The terms of the Customer-Specific Supplement (“Customer-Specific Supplement”) below supplement and amend Customer’s Contract (as defined in our Customer Terms of Service) if Customer falls into the corresponding category of Customer. If there is any conflict between the Customer-Specific Supplement and the Contract, the applicable terms in the Customer-Specific Supplement will prevail.
Nothing in this Customer-Specific Supplement makes us a government contractor for any federal, state, local, or foreign government.
I. U.S. Government Customers
If Customer is a U.S. government or U.S. public entity (or use of the Services is for the U.S. Government), the terms of the Customer-Specific Supplement in this Section I apply.
A. Use By or For the U.S. Government. If any Services are being licensed under the terms of a proposal or agreement with the U.S. Government or on the U.S. Government’s behalf, the Services are commercial computer software and the Services are developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject to the commercial computer software license terms set forth in this Agreement as specified in 48 C.F.R 12.212 of the Federal Acquisition Regulation and its successors; or (b) if acquired by, or on behalf of, units of the Department of Defense (“DOD”), shall be subject to the commercial computer software license terms set forth in this Agreement as specified in 48 C.F.R 227.7202, Defense Federal Acquisition Regulation Supplement and its successors.
B. Indemnification, Auto-Renewal, Venue, Legal Fees: The sections in the Contract titled “Governing Law,” “Auto-renewal,” “Governing Law, Jurisdiction and Venue,” and “Customer’s Indemnification of Us” are hereby waived to the extent they are inconsistent with federal law.
C. Dispute Resolution: This Agreement shall be governed by and interpreted in accordance with the Contract Disputes Act of 1978, as amended (41 U.S.C. §§ 601-613). Failure of the parties to reach agreement on any request for equitable adjustment, claim, appeal, or action arising under or relating to this Agreement shall be a dispute to be resolved in accordance with the clause at 48 C.F.R. § 52.233-1, which is incorporated into this Agreement by reference.
D. No Endorsement: We agree that Customer’s seals, trademarks, logos, service marks, trade names, and the fact that Customer has a presence on one of our Sites and uses our Services, will not be used by us in such a manner as to state or imply that our products or services are endorsed, sponsored or recommended by Customer or by any other element of the U.S. Government, or are considered by Customer or the U.S. Government to be superior to any other products or services. Except for pages whose design and content is under the control of the Customer, or for links to or promotion of such pages, we agree not to display any Customer or government seals, trademarks, logos, service marks, and trade names on our homepage or elsewhere on one of our hosted sites unless permission to do so has been granted by Customer or by other relevant federal government authority. We may list Customer’s name in a publicly available customer list on a Site or elsewhere so long as the name is not displayed in a more prominent fashion than that of any other third party name.
II. State or Local Government Customers
This Section II applies to Customer if Customer is a state or local government, but only to the extent the Services are being used in an Authorized User’s official capacity as a state or local government official.
A. Governing Law and Jurisdiction: The sections in the Contract titled “Governing Law,” “Governing Law, Jurisdiction and Venue,” and “Customer’s Indemnification of Us” will not apply to Customer only to the extent Customer’s jurisdiction’s laws prohibit Customer from accepting the requirements in those sections.
III. Proof of Concept Customers
This Section III applies to Customers who have signed a Proof of Concept Letter of Engagement ("Letter") with Dispel. This Section III applies only to Services rendered under the Letter.
If (i) the Customer engages Services beyond the scope of the Letter or (ii) an Authorized User uses the Proof of Concept Services outside of the scope, then this Section III will not apply to those Services.
A. Providing the Services: The Services in the Proof of Concept are only provided for non-production environments.
B. Term: The sections in the Contract titled "Term" will not apply to Customer.
C. Purchases; Payments: The sections in the Contract titled "Payment" and "Refund Policy; Suspension Due to Late Payment(s)" will not apply to Customer.
IV. U.K. Customers
If Customer is subject to the laws of the United Kingdom, the terms of the Customer-Specific Supplement in this Section IV apply:
The following is added to Section 8.2 (Late Fees) of the Customer Terms: If the Customer is subject to the UK Late Payment of Commercial Debts (Interest) Act 1998 (as amended by various subsequent regulations), then the interest and compensation set in the terms of that act shall apply instead.
V. Canadian Customers
If Customer is subject to the laws of Canada, the terms of the Customer-Specific Supplement in this Section V apply:
Section 12 (Limitation of Liability) of the Customer Terms is amended to read as follows:
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY:
IN NO EVENT WILL EITHER THE CUSTOMER OR ANY MEMBER OF THE DISPEL EXTENDED FAMILY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOSS OF PROFITS, REVENUES, BUSINESS, USE, DATA, OR INTERRUPTION OF BUSINESS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW AND NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT WILL THE DISPEL EXTENDED FAMILY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE CUSTOMER TERMS OR THE USER TERMS (WHETHER IN CONTRACT OR TORT (OR EXTRACONTRACTUAL LIABILITY IN QUEBEC) OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY THE CUSTOMER TO US OR TO A RESELLER FOR THE SERVICES OR SOFTWARE IN THE TWELVE (12) MONTHS PRECEDING TO THE DATE THE CLAIM AROSE.
The limitations under this Section apply with respect to all legal theories, whether in contract, tort (or extracontractual liability in Quebec) or otherwise. The provisions of this Section allocates the risks under these Customer Terms between the parties, and the parties have relied on these limitations in determining whether to enter into these Customer Terms and the pricing for the Services and Software.