Esper.io, Inc. (“Esper,” “we,” “our,” or “us”) is the owner and operator of a certain software-as-a-service device security platform (“Platform”), as well as certain software agents and an operating system (such software agents and operating system, individually and collectively, “Agent(s)”) that, when installed on a customer’s device, facilitate use of the Platform (the Platform and Agents are collectively referred to herein as the “Solution”). The customer (“Customer,” “you,” or “your”) listed on one or more ordering documents (each an “Order Form”) or in a Statement of Work (“SOW”) executed by the parties and referencing these Terms of Service desires to purchase a subscription to the Solution and/or procure Professional Services from Esper. Business terms related to Customer’s subscription to the Solution will be contained in the applicable Order Form. Customer’s subscription to and use of the Solution and any Deliverables (as defined below) will be governed by these Terms of Service (including any attachments and other documents referenced herein) together with the applicable Order Form(s) and the SOW, if any, executed by the parties that specifically references or is entered into in connection with these Terms of Service and/or the applicable Order Form(s) (collectively, the “Agreement”).
BY EXECUTING AN ESPER ORDER FORM OR SOW THAT REFERENCES THESE TERMS OF SERVICE OR OTHERWISE INDICATING YOUR ACCEPTANCE OF THESE TERMS OF SERVICE, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS OF SERVICE, YOU AGREE TO THESE TERMS OF SERVICE AND ARE BOUND BY THESE TERMS OF SERVICE. IF YOU ARE AN INDIVIDUAL ENTERING INTO THESE TERMS OF SERVICE ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, (A) YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS OF SERVICE, AND (B) YOU AGREE, ON BEHALF OF SUCH ENTITY, TO THESE TERMS OF SERVICE. IF YOU DO NOT HAVE FULL LEGAL AUTHORITY TO BIND SUCH ENTITY OR DO NOT ACCEPT ALL THE TERMS AND CONDITIONS CONTAINED HEREIN, DO NOT EXECUTE AN ESPER ORDER FORM OR SOW OR OTHERWISE INDICATE YOUR ACCEPTANCE OF THESE TERMS OF SERVICE.
- The Solution.
- 1.1 License. Subject to the terms and conditions of the Agreement and as specified in the applicable Order Form, (a) Customer shall have the non-exclusive, non-sublicensable, non-transferable, limited right to access and use, and to permit Authorized Users to access and use, the Platform solely for its own internal business purposes and in accordance with the Agreement and the applicable Order Form(s), and (b) Customer is granted a non-exclusive, non-sublicensable (except as expressly permitted in Section 1.2 below), non-transferable, limited license for Customer and its Authorized Users to download, install, and use the Agents (i) on Customer’s Devices solely as necessary to use the Platform or (ii) on Customer’s Devices to use the Agents apart from the Platform, each in accordance with the Agreement and the applicable Order Form(s). Customer may not resell the Solution or, except as expressly set forth above, sublicense any portion of the Solution. The rights granted in this section (A) are granted solely for the duration of the applicable Subscription Period, (B) are granted solely with respect to the variant(s) of the Agent specified in the “Description” column on the applicable Order Form(s) (the “Licensed Variants”), as such variant(s) are further described at https://www.esper.io/pricing, and (C) may be exercised solely with respect to the aggregate number of Devices specified in the “Quantity” column on the applicable Order Form(s) where the “License Date” specified on the Order Form has already occurred (the “Licensed Devices”). For the avoidance of doubt, Customer and the Users (as defined below) do not have any right or license to use variants of the Agent other than the Licensed Variants; if Customer or any User downloads, installs, or uses variants of the Agents other than the Licensed Variants, then Customer must bring such usage in compliance with the applicable Order Form(s) within one (1) month of the earlier of (I) Customer’s or any User’s initial use of such unlicensed variants, or (II) Customer having been informed by Esper of such unlicensed use, or Customer shall be deemed to have purchased a license to such additional variants for such past use and the remainder of Customer’s Subscription Period.
- 1.2. Users and Devices. Subject to the terms of Section 1.1, Customer’s employees and contractors working for the benefit of and authorized by Customer (each an “Authorized User”) may download, install, and use the Licensed Variants of the Agent on devices that are owned or controlled by you (“Customer Device(s)”). Customer may also use the Platform to monitor the devices (“Authorized Customer Device(s)” and together with the Customer Devices, “Devices”) owned or controlled by its customers (“Authorized Customer Users”) as permitted by such customers. Collectively, the Authorized Users and the Authorized Customer Users shall be “Users”. While only Customer and its Authorized Users may use and access the Platform, subject to the terms of Section 1.1, Esper grants Customer the right to grant a license to its Authorized Customer Users to download, install, and run the Licensed Variants of the Agent on Authorized Customer Devices. Customer is responsible for (a) managing its and its Users’ access to the Solution as permitted herein, (b) ensuring that all Users comply with all terms and conditions of the Agreement and that the terms of Customer’s agreement with each User as it relates to use of the Solution are consistent with the Agreement, (c) providing all necessary notices to Users and obtaining all rights, permissions and consents from Users and other Customer personnel or contractors that are necessary to exercise the rights and licenses granted under the Agreement, and (d) managing and maintaining the confidentiality of all Users’ login credentials, regardless of whether such User is an administrator or otherwise. Customer is responsible for all resulting damages, losses, or liability if the confidentiality of usernames and passwords is not maintained by Customer or its Users, including for actions taken on the Solution by unauthorized third-parties logging into and accessing the Solution through Users’ accounts. Customer will be deemed to have taken any action that it permits, assists, or facilitates any person or entity to take related to the Agreement and access to or use of the Solution and is liable for Users’ acts and omissions. If Customer becomes aware of any violation by any User, Customer will immediately suspend that User’s access to the Solution.
- 1.3 Licensed Devices. You agree to only allow Users to download, install, and use the Agents on the number of Licensed Devices you purchased and paid for as part of your subscription under the applicable Order Form. A Registered Device count is performed on or about the end of each calendar month to determine compliance. A “Registered Device” shall mean the unique number of Devices registered with the Platform during each calendar month.
- (a) Overages. Should the number of Registered Devices exceed the number of Licensed Devices in any calendar month (such circumstance, an “Overage”), you agree to pay for each additional Registered Device at the most recent Device rate specified in the “Sales Price” column in the applicable Order Form or if not specified in the applicable Order Form, Esper’s then-prevailing per Device rate (“Overage Fees”). If the Billing Period for your subscription is designated as “Annual Prepaid” in the applicable Order Form, then your Overage shall automatically be deemed to be an upgrade to your subscription whereby the number of Licensed Devices are increased accordingly for that month and the remainder of your Subscription Period; you will thereafter receive an invoice for, and agree to pay, the incremental Device fees associated with such upgrade for the month in which the Overage occurred plus the remaining Subscription Period. Alternatively, if the Billing Period for your subscription is designated as “Monthly” in the applicable Order Form, then you’ll be invoiced for, and agree to pay, Overage Fees only for those months, if any, in which you have an Overage (an automatic increase to the number of your Licensed Devices shall not occur); any Overage Fees incurred in connection with a “Monthly” pay subscription will typically be reflected on the next regularly-issued invoice. Payment for any Overage Fees shall be due pursuant to Section 3.3.
By way of example only, if you purchase 100 Licensed Devices as part of your subscription and have 95 Registered Devices in a particular month, you will not incur any Overage Fees for such month. Alternatively, if you have an Annual Prepaid subscription, purchase 100 Licensed Devices and have 120 Registered Devices in a particular month, your Overage will automatically be deemed an upgrade to the number of Licensed Devices for that month plus the remainder of your Subscription Period and you’ll receive an invoice for the additional 20 Licensed Devices for the month in which the Overage occurred plus the remainder of such Subscription Period.
- (b) Upgrades. Should you wish to proactively increase the number of Licensed Devices during your Subscription Period, you may do so by entering into a new Order Form with Esper. Any incremental Device fees associated with such upgrade will be charged to you for the remaining Subscription Period on a pro-rata basis for subscriptions with a Billing Period of Annual Prepaid and on a monthly basis for subscriptions with a Billing Period of Monthly; you will be invoiced for, and agree to pay, the incremental Device fees associated with such upgrade pursuant to the applicable Order Form or if not stated there, then in accordance with Section 3.3. The license term for such additional Licensed Devices will co-terminate with the end of the then-current Subscription Period and will thereafter renew pursuant to Section 3.6. Your Fees in any future Subscription Periods will reflect any such upgrades.
- (c) Downgrades. You may not downgrade the number of your Licensed Devices during your Subscription Period. If you desire to downgrade the number of your Licensed Devices for a subsequent Subscription Period, you must provide Esper with written notice thereof at least thirty (30) days prior to the end of the then-current Subscription Period.
- 1.4. Updates and Third Party Software. From time to time, Esper may implement or make available error corrections, bug fixes, features or modified functionality to the Solution at no additional cost to Customer (collectively, “Updates”). You are granted the right to use, as part of the Solution, such Updates in accordance with the terms of Section 1.1 as and when they are made generally available by Esper; provided, in no event shall the foregoing grant you any right or license to use variants of the Agent other than the Licensed Variants. You agree to promptly accept and implement, and require your Users to promptly accept and implement, all Updates necessary for the proper function and security of the Solution. Esper is not responsible for performance, security, availability or other issues or liabilities arising out of or resulting from your or any User’s failure to promptly implement any Update. From time to time, we may also offer new features, functionality, modules, or services (“New Services”) that are not included in the subscription you purchased, and you may have the opportunity to purchase subscriptions to such New Services but are not required to do so. The software comprising the Solution may contain third party or open source software (“Third Party Software”), which such software, if any, is not included in the definition of Solution and instead is licensed to Customer pursuant to the third party licenses that accompany such software. We will provide attributions and terms relating to the Third Party Software along with the applicable open source code, if any, as required.
- 1.5 Customer Data. Any operating system data or information of each Device that is collected by the Solution (e.g., the apps on each Device and the battery life of each Device), or materials, data or information that you or Users provide to us in connection with your use of the Solution will be considered “Customer Data”. Except for Esper’s obligations of confidentiality and data security hereunder, Customer is solely responsible for any Customer Data that Customer or any User submits or otherwise makes available through the Solution. Customer shall not, and shall ensure its Users do not, submit or otherwise make available to Esper any Customer Data that includes any personally identifiable information or otherwise permits the identity of an individual to be directly or indirectly inferred from such data, including without limitation a social security number, passport number, driver’s license number, or similar identifier, credit card or debit card number, or any other information which may be subject to specific data privacy and security laws. We do not make any representations as to the adequacy of the Solution to process the Customer Data in compliance with laws specifically governing the foregoing types of data or to satisfy any legal or compliance requirements which may apply to your Customer Data.
- 1.6 Support. Esper will provide you with level 1 technical support for the Solution via email during Esper’s normal business hours, excluding holidays (“Support Services”).
If Esper will provide you with professional services, whether related to your license to the Solution or otherwise (“Professional Services”), such services will be described in an SOW executed by the parties. If Esper will furnish deliverables (“Deliverables”) as part of its provision of the Professional Services, such Deliverables will be described in the applicable SOW. The Deliverables are owned by Esper in accordance with the terms of Section 5.1 below and Customer hereby makes all assignments necessary to accomplish such ownership. If the Professional Services are being provided by Esper in relation to your license to the Solution, then the Deliverables will become part of the Solution for purposes of the Agreement and you are granted the right to use, as part of the Solution, such Deliverables in accordance with the terms of Section 1.1. If the Professional Services are being provided by Esper unrelated to any license to the Solution, then subject to the terms and conditions of the Agreement, (a) you shall have the non-exclusive, non-sublicensable, non-transferable, limited right to access and use the Deliverables solely in accordance with the Agreement and the applicable SOW.
Customer agrees that it will not, and will not allow Users or third parties, to directly or indirectly (a) modify, translate, copy or create derivative works based on the Solution or Deliverables, (b) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, non-public APIs or underlying ideas or algorithms of the Solution or Deliverables, except as and only to the extent this restriction is prohibited by law, (c) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Solution or Deliverables available to any third party, (d) remove or obscure any copyright, trademark or other proprietary notices, legends or Esper branding contained in or on the Solution or Deliverables, (e) use the Solution or Deliverables in any way that violates any applicable federal, state, local or international law or regulation, including, but not limited to, violating any person’s privacy rights, (f) attempt to bypass or break any security or rate limiting mechanism in the Solution or Deliverables, (g) conduct load testing or penetration testing on Customer or User infrastructure that interoperates with the Solution or conduct such testing or vulnerability assessments on the Solution itself without Esper’s prior written consent in each instance, and then only subject to such conditions as Esper reasonably requires, or (h) gain unauthorized access to, interfere with, damage or disrupt any parts of the Solution or Deliverables or engage in any other conduct that materially and adversely impacts the availability, reliability, or stability of the Solution or Deliverables. Customer also agrees to comply, and will ensure that its Users comply, with any usage limitations (e.g., the number of Devices on which Users may download the Agent) in the Agreement, including any Order Form and/or SOW. Esper may rate limit and/or terminate any testing or overloading of the Solution at any time, as Esper determines necessary or advisable to protect the Solution’s operation or integrity.
- Orders and Payment Terms.
- 4.1 Purchases. You may purchase a subscription for the right to access and use the Solution and/or additional Esper products by entering into one or more Order Form(s) with Esper.
- 4.2 Fees. Your right to access and use the Solution and receive the Professional Services (if applicable) is subject to your timely payment of all fees as set forth herein (including Overage Fees), and in the applicable Order Form and SOW (“Fees”). All Fees must be paid in U.S. dollars. Payment obligations are non-cancelable and, except as expressly stated in these Terms of Service, are non-refundable. We may modify our Fees or introduce new fees in our sole discretion, and any revised or new fees will only become effective upon the renewal of your Subscription Period.
- 4.3 Payment. We will invoice you and you agree to pay all Fees as set forth herein and in the applicable Order Form and SOW (as applicable). If the Billing Period for your subscription is designated as “Annual Prepaid” in the applicable Order Form, then you will be invoiced in advance for the initial year of the Subscription Period and on each anniversary date thereafter for each subsequent year (or portion thereof) for the duration of the Subscription Period; provided, any Overage Fees due for such Annual Prepaid subscription shall be invoiced pursuant to Section 1.3(a). Alternatively, if the Billing Period for your subscription is designated as “Monthly” in the applicable Order Form, then you will be invoiced on a monthly basis for the duration of the Subscription Period. Except as otherwise set forth in an Order Form or SOW, all Fees due hereunder are due within thirty (30) days of the invoice date.
- 4.4 Taxes. Fees are 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. Customer will be responsible for paying all such taxes associated with its purchases, except for those taxes based on our net income.
- 4.5 Unpaid Fees. If you fail to pay any Fees due in accordance with this Section 4, in addition to our other remedies, we may (a) suspend access to and use of the Solution and any Deliverables by you and Users pending payment of such overdue amounts, or (b) immediately terminate the Agreement and/or any specific Order Form or SOW for breach. If you believe that we have invoiced you incorrectly, you must submit any invoice dispute prior to the payment due date in order to receive an adjustment or credit, otherwise your right to dispute the amounts invoiced shall be waived. In the event of a disputed invoice, only that portion so disputed in good faith may be withheld from payment and you must timely pay the undisputed portion. Esper may charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments. You are responsible for any and all costs of collection incurred by Esper in collecting such late or past due payments, including reasonable attorney’s fees and litigation costs.
- 4.6 Initial Subscription Period and Renewals. Your subscription to the Solution will be in effect for the Subscription Term identified in the applicable Order Form (the "Initial Subscription Period") and thereafter shall auto-renew for successive one (1) year periods (each, a “Renewal Period” and collectively with the Initial Subscription Period, the “Subscription Period”) until terminated by either party giving the other party notice of its intent not to renew the subscription at least thirty (30) days prior to the end of the then-current Subscription Period.
- 5.1 Ownership of Esper Materials. You do not acquire any right or license to use the Solution or Deliverables in excess of that expressly set forth herein and in the applicable Order Form(s) and SOW. As between You and Esper, Esper shall own all right, title and interest (including, without limitation, all patent, copyright, trademarks, trade secret and other intellectual property rights) in and to the Solution, Deliverables, and Esper’s published technical documentation for the Solution (“Documentation”), all related and underlying technology and any enhancements, improvements, updates, upgrades, and modifications thereto, and all derivative works of or modifications to any of the foregoing. There are no implied licenses granted under the Agreement and all rights not expressly set forth in the Agreement are hereby expressly reserved by Esper.
- 5.2 Customer’s License to Us. As between Esper and Customer, Customer will own all Customer Data except to the extent it comprises Usage Data as described in Section 5.3. By submitting, posting, storing, or otherwise making Customer Data available through the Solution, Customer grants us a royalty-free, sublicensable (as necessary to subcontractors), non-transferable (except as permitted under Section 12.7), non-exclusive, worldwide license to use, host, store, reproduce, modify (e.g., to make sure your Customer Data displays properly through our Service), publish, list information regarding, translate, distribute (to the Authorized Users), perform (for Authorized Users), display (to Authorized Users), and make derivative works of the Customer Data solely for use in connection with our provision of the Solution hereunder.
- 5.3 Usage Data. As we operate the Solution, we collect data pertaining to each Device, as well as information about the performance of the Solution and measures of the operation of the Solution. Notwithstanding anything to the contrary contained herein, provided that such data (“Usage Data”) is aggregated and anonymized, and no personal identifying information of the Customer is revealed to any third party, the parties agree that Esper is free to use the Usage Data in any manner. Esper owns all right, title, and interest in and to such Usage Data. For clarity, this Section does not provide Esper the right to identify Customer as the source of any Usage Data. Notwithstanding anything to the contrary contained herein, we shall not be prohibited or enjoined at any time by Customer from utilizing any “skills or knowledge of a general nature” acquired during the course of providing the Solution and/or Professional Services. For purposes of the Agreement, “skills or knowledge of a general nature” includes, without limitation, anything that might reasonably be learned or acquired in connection with similar work performed for another client.
- 5.4 Feedback. You may, but are not required to, provide suggestions, comments, or other feedback to Esper related to or in connection with the Solution or Deliverables (“Feedback”). Esper may want to incorporate this Feedback into the Solution or otherwise utilize the Feedback and this clause provides us with the necessary license to do so. You hereby grant to us and our Affiliates a royalty-free, worldwide, perpetual, irrevocable, fully transferable and sublicenseable right and license to use, disclose, reproduce, license, modify, create derivative works from, distribute, display and otherwise exploit any Feedback as we see fit, without compensation, obligation, or restriction, except that Esper will never identify you as the provider of such Feedback.
- Confidentiality and Data Security
- 6.1 Definition. “Confidential Information” means all information and physical material not generally known or available outside Disclosing Party and information and physical material entrusted to Disclosing Party in confidence by third parties. Confidential Information includes, without limitation: business plans, roadmaps, projections, methods and practices, pricing strategies, technical data, trade secrets, know-how, research, product or service ideas or plans, developments, inventions, patent applications, agreements with third parties, lists of, or information relating to, employees and consultants of Disclosing Party (including, but not limited to, the names, contact information, jobs, compensation, and expertise of such employees and consultants), lists of, or information relating to, suppliers and customers, price lists, pricing methodologies, cost data, market share data, marketing plans, licenses, contract information, financial forecasts, historical financial data, budgets or other business information disclosed by Disclosing Party (whether by oral, written, graphic or machine-readable format), and which Confidential Information is designated in writing to be confidential or proprietary, or if given orally, is identified as confidential or proprietary at the time of the oral disclosure, or which information would, under the circumstances, appear to a reasonable person to be confidential or proprietary. As used herein, the term “Disclosing Party” will refer to Esper, or its Affiliate(s), whenever the context refers to Esper’s, or its Affiliate(s)’, Confidential Information being disclosed to Customer, which is referred to as “Receiving Party” in that context. Conversely, the term “Disclosing Party” will refer to Customer, or its Affiliate(s), whenever the context refers to Customer’s, or its Affiliate(s)’, Confidential Information being disclosed to Esper, which is referred to as “Receiving Party” in that context. The nature, content, and existence of the discussions and negotiations between Esper and Customer, including the terms of the Agreement, shall be considered the Confidential Information of both parties; the Solution and Deliverables shall be considered the Confidential Information of Esper, and Customer Data shall be considered the Confidential Information of Customer. Notwithstanding the above, information disclosed hereunder will not be considered “Confidential Information” as defined herein where Receiving Party can prove that such information (a) was in the public domain at the time it was disclosed or has entered the public domain through no fault of Receiving Party, (b) was known to Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure, (c) becomes known to Receiving Party, without restriction, from a source other than Disclosing Party without breach of the Agreement by Receiving Party and otherwise not in violation of Disclosing Party’s rights, (d) is disclosed without obligations of confidentiality with the prior written approval of Disclosing Party, or (e) was independently developed by personnel of Receiving Party without access to or use of any Confidential Information disclosed by Disclosing Party.
- 6.2 Protection and Use of Confidential Information. Receiving Party will only use Confidential Information disclosed to it by Disclosing Party in furtherance of the business relationship described herein (the “Purpose”) and not for any other reason or purpose. Receiving Party will not disclose or permit disclosure of any Confidential Information of Disclosing Party to third parties or to employees of Receiving Party other than its or its Affiliate(s)’ directors, officers, employees, consultants and agents who are required to have the information in furtherance of the Purpose (each such person, a "Permitted Disclosee”). Receiving Party will be legally responsible for any breach of the Agreement by its Permitted Disclosees and Disclosing Party may seek legal redress from Receiving Party as if the latter committed the breach of the Agreement. Receiving Party will take reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Disclosing Party in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under the Agreement to have any such information. Such measures will include the degree of care that Receiving Party utilizes to protect its own Confidential Information of a similar nature. Receiving Party will notify Disclosing Party of any misuse, misappropriation or unauthorized disclosure of Confidential Information of Disclosing Party which may come to Receiving Party’s attention. For purposes of the Agreement, an “Affiliate” means an entity that does not compete with Disclosing Party and that is controlled by, controlling or under common control of Esper or Customer, as applicable, but only so long as such control exists. The cessation of such control will not release an Affiliate of its obligation to comply with the terms and conditions of the Agreement for the period of time stated herein, nor release Esper or Customer from their respective obligations hereunder with respect to Confidential Information.
- 6.3 Compelled Disclosure. In the event that Receiving Party or any person to whom they or their representatives transmit or have transmitted Confidential Information of Disclosing Party become legally compelled (by oral questions, interrogatories, requests for information or documents, subpoenas, civil investigative demands or otherwise) to disclose any such Confidential Information, Receiving Party will provide Disclosing Party with prompt written notice so that Disclosing Party may seek a protective order or other appropriate remedy, or both, or waive compliance with the provisions of the Agreement. In the event that Disclosing Party is unable to obtain a protective order or other appropriate remedy, or if it so directs Receiving Party, Receiving Party will furnish only that portion of the Confidential Information that Receiving Party is advised by opinion of its counsel is legally required to be furnished by it.
- 6.4 Data Security. The protection of Customer Data is important to us. Accordingly, for so long as we possess any Customer Data, we will maintain commercially reasonable administrative, physical, and technical safeguards designed to protect such Customer Data in our possession. Those safeguards will include measures designed to prevent unauthorized access, use, modification, deletion and disclosure of Customer Data by our personnel. In the event we have a reasonable, good faith belief that an unauthorized party has accessed Customer Data, we will promptly notify Customer, investigate the incident, and make all commercially reasonable efforts to prevent such incident from continuing to occur.
- Warranties. Each party represents and warrants that it has validly entered into the Agreement and has the legal power to do so, and it will comply with all applicable federal, state and local laws and regulations with respect to its performance under the Agreement. Esper represents and warrants that (a) the Solution will operate materially in compliance with the Documentation, (b) it will provide the Support Services in a professional and workmanlike manner, and (c) prior to making the Solution available to Customer, Esper will use commercially reasonable efforts to detect and screen out all Harmful Code through the use of one or more current virus and malware detection programs. For purposes of the foregoing, “Harmful Code” means any code containing viruses, Trojan horses, time bombs, worms or like destructive code that self-replicates or self-propagates whose purpose is to permanently disrupt, damage, or interfere with Customer’s use of the Solution or Customer’s own computer systems. If the Solution does not operate materially in compliance with the Documentation, Customer will promptly notify Esper in writing and Esper will make commercially reasonable efforts to remedy the non-compliance. If Esper is unable to remedy the non-compliance, Esper may terminate the Agreement and refund to Customer any unused pre-paid Fees for the remainder of the then-current Subscription Period. The foregoing is Customer’s exclusive remedy and Esper’s sole liability if Esper breaches the terms of Section 7(a). Customer represents and warrants that (i) it has obtained all rights and consents as may be required (by law or otherwise) to transfer, post, submit, and use any Customer Data as contemplated by the Agreement, (ii) its entry into the Agreement and performance of its obligations do not breach any of its obligations to any third party, or breach any contract, agreement, or order by which it is bound, and (iii) the Customer Data and our use of it as contemplated by the Agreement and the Solution will not violate any law or infringe any third-party’s rights, including but not limited to any intellectual property or privacy rights.
- Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS OF SERVICE, THE SOLUTION, DELIVERABLES, AND ALL RELATED COMPONENTS AND INFORMATION, THE PROFESSIONAL SERVICES, AND THE DOCUMENTATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND WE DO NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIM ANY AND ALL OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND (B) WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. CUSTOMER ACKNOWLEDGES THAT WE DO NOT WARRANT THAT THE SOLUTION WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF WARRANTIES, SO THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU. THESE TERMS OF SERVICE GRANT SPECIFIC LEGAL RIGHTS, AND CUSTOMER AND USERS MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
- 9.1 Esper. Esper will defend Customer and its officers, directors, and employees (“Customer Indemnified Parties”) from and against any third party claim or action brought against Customer to the extent based solely on (a) an allegation that the Solution and/or Deliverables infringe or misappropriate such third party’s intellectual property rights (patents, utility models, design rights, copyrights and trademarks or any other intellectual property right), or (b) the gross negligence, fraud, or willful misconduct of Esper in connection with the Agreement, and we agree to pay the amount of any settlement that Esper agrees to in a writing signed by Esper’s authorized officer or in any adverse final judgment awarded to the third party claimant by a court of competent jurisdiction. Notwithstanding the foregoing, we will have no obligations or liability under this section or otherwise, and Customer will defend and hold harmless Esper with respect to any claim or award arising from (i) a combination of the Solution and/or Deliverables with any other product, service, software, data, method, or content, including Customer Data, (ii) use of the Solution and/or Deliverables for a purpose or in a manner not permitted by the Agreement, or in a manner for which the Solution or Deliverables, as applicable, were not designed, (iii) any modification of the Solution and/or Deliverables made without our express written approval, or (iv) breach of the Agreement by any of the Customer Indemnified Parties. In addition, we will have no obligations or liability arising from your or any User’s use of the Solution and/or Deliverables after we have notified you to discontinue such use.
- 9.2 Customer. Customer will defend Esper and its officers, directors, and employees from and against any claim, proceeding, or other action arising out of or related to (a) the Customer Data, (b) breach of the Agreement or violation of any applicable law, rule, regulation, or third-party right, including without limitation any right of privacy, by Customer or any User, (c) your or any Users’ access or use of the Solution and/or Deliverables or monitoring of Devices (including any activities under your account and use by your employees and personnel), or (d) Customer’s or any User’s gross negligence, fraud, or willful misconduct, and you agree to pay the amount of any settlement that you agree to in a writing signed by your authorized officer or in any adverse final judgment awarded to the third party claimant by a court of competent jurisdiction.
- 9.3 Procedure. Each party’s obligations under Sections 9.1 and 9.2 are conditioned on the party seeking to have a claim defended and settled (“Indemnified Party”) by the other party (“Indemnifying Party”) (a) providing the Indemnifying Party with prompt written notice of any such claim, (b) granting the Indemnifying Party the sole control of the defense and settlement of the claim, and (c) providing reasonable information and assistance to the Indemnifying Party in the defense or settlement of the claim at the Indemnifying Party’s expense. Notwithstanding anything to the contrary contained herein, Esper’s and Customer’s obligations under Sections 9.1 and 9.2 are limited to the Indemnifying Party’s payment for the cost of defense of the third party claim incurred by the Indemnifying Party and the payment of (i) any settlements agreed to by the Indemnifying Party in a writing signed by an officer of the Indemnifying Party, or (ii) final judgments awarded to the third party claimant by a court of competent jurisdiction.
- 9.4 Options. If Customer’s use of the Solution and/or Deliverables has become, or in Esper’s opinion is likely to become, the subject of a third party claim of infringement or misappropriation, Esper may at its sole option and expense, (a) procure for Customer the right to continue using the Solution and/or Deliverables, as applicable, as set forth hereunder, (b) modify the Solution and/or Deliverables, as applicable, to make the same non-infringing, (c) replace the Solution and/or Deliverables, as applicable, with a non-infringing, functionally equivalent alternative, or (d) if Esper, in its sole discretion, determines that options (a)-(c) are not commercially practicable, terminate the Order Form for the impacted Solution or the SOW for the impacted Deliverables, as applicable, and/or the Agreement and refund to Customer any unused pre-paid Fees for the remainder of the then-current Subscription Period.
- 9.5 Sole Remedy. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, THIS SECTION 9 STATES ESPER’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY UNDER THE AGREEMENT.
- Limitation of Liability. ESPER, ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY WITH RESPECT TO ANY CAUSE RELATED TO OR ARISING OUT OF THE AGREEMENT OR THE SOLUTION OR DELIVERABLES OR USE THEREOF, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL, OR PUNITIVE DAMAGES, (B) DAMAGES BASED ON LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA OR BREACHES IN SYSTEM SECURITY, OR (C) ANY DAMAGES THAT, IN THE AGGREGATE, EXCEED THE AMOUNTS YOU ACTUALLY PAID TO ESPER WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY. THESE LIMITATIONS SHALL APPLY WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE LIMITATIONS IN THIS SECTION 10 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- Term and Termination.
- 11.1 Agreement Term. The Agreement will commence upon the effective date listed in the initial Order Form or SOW (whichever is earliest) executed by the parties and, unless earlier terminated in accordance with the terms of the Agreement, will remain in effect until the later of (a) the date on which your last active subscription to the Solution expires or is terminated, or (b) the date on which all Professional Services are completed under all SOW(s) or as otherwise stated in such SOW(s).
- 11.2 Termination for Cause. Either party may terminate the Agreement for cause if the other party is in material breach of the Agreement and, to the extent curable (other than a default in payment), such material breach remains uncured for a period of thirty (30) days from receipt of written notice by the other party.
- 11.3 Effect of Termination.
- (a) Order Form. Upon expiration or termination of an Order Form or SOW:
- All of your and your Users’ rights under the applicable Order Form or SOW, as applicable, terminate immediately; and
- You remain responsible for all Fees and charges accrued under the applicable Order Form or SOW, as applicable, through the date of expiration or termination of such Order Form or SOW.
- (b) Agreement. Upon expiration or termination of the Agreement:
- Each party will return or destroy all Confidential Information of the other party in its possession or control; provided, a Receiving Party will be permitted to retain copies of the Disclosing Party’s Confidential Information to the extent necessary to comply with applicable law or established document retention policies, provided that such copies will be held by Receiving Party and kept confidential subject to the terms of the Agreement and that any such retained Confidential Information is only accessible to Receiving Party’s legal and IT personnel who have a reasonable need to access such retained Confidential Information for archival purposes only;
- All Order Forms and SOWs also terminate and, except as otherwise set forth herein, all licenses granted hereunder immediately terminate and Customer and all Users must immediately cease all access and use of the Solution and Deliverables;
- Notwithstanding anything contained herein to the contrary, you remain responsible for all Fees and charges payable to us for the period prior to the effective date of termination and, provided the Agreement was terminated other than due to an uncured breach by Esper, all future amounts due under all terminated Order Forms and SOWs shall be accelerated and become due and payable immediately (including amounts due for all years of a multi-year subscription), regardless of whether previously invoiced; and
- the following Sections shall survive termination: 4.2-4.5, 5, 6, 8, 9, 10, 11.3, and 12.
- 12.1 Publicity. Customer grants us the right to use its company name and logo in marketing and promotional purposes on our website and in other public or private communications with our existing or potential customers, subject to compliance with your standard trademark usage guidelines as provided to us from time-to-time.
- 12.2 Force Majeure. Neither party will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of such party, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, pandemic, acts of God, war, terrorism, and governmental action.
- 12.3 Relationship of the Parties; No Third-Party Beneficiaries. The parties are independent contractors and the Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. There are no third-party beneficiaries to the Agreement; a person who is not a party to the Agreement may not enforce any of its terms under any applicable law.
- 12.4 Notice. All notices under the Agreement will be in writing and will be deemed to have been duly given when (a) received, if personally delivered, (b) the next business day if sent for next day delivery by recognized overnight delivery service, (b) upon receipt, if sent by certified or registered mail, return receipt requested, or (c) three days after being sent by prepaid certified or registered U.S. mail. All notices will be sent to the appropriate address of each party as stated in the most recent Order Form or SOW. Either party may update its address for notice by providing notice of such change pursuant to this section.
- 12.5 Modifications and Waiver. Esper may modify these Terms of Service at any time, in our sole discretion. If we make any material modifications to these Terms of Service, we shall inform you by posting the modified terms at https://www.esper.io/terms-of-service. It is your responsibility to check periodically for modifications to these Terms of Service. The modified Terms of Service will be effective upon your next subscription renewal following posting of the updated terms. Your continued access or use of the Solution and/or Deliverables after such renewal confirms your consent to be bound by these Terms of Service, as amended. If you do not agree to be bound by the modified terms, then you may not continue to use the Solution or Deliverables. No failure or delay by either party in exercising any right under the Agreement will constitute a waiver of that right. No waiver under the Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
- 12.6 Severability. The Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of the Agreement will remain in effect.
- 12.7 Assignment. Neither party will assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, we may assign the Agreement in its entirety, without consent, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets. Any purported assignment in violation of this section is void. The Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
- 12.8 Governing Law and Venue. The Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of Delaware, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The state and federal courts located in Delaware will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement or its formation, interpretation or enforcement. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or relating to the Agreement. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees. The courts in some countries will not apply U.S. law to some types of disputes. If you reside in one of those countries, then where U.S. law is excluded from applying, the laws of your country of residence will apply.
- 12.9 Equitable Relief. You acknowledge and agree that an actual or threatened breach of your or any User’s obligations related to Esper’s intellectual property or Confidential Information may result in immediate, irreparable, and continuing damage for which there may be no adequate remedy at law. As such, and notwithstanding anything contained in Section 12.8 to the contrary, Esper may apply to any court of competent jurisdiction for equitable relief (including, without limitation, specific performance or injunctive relief) without the need for posting of any bond or any other surety or security.
- 12.10 Entire Agreement. The Agreement contains the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications, representations, warranties, proposals, negotiations, discussions, understandings, or agreements (whether oral, written, implied, or otherwise) between the parties with respect to the subject matter hereof. In entering into the Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty, except those expressly set out in the Agreement. If there is a conflict between the documents that make up the Agreement, the documents will control in the following order: the Order Form, these Terms of Service, and the SOW. Any additional or conflicting terms contained in any purchase order, proposal, or other document provided by you shall be deemed rejected by Esper without need of further notice of objection, even if such document is acknowledged or accepted by Esper, and regardless of any statement to the contrary which may be contained therein, and shall be of no effect or in any way binding upon Esper. Except as otherwise expressly set forth herein, any amendment to the Agreement must be in writing, signed by both parties, and expressly state that it is amending the Agreement.
- 12.11 Questions. If you have any questions regarding the Agreement, please contact Esper at email@example.com.
Last revised January 16, 2023.
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