Enterprise Subscription Agreement

These terms replace the previous "Customer Terms of Service" as of 1700 EST June 17, 2024.

This Enterprise Subscription Agreement (this “Agreement”, "Customer Terms of Service" and "Terms of Service") describes Customer’s and Dispel’s rights and responsibilities in connection with the Software and Services.

1. Definitions

1.1. “Customer“ means the customer identified in the Order Form.

1.2. “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.

1.3. “Dispel” means Dispel, LLC or Dispel Global, Inc per your Order Form.

1.4. “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 Dispel’s website, that Dispel makes available to Customer in connection with the Services or Software.

1.5. “Effective Date” means the effective date identified in the Order Form.

1.6. “Enclave” means a group of virtual machines (VMs) leased from public or private cloud providers and networked together over a software-defined network.

1.7. “Order Form” means the ordering documentation, including any online orders, pursuant to which Customer purchases a subscription to the Services or Software.

1.8. "Region" means the same as Enclave.

1.9. “Reseller” means a reseller that Dispel authorizes to resell the Services or Software to Customer.

1.10. “Services” means the provision of access to Dispel’s remote access software platform, including all Updates thereto, as made available by Dispel under a subscription purchased by Customer pursuant to an Order Form.

1.11. “Software” means the remote access application software, including all Updates thereto, made available by Dispel under a subscription purchased by Customer pursuant to an Order Form.

1.12. “Updates” means any patches, revised versions, modifications, upgrades, bug fixes, new releases, enhanced functionality and other updates to the Services or Software that Dispel makes available to Customer under this Agreement.

1.13. “User” means an individual that Customer has authorized to access and use the Services or Software. Users may be Customer’s employees, contractors, or agents.

2. Rights in the Software and Services

2.1. Grant of Rights.

Subject to the terms and conditions of this Agreement, Dispel grants to Customer a limited, non-exclusive, non-transferable (except as pursuant to Section 12.2), non-sublicensable right and license to (a) install and use the Software on Customer’s servers, and (b) access and use the Services, in each case for a period identified in the applicable Order Form (“Order Term”), solely in accordance with the Documentation and for Customer’s internal business purposes.

2.2. Users.

2.2.1. Customer may authorize Users to access and use the Services and Software. Each User must have their own unique access credentials to do so. Users may not share their access credentials. Customer is responsible for the acts and omissions of each User, including any violation of the obligations or restrictions set forth in this Agreement, including the then-current Acceptable Use Policy available at https://legal.dispel.com/policies/acceptable-use-policy.

2.2.2. Customer is responsible for all login credentials, including usernames and passwords, for administrator accounts as well as the accounts of its Users. Dispel is not responsible for any damages, losses, or liability to Customer, Users, or any third party arising out of misuse of such login credentials by a third party if such information is not kept confidential by Customer or Users, or if such information is correctly provided by an unauthorized third party logging into and accessing the Services or Software.

2.2.3. Customer will promptly notify Dispel upon becoming aware of any illegal or unauthorized activity or a security breach involving a User’s account(s) or team(s), including any loss, theft, or unauthorized disclosure or use of a username, password, or account.

2.3. Restrictions.

Customer will not, and will cause its Users to not: (a) copy all or any portion of the Services, 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 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 Software to, or access the Services from, any computer other than a computer owned by Customer and used by Customer in its operations; (j) incorporate the Services or Software or any portion thereof into any other program or product; (k) allow Dispel’s direct competitors to access or use the Services or Software, except with Dispel’s prior written consent; or (l) use the Services or Software for any purpose other than in accordance with this Agreement.

2.4. Contractors.

Dispel may perform under this Agreement through its affiliated entities and contractors (“Personnel”). Dispel is responsible for all actions and omissions of its Personnel in performance of this Agreement.

2.5. Non-Dispel Products.

2.5.1. The Services and Software may allow Customer to provision certain third-party software applications (“Non-Dispel Products”) within Enclaves. Dispel may make Non-Dispel Products available to Customer, including through Dispel’s Build Resource interface accessible through the Services or Software. Dispel is not responsible for Customer’s use of the Non-Dispel Products or any consequences thereof. Dispel has no obligation to provide support for any Non-Dispel Products. Customer’s use of any Non-Dispel Products is solely subject to the terms between Customer and the applicable third-party provider.

2.5.2. If Customer enables a Non-Dispel Product for an Enclave, Customer Data (defined below) may be shared with the Non-Dispel Product’s third-party provider. Dispel is not responsible for any use, disclosure, modification or deletion of Customer Data that is transmitted to, or accessed by, a Non-Dispel Product.

3. Purchases; Payments

3.1. Payment.

Dispel will invoice Customer the fees specified in the applicable Order Form. All amounts invoiced shall be in U.S. dollars, unless otherwise expressly set forth in the Order Form. Customer will make all payments in accordance with such invoice. Payment shall be due thirty (30) days from the invoice date, unless otherwise expressly set forth in an Order Form. Any payment due or portion thereof not received by Dispel as set forth in this Section will bear an additional charge of one and one-half percent (1½%) per month from the date due until actually received, less the sum, if any, in excess of applicable state law.

3.2. Taxes.

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 Dispel’s net income. Should any payment for the Services or Software be subject to withholding tax by any government, Customer will reimburse Dispel for such withholding tax.

3.3. Reseller Purchase.

If Customer purchases a subscription for the Services, Software, or support services from a Reseller, purchasing terms applicable to such purchase, including pricing and payment terms and conditions, will be as agreed in ordering documentation between Customer and Reseller and will supersede any conflicting terms in this Section 3.

4. Support.

During the Order Term, Dispel will provide support in accordance with its then-current support policy available at https://legal.dispel.io/policies/support-policy and will make the Services Available (as defined in the SLA) in accordance with the terms available at https://legal.dispel.io/policies/support-policy (“SLA”). Customer’s sole and exclusive remedy for Dispels failure to make the Services Available in accordance with the SLA is set out in the SLA.

5. Intellectual Property Rights

5.1. General.

Dispel retains 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 Services and Software, including all modifications, enhancements, and derivative works made thereto.

5.2. Feedback.

If Customer or any of its personnel, including Users, provides any feedback or suggestions to Dispel regarding the Services or Software or any other Dispel products or services, Customer grants to Dispel 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 Customer or any of its personnel.

5.3. Open Source Software.

Certain Services and Software may incorporate or utilize open source or other source-available software (“Open Source Software”). To the extent required under licenses for this software, Dispel provides any such Open Source Software to Customer under the terms of the applicable Open Source Software license and not this Agreement. The applicable list of Open Source Software can be accessed through the Services and Software, which list may be updated from time to time. Notwithstanding anything to the contrary in this Agreement, with respect to each item of Open Source Software, to the extent there are any irreconcilable conflicts between this Agreement and any terms of the respective open source license, which the Open Source Software does not permit, such conflicting terms of this Agreement will not apply. Any fees that Dispel charges under this Agreement does not apply to any Open Source Software for which fees may not be charged under the applicable Open Source Software license. Where the terms of any Open Source Software entitle Customer to receive a copy of the source code of the Open Source Software, upon Customer’s request Dispel may either direct Customer to where Customer can obtain the source code, or make that source code available to Customer (and Dispel may charge a nominal fee for processing such request).

6. Representations, Warranties, and Disclaimers

6.1. Dispel’s Representations and Warranties.

Dispel represents and warrants that (a) the Services and Software will perform materially in accordance with the Documentation therefor, and (b) Dispel will not materially decrease the functionality of the Services or Software during an Order Term. Except as otherwise provided in the SLA, Customer’s sole and exclusive remedy for Dispel’s breach of the foregoing warranty is for Dispel to use commercially reasonable efforts to promptly correct such failure.

6.2. Other Representations and Warranties.

Each party represents and warrants that it has validly entered into this Agreement and has the legal power to do so, and that each party will comply with applicable laws in connection with this Agreement.

6.3. Provided Hardware.

6.3.1. Users must use access credentials to access and use the Services and Software. Dispel may also provide Customer with certain hardware to assist in accessing and using the Services and Software (“Provided Hardware”). 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 Customer’s Enclaves until such access credentials and/or Provided Hardware are deactivated by either Customer or Dispel (upon Customer’s request to Dispel). Customer must promptly notify Dispel of any disclosure or unauthorized use of Customer’s access credentials or if the Provided Hardware is hacked, misplaced or misappropriated. Customer is solely responsible for all use or misuse that occurs within an Enclave and any claims arising therefrom, including by any User. Dispel will not be held responsible or liable for any such use, misuse, or claims including, but not limited to, any data breaches.

6.3.2. Certain Provided Hardware may consist of standard equipment purchased by Dispel through industry suppliers of such equipment on which equipment Dispel may install its proprietary software to provide a connection to Dispel’s networks in order to provide the Services to Customer. Dispel will not responsible or liable for, nor does Dispel make any representations or warranties as to, the fitness, integrity, or security of, such standard equipment. Support for standard equipment will be limited to the standard support services provided by the manufacturer of such standard equipment.

6.4. VPN.

Certain of 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. 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. Dispel will not be responsible or liable for any losses, damages, or claims resulting from the use of such Services.

6.5. 2FA/MFA.

The Services and Software support logins using two-factor authentication (“2FA/MFA”). Dispel will not be responsible for any damages, losses, or liability to Customer, Users, or a third party if any event leading to such damages, losses, or liability would have been prevented by Customer’s or Users’ use of 2FA/MFA.

6.6. Disclaimer.

Except as otherwise expressly set out in this Agreement, the Services and Software are provided “AS IS” and Dispel disclaims all other warranties, conditions, and representations, whether express or implied, relating to the Services, Software, Provided Hardware, and Non-Dispel Products, including, without limitation, any warranties or conditions of design, merchantability, satisfactory quality fitness for a particular purpose, title or non-infringement of third party rights, or warranties arising from a course of dealing, course of performance, usage, or trade practice. Without limiting the foregoing, Dispel does not warrant 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 Dispel specifications), or be secure, accurate, complete, free of harmful code, or error free.

7. Customer Data

7.1. Rights to Customer Data.

Users may submit content or information to the Services, such as messages or files (collectively, “Customer Data”). To the extent that Dispel has access to Customer Data, Dispel 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; (d) in accordance with Customer’s instructions; or (e) otherwise in order to perform its obligations under this Agreement. If Dispel transmits, uses, or processes any Customer Data in accordance with Customer’s instructions, Customer will be solely responsible for any liability or losses arising out of Dispel performing in accordance with such instruction.

7.2. Ownership of Customer Data.

As between the parties, Customer owns all Customer Data. Customer represents and warrants that it has secured all rights in and to Customer Data as may be necessary to allow Dispel to use, share, and modify Customer Data as permitted in this Agreement and that Dispel’s interaction with Customer Data in accordance with this Agreement will not violate any applicable law.

7.3. Protecting Customer Data.

Dispel will maintain reasonable administrative, physical, and technical safeguards relating to Customer Data, including measures aimed at preventing unauthorized access, use, modification, deletion and disclosure of Customer Data by Dispel’s personnel. Before sharing Customer Data with any of its third-party service providers, Dispel will ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of Customer Data and preventing unauthorized access. Customer bears sole responsibility for adequate security, protection and backup of Customer Data when in Customer’s possession or control. Dispel is not responsible for Non-Dispel Products’ interaction with or disclosure of Customer Data.

7.4. Data Portability and Deletion.

Before an Enclave is deprovisioned, Customer may have the ability to export or share certain Customer Data from the Services; provided, however, 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, Dispel will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in Dispel’s systems or otherwise in its possession or under its control. When components within an Enclave cycle (which they do by design as a normal function of the Services) all data or other information on those particular components will be deleted. It will be solely Customer’s responsibility to back up 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, regardless of whether such data has been backed up by Customer.

8. Confidential Information

8.1. Defined.

Each party (“Disclosing Party”) may disclose Confidential Information to the other party (“Receiving Party”) in connection with this Agreement. Dispel’s Confidential Information includes the Services, Software, Order Forms, as well as all of Dispel’s non-public business, product, technology and marketing information. Customer’s Confidential Information includes Customer Data. In addition, materials labelled ‘Confidential” by the Disclosing Party shall be treated as confidential by the Receiving Party. 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.

8.2. 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 this Agreement; and (b) not use or disclose any Confidential Information of the Disclosing Party other than to perform its obligations or exercise its rights under this Agreement. 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 this Agreement.

8.3. 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.

8.4. Equitable Relief.

Customer acknowledges and agrees that, due to the unique nature of Dispel’s Confidential Information, there can be no adequate remedy at law to compensate Dispel for the breach of any provision of this Section 8, any such breach will allow Customer or third parties to compete unfairly with Dispel resulting in irreparable harm to Dispel that would be difficult to measure, and, therefore, upon any such breach or threat thereof, Dispel will be entitled to injunctive and other appropriate equitable relief (without the necessity of proving actual damages), in addition to whatever remedies Dispel may have at law, without the necessity of posting any bond or other security.

9. Term; Termination

9.1. Term.

This Agreement shall commence on the Effective Date and shall remain effective until all subscriptions and licenses ordered hereunder have expired or been terminated or until this Agreement has been terminated in accordance with this Section 9. Termination of this Agreement will terminate all subscriptions and all Order Forms.

9.2. Auto-Renewal.

Unless otherwise provided in an Order Form, subscriptions for the Services and Software purchased 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 at least thirty (30) 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.

9.3. Termination for Cause.

Either party may terminate this Agreement (a) if the other party fails to cure any material breach of this Agreement within thirty (30) days of receipt of written notice thereof from the non-breaching party (for the avoidance of doubt, failure to pay any amounts due is a material breach of this Agreement), or (b) if the other party becomes insolvent, becomes subject to a petition in bankruptcy that is not dismissed within thirty (30) days, 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. Dispel may terminate this Agreement immediately on notice to Customer if Dispel reasonably believes that the Services or Software are being used or have been used by Customer or Users in violation of applicable law.

9.4. Effect of Termination.

Upon the expiration or termination of this Agreement, the rights granted to Customer hereunder will terminate. Within five (5) days after any termination or expiration of this Agreement, Customer will return to Dispel or destroy (at Dispel’s option) all of Dispel’s Confidential Information in its possession or control, and Dispel will return to Customer or destroy (at Customer’s option) all of Customer’s Confidential Information in its possession or control. If Customer purchased the subscription directly from Dispel (and not from a Reseller), (a) upon any termination of this Agreement by Customer for cause in accordance with Section 9.3, Dispel will refund Customer a pro-rata portion of any prepaid fees covering the remainder of the Order Term after the effective date of termination, and (b) upon any termination of this Agreement by Dispel for cause in accordance with Section 9.3, Customer will pay Dispel any unpaid fees for the Services and Software for the remainder of the Order Term. In no event will any termination relieve Customer of the obligation to pay any fees payable to Dispel for the period prior to the effective date of termination.

9.5. Survival.

The following Sections will survive any termination or expiration of this Agreement: 2.3, 3, 5, 6.6, 8, 9.4, 9.5, 10, and 12.11.

10. Limitation of Liability

10.1. To the extent allowed by applicable law and notwithstanding any failure of essential purpose of any limited remedy or limitation of liability:

10.1.1. In no event will either Customer or Dispel or its Personnel 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.

10.1.2. Notwithstanding anything in this Agreement to the contrary, in no event will either Customer’s or Dispel’s aggregate liability arising out of or related to this Agreement (whether in contract or tort or under any other theory of liability) exceed the total amount paid or payable by Customer to Dispel or to Reseller (as applicable) in connection with this Agreement in the twelve (12) months preceding the date the claim arose.

10.2. The limitations under this Section 10 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 allocate the risks under this Agreement between the parties, and the parties have relied on these limitations in determining whether to enter into this Agreement and the pricing for the Services and Software.

11. Indemnification

11.1. Dispel’s Indemnification Obligations.

Dispel shall defend, indemnify, and hold Customer harmless from and against losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (including attorneys’ fees) (“Losses”) incurred by Customer as a result of any claims or actions that are brought by a third party (“Claims”) as a result of: (a) any breach by Dispel of its representations and warranties under this Agreement; or (b) an allegation that Customer’s access or use of the Services or Software in accordance with this Agreement infringe the U.S. intellectual property rights of any third party.

11.2. Customer’s Indemnification Obligations.

Customer shall defend, indemnify, and hold Dispel and its Personnel harmless from and against all Losses incurred by Dispel and its Personnel as a result of any Claims as a result of: (a) Customer’s or User’s use of, or activities in connection with, the Services or Software (provided that such Claim is not a result of Dispel’s negligence or more culpable conduct); (b) any products, applications, services, photographs, graphics, images, videos, audio, text, data, content, and other materials that 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 Customer or a User of this Agreement; (d) any violation, or alleged violation, by 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 Customer or a User of any applicable law or regulation, whether in the United States or anywhere else in the world.

11.3. Indemnification Procedure.

Each party will notify the other party of any Claim for which such party seeks indemnification or defense under this Agreement (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 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.

11.4. IP Infringement Exceptions.

Notwithstanding anything to the contrary in Section 11.1, Dispel will not be required to indemnify, defend, or hold harmless Customer in the event of a Claim 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 or on behalf of Customer (other than by Dispel); or (b) use of the Services or Software in a manner inconsistent with the Documentation or this Agreement (collectively, the “IP Infringement Exceptions”). If the Services or Software become (or in Dispel’s reasonable opinion are likely to become) the subject of an infringement claim or action, Dispel will have the right, at Dispel’s sole option and expense, to obtain for 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, Dispel may terminate this Agreement by written notice to Customer and provide a pro-rata refund to Customer of pre-paid fees covering the remainder of the Order Term after termination of this Agreement (excluding any fees for cloud services pre-paid by Dispel in connection with the order).

12. General Provisions

12.1. Export Control.

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. 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. 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, 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.

12.2. Assignment.

Neither party may assign or otherwise transfer this Agreement without the other party’s prior written consent, provided that either party may, without the other party’s prior written consent, assign or transfer this Agreement in the event of a change of control of such party or in the event of the sale of substantially all of such party’s assets or business to a successor (“Change of Control Transaction”), provided that the assignment is not in violation of any export or import laws. 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 and are binding on the parties and their successors and assigns. If Customer undergoes a Change of Control Transaction, Customer will notify Dispel promptly after such transaction closes (such notice to include the identify of the acquiror) and Dispel will have the right to terminate this Agreement with immediate effect within thirty (30) days of receiving such notice. Any purported assignment, transfer, or delegation in violation of this paragraph will be void and of no effect, and a material breach of this Agreement.

Dispel 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. Customer shall cooperate with Dispel in providing any reasonable information requested by Dispel to fulfill its 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 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.

12.4. Attorneys’ Fees.

If any legal action, including, without limitation, an action for arbitration or 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, 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.

12.5. Publicity.

Customer grants Dispel the right to use Customer’s company name, logo, brand names, and brand logos as a reference for marketing or promotional purposes on Dispel’s website and in its other public or private communications with Dispel’s existing or potential customers, subject to Customer’s standard trademark usage guidelines as provided to Dispel from time-to-time or made readily available on Customer’s website.

12.6. Application of Consumer Law.

The 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, 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 this Agreement will restrict, exclude or modify any statutory warranties, guarantees, rights or remedies that Customer may have, and Dispel’s liability is limited (at Dispel’s option) to the replacement, repair or resupply of the Services and Software or the pro-rata refund to Customer of pre-paid fees covering the remainder of the term after termination of this Agreement.

12.7. Force Majeure.

Neither Dispel nor Customer will be liable for any failure to perform any of its obligations under this Agreement (except for payment obligations) due to unforeseen circumstances or causes beyond the party’s reasonable control, which may include acts of God, riot, 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.

12.8. Waiver.

The waiver by either party of a breach of, or a default under, any provision of this Agreement, 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 this Agreement, 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.

12.9. Severability.

If the application of any provision of this Agreement 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 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. Relationship of the Parties.

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

12.11. Governing Law, Jurisdiction and Venue.

This Agreement is to be construed in accordance with, and governed by, the internal laws of the State of New York without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of New York to the rights and duties of the parties. Any legal suit, action, or proceeding arising out of or relating to this Agreement 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.

12.12. Notices.

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

12.13. Entire Agreement.

This Agreement, including all documents referenced herein, and any proof of concept agreement, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. As our business evolves Dispel may update these terms from time-to-time, provided however that we shall not reduce the quality provided in this document of the Service. You must agree to our updated terms in order to continue using our Products and Services and you agree by your continued use of our Products and Services to updated terms. In the event of any conflict or inconsistency between the provisions in this Agreement and any other documents or pages referenced in this Agreement, the following order of precedence will apply in the following order: (1) the terms of any Order Form (if any), (2) the terms of any Proof of Concept Letter of Engagement (if any), (3) Customer terms if mutually signed, and (4) this Agreement. 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 this Agreement.

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