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End User License Agreement

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End User License Agreement

Last Updated: December 9, 2015

IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE ACCESSING OR USING THE DISPEL SERVICES.

This End User License Agreement (this “EULA”) is between you and, if applicable, the entity that you represent (collectively, “you”) and Dispel LLC (“Dispel” or “we”). You must read all of the terms and conditions of this EULA. This EULA governs your use of the Dispel Services (defined below). By accessing, using or registering for any Dispel Service, you are agreeing to be bound by this EULA.

In addition to the terms and conditions of this EULA, the Dispel Services are also subject to the terms and conditions of the Dispel Terms of Use, currently available at https://dispel.io/legal/terms-of-use, as updated by Dispel from time to time. The Dispel Terms of Use are hereby incorporated into this EULA by reference. PLEASE NOTE THAT THE DISPEL TERMS OF USE INCLUDES A BINDING ARBITRATION CLAUSE, IN ADDITION TO DISCLAIMERS OF WARRANTY AND LIMITATIONS OF LIABILITY, THAT ARE APPLICABLE TO THIS EULA.

Dispel may modify this EULA at any time and in its sole discretion. If we make changes to this EULA, don’t worry, we will provide notice of any changes, such as by sending you a notification, posting a notice on or through the Dispel Services, or updating the “Last Updated” date above. Your use of the Dispel Services following any revisions to this EULA will confirm your acceptance of the revised EULA. If you do not agree to any changes made to this EULA, you may not use the Dispel Services. Any such changes will not apply to any dispute between you and us arising prior to the date on which we posted the revised EULA incorporating such changes, or otherwise notified you of such changes.

1. Definitions

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

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

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

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

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

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

2. Rights in the Dispel Services

2.1 Grant of Rights.

Subject to your strict compliance with the terms of this EULA, Dispel hereby grants you a non-exclusive, non-transferable, non-sublicensable right and license to use the Dispel Services (excluding Open Source Software) solely for your personal use or in your internal business operations. Your right to use the Dispel Services (excluding Open Source Software) is strictly limited to the quantities licensed to you by Dispel via the subscription plans or purchased separately on the Dispel website. Dispel hereby reserves and retains, as further set forth in Section 5.1 below, all right, title and interest in, and ownership of, the Dispel Services (excluding Open Source Software). You are responsible for all use of the Dispel Services licensed to you by Dispel hereunder.

2.2 Third Party and Open Source Software.

The Dispel Services may contain certain Open Source Software. Such Open Source Software is subject to the terms and conditions of the respective open source license agreement (“Open Source Licenses”), and no rights with respect to such Open Source Software are granted under this EULA. Please refer to documents provided to you along with the Documentation or at https://dispel.io/legal/open-source for a copy of the Open Source Licenses. This list of Open Source Licenses may be updated by Dispel from time to time. You acknowledge and agree to the terms and conditions in each such Open Source License and that you are solely responsible for complying with such terms and conditions. Notwithstanding anything to the contrary in this EULA, with respect to each item of Open Source Software, to the extent there are any irreconcilable conflicts between any terms of this EULA and any terms of the respective Open Source License, which the Open Source License does not permit, such conflicting terms of this EULA will not apply. Any fees charged by Dispel in connection with the Dispel Services do not apply to any Open Source Software for which fees may not be charged under the applicable Open Source License. Where the terms of any specific Open Source License entitle you to the source code of the respective Open Source Software, upon your request, Dispel may either make that source code available to you (a nominal fee may be charged by Dispel for processing such request) or direct you to where you can obtain that source code.

2.3 Restrictions.

You are hereby restricted from: (a) directly or indirectly selling, leasing, renting, redistributing, assigning (except as expressly permitted in this EULA) or transferring the Dispel Services, or any rights therein, to any third party; (b) modifying, translating, reverse engineering, decompiling, disassembling, creating derivative works of, copying, sublicensing or distributing the Dispel Services (except to the extent this restriction is expressly prohibited by applicable law, or the applicable Open Source Licenses solely with respect to the respective Open Source Software governed thereby, and then only upon advanced written notice to Dispel); (c) using the Dispel Services for the benefit of any third party (e.g., in an ASP, outsourcing or service bureau relationship) or in any way other than in its intended manner; (d) removing, altering or obscuring any proprietary notice, labels or marks on the Dispel Services; (e) disabling or circumventing any access control or related device, process or procedure present within the Dispel Services; and (f) using the Dispel Services in quantities in excess of those (1) for which you have purchased a license or (2) covered under a subscription plan you have purchased. The rights granted to you in Section 2.1 are subject to and contingent on your compliance with the restrictions set forth in this Section 2.3.

3. Feedback

You may provide written and verbal feedback regarding the Dispel Services, including, without, limitation, feedback regarding: (a) the amount, extent and nature of utilization of the Dispel Services; (b) any errors or difficulties discovered with respect thereto; (c) the characteristic conditions and symptoms of such errors and difficulties with sufficient detail to enable us to recreate such errors and difficulties; and (d) all results and reports related to your testing and evaluation of the Dispel Services (collectively, the “Feedback”). Additionally, Dispel may collect aggregated, statistical, diagnostic and related data derived from the operation of the Dispel Services, including in connection with third-party software (“Diagnostic Data”). All Feedback and Diagnostic Data shall be the sole property of Dispel. Dispel shall have the right, at its sole discretion, to use and publicize freely all Feedback and Diagnostic Data and such rights shall not require your consent in any way. If Feedback and Diagnostic Data is made publically available, any data that identifies specific users will be removed before such publication.

4. Support

Dispel may, but is not obligated to, support the Dispel Services by providing Updates to the Dispel Services. In the event that Dispel, in its sole discretion, supplies any Update to you, such Update shall be deemed a Dispel Service hereunder and shall be subject to this EULA.

5. Proprietary Rights & Information

5.1 Proprietary Rights.

As between you and Dispel, 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 thereof, that you may have under any applicable law or any applicable legal theory in and to the Dispel Services and Proprietary Information (as defined below) and any portion thereof, including, without limitation, any copy or Derivative Work of the Dispel Services. You agree to take any action reasonably requested by Dispel to evidence, maintain, enforce or defend the foregoing. You shall not take any action to jeopardize, limit or interfere in any manner with our ownership of and rights with respect to the Dispel Service, or any Derivative Work. You shall have only those rights in or to the Dispel Services expressly granted to you under this EULA.

5.2 Proprietary Information.

You acknowledge that, in the course of using the Dispel Services and exercising your rights hereunder, you may obtain confidential information relating to Dispel and the Dispel Services, including, without limitation, this EULA, the Feedback, the Dispel Services (including any and all Derivative Works and Updates thereto), 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 (“Proprietary Information”). The Proprietary Information shall, as between you and Dispel, belong solely to Dispel.

5.3 Use and Disclosure Restrictions.

You hereby acknowledge and agree that the Dispel Services constitute and contain valuable Proprietary Information and trade secrets of Dispel, and embody substantial creative efforts and confidential information, ideas and expressions. You agree (a) to protect Dispel’s Proprietary Information from unauthorized dissemination and use; (b) to use Dispel’s Proprietary Information only for the performance of your obligations and in connection with the exercise of your rights hereunder; (c) without Dispel’s prior written consent, not to disclose or otherwise provide to any third party or any person other than your employees who are aware of the confidentiality obligations imposed by this Section 5 and have entered into written confidentiality agreements with you which require such individuals to comply with confidentiality obligations no less restrictive than the requirements of this Section 5, any Proprietary Information, including any part or parts thereof; (d) to undertake whatever action is necessary (or authorize Dispel to do so in your name) to prevent or remedy any breach of your confidentiality obligations herein set forth or any other unauthorized use or disclosure of any Proprietary Information by your current or former employees, agents or contractors; and (e) not to remove or destroy any proprietary or confidential legends or markings placed upon or contained within the Dispel Services or any other Proprietary Information provided to you by Dispel.

5.4 Exclusions.

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

5.5 Equitable Relief.

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

6. Purchases; Payments

6.1 Products.

All product and service features are subject to change at any time without notice. By placing an order, you represent that you will use the ordered products or services in a lawful manner. Dispel may limit the available quantity of or discontinue any product or service, including the Dispel Services; not recognize, or impose conditions on the recognition of, any coupon or similar promotions; disallow any user from making any purchase; and/or refuse to provide any user with any product or service, including any Dispel Service. You agree that if you purchase any product or service from us, you will not distribute, transfer, license, sublicense or resell such product or service unless we have provided our prior written consent to do so.

6.2 Orders.

All orders are subject to our acceptance. Your receipt of an order confirmation does not signify our acceptance of your order. We reserve the right at any time after receipt of your order to accept or decline it for any or no reason and without liability to you or anyone else. In the event a product or service is listed at an incorrect price due to a typographical or other error, we shall have the right to refuse or cancel any orders for products or services listed at the incorrect price, whether or not the order has been confirmed. Prices are in U.S. dollars and are subject to change. We may require verification of information prior to the acceptance and/or fulfillment of any order.

6.3 Payments; Payment Cards.

You agree to pay Dispel all fees in U.S. Dollars incurred by you or on your behalf that are due and owing for the Dispel Services. If any authority imposes a duty, tax or similar levy (other than taxes based on Dispel’s income), you agree to pay, or to promptly reimburse Dispel, all such amounts. You agree that the information you provide to Dispel in connection with the payment for the Dispel Services may be shared with Dispel’s payment partners to facilitate your payment of the applicable fees. You represent and warrant that you have the right to use any payment card utilized in connection with such transaction.

6.4 Subscription Plans; Cancellations.

Under our subscription plans, the credit card you have provided to us will be charged the subscription fee then in effect plus applicable taxes for the upcoming month’s subscription on a recurring monthly basis based on the date you sign up for a Dispel account, until you cancel your subscription. To cancel, go to your Billing, the Plans page and click on “Suspend my plan.” To avoid being charged for the next month, you must cancel at least one day before the next monthly payment is due. If you cancel, your subscription will continue until the end of your current paid period or credits.

6.5 Overages; Downgrades; Upgrades.

If you authorize Dispel to continue charging your credit card for any overages in excess of your subscribed usage, we will charge the credit card you have provided to us in $10 increments and your additional usage deducted against such increments. Any overage funds remaining in your account at the end of your subscription month will be credited towards the following month’s set subscription charge. If you choose not to authorize Dispel to charge your credit card for any overages in excess of your subscribed usage, then the Dispel Services will stop once you have reached your monthly subscribed limits of usage. Any downgrades to your subscription account will be effective for the following month’s subscription. Any upgrades to your subscription plan will be applied pro rata based on the number of days remaining in such month from the date you upgrade your Dispel account unless Dispel determines, in its reasonable judgment, that such adjustment would not be equitable based on usage and days remaining in the month.

6.6 Payment Terms.

If you are not on a subscription plan, you will be invoiced by Dispel on a monthly basis or as otherwise agreed between you and Dispel. All Dispel invoices are payable in accordance with the terms stated on such invoice. Any payment due or portion thereof not received by Dispel as set forth in this Section 6 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.

6.7 Free Trials.

If your order is subject to a free trial period, you will submit your credit card information when you sign up. An authorization will be performed on your credit card to ensure that it is valid and in good standing. The authorization amount may count against your credit limit; however, we will not bill you the monthly subscription fee until the free trial period has ended. To avoid being charged, you must cancel before the end of the free trial period. Please allow up to one (1) month for reversal of the authorization fee. To cancel, you must notify us by 5 P.M. Eastern Standard Time the day before your free trial ends by signing into your account and clicking on the “Suspend my plan” button that is located on the “Plans” tab under the “Billing” page. Limit: one (1) free trial offer per person.

6.8 No Refunds; Suspension.

We do not issue refunds for any amounts paid. In addition to its right to terminate this EULA as set forth in Section 7 below, Dispel may, at its sole discretion, suspend your access to and use of the Dispel Services in the event you fail to timely pay all outstanding charges and past due invoices.

7. Termination

7.1 Termination.

Dispel may terminate this EULA (a) if you fail to cure any breach of this EULA within thirty (30) days of receipt of written notice thereof; or (b) immediately upon written notice if you become insolvent, become subject to a petition in bankruptcy filed by or against you that is not dismissed within thirty (30) days, are placed under the control of a receiver, liquidator or committee of creditors, or cease to function as a going concern or to conduct your business in the normal course.

7.2 Effect of Termination.

Upon termination of this EULA, you will uninstall all of the Dispel Services, return to Dispel all Proprietary Information, and will deliver to Dispel all copies and extracts of the foregoing. The provisions of Sections 2.3, 3, 4, 5, 6, 7 and 8 of this EULA, and all terms and conditions of the Dispel Terms of Use incorporated into this EULA (excluding any rights granted to you under such terms and conditions, if any), will survive the termination of this EULA. Termination of the rights granted to you under this EULA will not act as a waiver of any breach of this EULA and will not act as a release from any liability for breach of your obligations hereunder.

8. General Provisions

You agree to comply with all applicable laws. Without limiting the foregoing, you agree to comply with all U.S. export laws and applicable import laws of your locality (if you are not located in the United States), and you agree not to export any Dispel Services without first obtaining all required authorizations or licenses. If any Dispel 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 Dispel Services are commercial computer software and the Dispel 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 EULA 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 EULA as specified in 48 C.F.R 227.7202, Defense Federal Acquisition Regulation Supplement and its successors.

8.2 Attorneys’ Fees.

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