End User License Agreement

Governing TermsThe SolutionLicense RestrictionsIntellectual PropertyDisclaimersLimitation of LiabilitySuspension and TerminationSeverabilityModifications and WaiverEntire AgreementTerms of Service

THIS END USER LICENSE AGREEMENT (this “EULA”) CONTAIN TERMS AND CONDITIONS THAT GOVERN YOUR (“you” or “your” or “Customer”) ACCESS AND USE OF THE PLATFORM (AS DEFINED BELOW) OBTAINED THROUGH A RESELLER (AS DEFINED BELOW) AND PROVIDED BY ESPER.IO, INC. (“we”, “us”, “our”, “Esper”, or “Supplier”). THESE TERMS ARE A CONTRACT BETWEEN ESPER AND YOU OR THE COMPANY OR OTHER LEGAL ENTITY YOU REPRESENT. IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE DEFINED TERMS “you” and “your” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE PROVISIONS AND CONDITIONS OF THESE TERMS, YOU MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE PLATFORM OR RECEIVE ANY SERVICES.

THIS EULA BECOMES BINDING AND EFFECTIVE ON CUSTOMER UPON THE EARLIEST OF: (1) WHEN CUSTOMER ACCESSES OR USES THE SOLUTION OBTAINED THROUGH A RESELLER, OR (2) WHEN CUSTOMER ENTERS INTO A RESELLER/CUSTOMER CONTRACT WITH A RESELLER.

Whereas, Supplier 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 device, facilitate use of the Platform (the Platform and Agents are collectively referred to herein as the “Solution”).

Whereas, Supplier and Reseller (“Reseller”) entered into a Reseller Agreement pursuant to which Reseller is authorized to sell to its customers subscriptions to the Supplier Platform and Agent;

Whereas, Reseller and Customer entered into an agreement (the “Reseller/Customer Contract”) pursuant to which Customer is procuring from Reseller subscriptions to certain products, which may include the Platform and/or Agent; and

Whereas, Supplier and Customer wish to enter into this EULA to establish the terms and conditions under which Customer is entitled to use the Solution.

Now, Therefore, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

  1. Governing Terms. The terms and conditions of this EULA govern Customer’s access to and use of the Solution and are in addition to any terms and conditions contained in the Reseller/Customer Contract that relate to Customer’s access to and use of the Solution. To the extent there is any conflict or inconsistency between the terms of this EULA and the terms of the Reseller/Customer Contract, the terms of this EULA shall control.
  2. The Solution.
  1. License. Subject to the terms and conditions of the Reseller/Customer Contract and this EULA, (a) Customer is granted a 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 Customer’s own internal business purposes and in accordance with the Reseller/Customer Contract and this EULA, and (b) Customer is granted a non-exclusive, non-sublicensable (except as expressly permitted in Section 2.2 below), non-transferable, limited license for itself and its Authorized Users to download, install, and use the Agent (i) on Customer Devices solely as necessary to use the Platform or (ii) on Customer Devices to use the Agents apart from the Platform, each in accordance with the Reseller/Customer Contract and this EULA. For the avoidance of doubt, Customer’s rights under Section 2.1(b) include providing the Agent (when installed on Customer Devices) to Authorized Non-Customer Users. Customer may not (A) resell the Solution except solely when bundled with Customer Devices, or (B) except as expressly set forth above, sublicense any portion of the Solution. The rights granted in this section are solely for the duration of the applicable subscription procured from Reseller (the “Subscription Period”) and the license in Section 2.1(b) may be exercised only with respect to the number of Licensed Devices. The “Licensed Devices” means the aggregate number of device licenses purchased from Supplier by Reseller on behalf of Customer. There are no implied licenses to Supplier intellectual property granted under the Reseller/Customer Contract or this EULA and all rights not expressly set forth are hereby expressly reserved by Supplier.
  2. Users and Devices. Subject to the terms of Section 2.1, Customer’s employees and contractors working for the benefit of and authorized by Customer (each an “Authorized User”) may download, install, and use the Agent on devices that are owned or controlled by Customer (“Customer Device(s)”). Customer may also use the Platform to monitor the devices (“Authorized Non-Customer Device(s)” and together with the applicable Customer Devices, “Devices”) owned, controlled by, and/or provided to Customer’s downstream customers and their end users (“Authorized Non-Customer Users”) as permitted by such Authorized Non-Customer Users. Collectively, the Authorized Users and the Authorized Non-Customer Users shall be “Users”. While only Customer and its Authorized Users may use and access the Platform, Customer may grant a license to its Authorized Non-Customer Users to download, install, and run the Agent on Authorized Non-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 applicable terms and conditions of the Reseller/Customer Contract and this EULA, (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 Reseller/Customer Contract and this EULA, 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 (except to the extent such unauthorized access is due to the failure of Supplier to maintain adequate data security consistent with industry standards). Customer will be deemed to have taken any action that it permits, assists, or facilitates any person or entity to take related to 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.
  3. Updates and Third Party Software. From time to time, Supplier may implement or make available error corrections, bug fixes, features or modified functionality to the Solution at no additional cost to Customer (collectively, “Updates”). Customer is granted the right to use, as part of the Solution, such Updates in accordance with the terms of Section 2.1 as and when they are made generally available by Supplier. Customer agrees to promptly accept and implement, and require its Users to promptly accept and implement, all Updates necessary for the proper function and security of the Solution. Supplier is not responsible for performance, security, availability or other issues or liabilities arising out of or resulting from Customer’s or any User’s failure to promptly implement any Update. 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. Supplier will provide attributions and terms relating to the Third Party Software along with the applicable open source code, if any, as required.
  4. Customer Data. The data inputted by Customer, Authorized Users, or Reseller on Customer's behalf for the purpose of using the Solution or facilitating Customer's use of the Solution will be considered “Customer Data”. Except for Supplier’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 Supplier any Customer Data that includes any personally identifiable information, 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 ("Personal Data"). 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 the Customer Data. Supplier will not access or request Personal Data in connection with the Solution or this EULA except to the extent necessary to provide customer or technical support to Customer or Users, or as otherwise necessary to fulfill Supplier’s obligations under this EULA or the Reseller/Customer Contract.
  1. License Restrictions. 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, (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, 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 available to any third party (except as otherwise expressly permitted by this EULA), (d) remove or obscure any copyright, trademark or other proprietary notices, legends or Supplier branding contained in or on the Solution, (e) use the Solution 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, or (f) attempt to bypass or break any security or rate limiting mechanism in the Solution, gain unauthorized access to, interfere with, damage or disrupt any parts of the Solution or engage in any other conduct that materially and adversely impacts the availability, reliability, or stability of the Solution. 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).
  2. Intellectual Property.
  1. Ownership of Supplier Materials. Customer does not acquire any right or license to use the Solution in excess of those expressly set forth herein and in the Reseller/Customer Contract. As between Supplier and Customer, Supplier shall own all right, title and interest (including all intellectual property rights) in and to the Solution, 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. If Esper will provide you with professional services, whether related to your license to the Solution or otherwise (“Professional Services”), such services may be described in an applicable order form or statement of work executed by the parties. Any work Solution furnished as part of the Professional Services (“Deliverables”)  are owned by Esper 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 2.1. 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, 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 order form or statement of work.
  2. License to Supplier. As between Supplier and Customer, Customer will own all Customer Data except to the extent it comprises Usage Data as described in Section 4.3. By submitting, posting, storing, or otherwise making Customer Data available through the Solution, Customer grants Supplier a royalty-free, sublicensable (as necessary to subcontractors), non-exclusive, worldwide license to use, host, store, reproduce, modify (e.g., to make sure the 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 to Customer and its Users hereunder.
  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 anonymized, and no personal identifying information of Customer or Users, or any data or information stored on, or accessed by, a Customer Device other than data or information related to the Solution, is collected or revealed to any third party, the parties agree that Supplier is free to use the Usage Data in any manner. Supplier owns all right, title, and interest in and to such Usage Data.
  4. Feedback. Customer may, but is not required to, provide suggestions, comments, or other feedback to Supplier related to or in connection with the Solution (“Feedback”). Supplier may want to incorporate this Feedback into the Solution and this clause provides us with the necessary license to do so. Customer hereby grants 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 Supplier will never identify Customer as the provider of such Feedback. Feedback does not include Customer Data.
  1. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SOLUTION AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND SUPPLIER DOES NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS 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 CUSTOMER. 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.
  2. Limitation of Liability. SUPPLIER, TOGETHER WITH ITS AFFILIATES, WILL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY WITH RESPECT TO ANY CAUSE RELATED TO OR ARISING OUT OF THE AGREEMENT OR THE SOLUTION 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 (C) ANY DAMAGES THAT, IN THE AGGREGATE, EXCEED THE AMOUNTS YOU ACTUALLY PAID FOR THE SOLUTION SERVICES HEREUNDER 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 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
  3. Suspension and Termination. We may suspend or terminate Customer’s subscription to the Solution and Customer’s right to access and use the Solution if (a) Customer or any of its Users are in breach of this EULA, or (b) Reseller fails to pay any amounts due to Supplier for such subscription pursuant to the Reseller Agreement. Customer consents to these suspension and termination rights. Upon termination of the Subscription Period, the rights granted herein to Customer with respect to the Solution shall immediately terminate and Customer shall itself, and cause all Users to, immediately discontinue all access to and use of the Solution.
  4. Severability. 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.
  5. Modifications and Waiver. Esper may modify these EULA at any time, in our sole discretion. If we make any material modifications to this EULA, we shall inform you by posting the modified terms at https://www.esper.io/eula (or such successor site). It is your responsibility to check periodically for modifications to these EULA. The modified EULA will be effective upon your next subscription renewal following posting of the updated terms, except that such modification will become effective immediately if required by law. Your continued access or use of the Solution and/or Deliverables after such renewal confirms your consent to be bound by these EULA, 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.
  6. Entire Agreement. This EULA is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. No terms or conditions stated in any purchase order or in any other order documentation we may receive from you shall be incorporated into, or form any part of, this EULA, and all such terms or conditions shall be null and void.

    Revision Date
    Last updated October 9th, 2024
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