchase order involving shipment of the Products gives Partner any right to audit Dispel’s books and records.
12.6 Assignment.
This Agreement may not be assigned, in whole or part, whether voluntarily, by operation of law, or otherwise, by Partner without the prior written consent of Dispel. Subject to the preceding sentence, the rights and liabilities of the parties hereto shall bind, and inure to the benefit of, their respective assignees and successors. Any attempted assignment other than in accordance with this Section 12.6 shall be null and void.
12.7 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.
12.8 Attorneys’ Fees.
If any legal action, including an action for injunctive relief, is brought relating to this Agreement 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 and actual attorneys’ fees paid or incurred in good faith.
12.9 Severability.
If the application of any provision of this Agreement to any particular facts or circumstances is held invalid or unenforceable by 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 the other provisions of this Agreement 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.
12.10 Force Majeure.
Except for the payment of amounts due under this Agreement, neither party will be liable for any delay or failure to perform to the extent due acts of God, pandemic, earthquake, fire, flood, embargoes, utility or power outages, riots, war, and acts of civil and military authorities and other similar occurrences outside of a party’s reasonable control; provided, however, that such party gives the other party prompt written notice of the delay or failure and the reason for the delay or failure, and uses its reasonable efforts to limit the resulting delay or failure (“Force Majeure Event”). If a party is unable to perform its obligations under this Agreement as a result of a Force Majeure Event for more than thirty (30) consecutive days, the other party may terminate this Agreement upon written notice.
12.11 Construction.
The captions and section and paragraph headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement. The words “include” and “including” shall not be construed as terms of limitation and shall therefore mean “including but not limited to” and “including without limitation.”
12.12 Notices.
Any notice, request, demand, or other communication required or permitted hereunder shall be in writing, shall reference this Agreement and shall be deemed to be properly given: (a) when delivered personally; (b) seven (7) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (c) two (2) business days after deposit with a private industry express courier, with written confirmation of receipt; or (d) when transmitted by email if sent before 5:00 P.M. local time on a business day in the time zone to which it is sent, and otherwise on the next business day. All notices shall be sent to:
If partner: the address set forth in the Partner Portal if to Partner
If Dispel: Dispel, Attn: Legal, 61 Greenpoint Ave, Suite 634, Brooklyn NY 11222 USA; if by email: legal@dispel.com
or an email address designated by the receiving party and to the notice of the person executing this Agreement (or to such other (email) address or person as may be designated by a party by giving written notice to the other party pursuant to this Section 12.12).
12.13 Counterparts; Headings.
This Agreement may be executed in two or more counterparts including by digital acceptance, each of which will be deemed an original and all of which together will constitute one and the same instrument. The headings contained herein are for convenience of reference only and will not be considered as substantive parts of this Agreement.
12.14 Entire Agreement.
This Agreement (including the Cover Page and the exhibits to this Agreement, which are incorporated by reference) constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior agreements, oral or written, regarding such subject matter. This Agreement may be updated from time to time at Dispel’s sole discretion, and Partner’s continued use of the Partner Portal constitutes consent to these changes.
However, to the extent of any conflict or inconsistency between the provisions in this Agreement and any other documents or pages referenced in these Agreements, the following order of precedence will apply: (1) the terms of a seperately agreed Partner Program Agreement, (2) the terms of this Agreement, and (3) 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 will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
12.15 Use of Other Party’s Name and Logo.
Subject to 8.1, each party shall be entitled to use the other party’s name and logo in its marketing materials and on its website in a manner designated by the other party. A party that intends to use the other party’s name and logo pursuant to this Section 12.15 shall give notice to the other party describing how such name and logo will be used, and the other party shall be given an opportunity to propose alterations before such name and logo are used. Dispel gives notice that it will use the partner logo on our website in a list of other partners.
13. Definitions.
13.1 “Add-Ons”
means separately licensed hardware or software components used in conjunction with the Dispel Remote Access Services
13.2 “Confidential Information”
means the confidential or proprietary information of Dispel or its affiliates (whether or not marked or identified as confidential or proprietary), including the Pricing Guidelines, inventions (whether or not patentable), trade secrets, ideas, know-how, techniques, processes, formulas, algorithms, schematics, research, development, software design and architecture, testing procedures, design and functional specifications, problem reports and performance information, training materials, marketing materials, marketing and financial plans and data, and the terms and conditions of this Agreement. Confidential Information does not include information (other than personal data) that: (a) is or becomes publicly known through no fault of Partner; (b) is known by or in the possession of Partner prior to its receipt from Dispel as evidenced by Partner’s written records; or (c) is lawfully obtained from a third party that has no obligation of confidentiality with respect to the information.
13.3 “Customer”
means an individual or entity that purchases from Partner Remote Access Services. For the avoidance of doubt, Customer does not include any intermediaries or sublicensees pursuant to Section 1.6 involved in the sales process who are not users of the Products.
13.4 “Customer Terms of Service”
means the terms at https://legal.dispel.io/terms/customer-terms-of-service (as may be updated by Dispel from time to time).
13.5 “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.
13.6 “Dispel Direct Competitor”
means an individual or entity that sells, produces, or otherwise provides access to software defined networks, communications networks and services in virtual private clouds utilizing virtual private network technology, ‘moving target defense’ networks, or remote access products.
13.7 “Documentation”
means Dispel’s current online help resources, guides, and manuals provided by Dispel for use with the Remote Access Services.
13.8 Remote Access Services”
means (a) the provision of access and use of networked infrastructures set up by Dispel on behalf of Customer for the purposes of secure remote access; (b) any web services provided to the Customer by Dispel for account management; (c) Dispel software applications (including any object code or executable files), including any related materials and documentation therefor; and any modifications, error corrections, bug fixes, new releases, enhanced functionality, or other updates thereto that may be provided hereunder by Dispel; and (d) any Add-Ons, as applicable.
13.9 “Support Services”
means Support Tier One and Support Tier Three, together with any additional support services authorized by Dispel and purchased by Customer pursuant to Order Documentation.
13.10 “Support Tier One”
means initial configuration of the Dispel Remote Access Services, assistance with basic administrative functions, diagnosis, and correction of errors.
13.11 “Support Tier Three”
means the creation of custom deployments and assistance with systems engineering requests.
13.12 “Government Customer”
means a specified agency, department, division, branch, or instrumentality of the national and/or federal Government or other national governments of other countries, international agencies of which the national and/or federal Government or another national government is or becomes a member, and any other national and/or federal Government or national government entity authorized to purchase off of government contracts on behalf of the national and/or federal Government or a national government of another country, in each case who purchases directly or indirectly from the Partner Remote Access Services.
13.13 “Local Government Customer”
means a specified agency, department, division, branch, or instrumentality of a local government of the United States or other countries, national agencies of which such local government is or becomes a member, and any other local entity authorized to purchase off of government contracts on behalf of such local government, in each case who purchases directly or indirectly from Partner Remote Access Services.
Exhibit B Anti-Corruption Certification of Compliance
For the purposes of this Anti-Corruption Certification of Compliance:
1. “Anything of value” is defined broadly to include monetary and non-monetary payments, such as e.g. cash, a loan, gifts, travel, entertainment, or services.
2. “Dispel” means Dispel Global, Inc, a Delaware corporation.
3. “Government Official” means any officer, employee, or agent of (i) any government, at any level (national, state, provincial, or local) and any branch (executive, legislative, or judicial), (ii) any state-owned or state-controlled enterprise, (iii) any public international organization, or (iv) any political party, including a candidate for political office or political party official.
4. “Partner” means the authorized reseller of Dispel’s software and services.
Partner, on behalf of itself and each of its directors, officers, employees, reseller representatives, and agents, hereby certifies that:
a) Partner has complied and will comply with the U.S. Foreign Corrupt Practices Act, the UK Bribery Act 2010, and all other applicable anti-corruption laws.
b) Partner has not requested, accepted, offered, or given, and will not request, accept, offer, or give, directly or indirectly, any bribe, kickback, or other improper or illegal payment of anything of value to any person in connection with the Agreement.
c) Partner has not corruptly taken any action in furtherance of an offer, payment, promise to pay, or authorization of the payment of anything of value, directly or indirectly, to a Government Official or any person for the purpose of:
i. Obtaining or retaining business;
ii. Influencing any act or decision of a Government Official or any person in his or her official capacity;
iii. Inducing the Government Official or any person to do or omit to do any act in violation of his or her lawful duty;
iv. Securing any improper advantage; or
v. Inducing any Government Official or any person to use his or her position improperly to affect any act or decision of a government or government agency, department, or instrumentality.
d) Partner is not aware of (i) any request made by any person, including any Government Official, for any payment of money or anything of value prohibited by provision b. or c. of this Certification; or (ii) any other individual or company making, offering, paying, promising, or authorizing any payment of money or anything of value prohibited by provision b. or c. of this Certification in connection with the reseller agreement between Partner and Dispel.
e) Partner will immediately advise Dispel by e-mail at legal@dispel.io or in writing, at 61 Greenpoint Ave, 6th Floor, Brooklyn, NY 11222, if it fails to comply with the provisions of this Certification or otherwise becomes aware of any changes to these representations and covenants.
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