Espresso Labs EULA

Last Updated: December 29, 2025

PLEASE READ THESE TERMS CAREFULLY BEFORE DOWNLOADING, INSTALLING, OR USING THE SERVICES (AS DEFINED BELOW). BY SIGNING THESE TERMS AND CONDITIONS (“TERMS”), CLICKING “I AGREE,” “I ACCEPT,” OR A SIMILAR BUTTON, OR BY INSTALLING, ACCESSING, OR USING THE SERVICES, YOU (“YOU” OR “CUSTOMER”) EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU ARE ENTERING INTO A LEGAL AGREEMENT WITH ESPRESSO LABS SECURITY LTD. (“ESPRESSO LABS” OR “WE”) (EACH, A “PARTY” AND TOGETHER, THE “PARTIES”), AND THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE LEGALLY BOUND BY THESE TERMS, INCLUDING ANY TERMS INCORPORATED BY REFERENCE.

BY ACCEPTING THESE TERMS, YOU ALSO WAIVE ANY RIGHTS TO REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR THE DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT PERMITTED BY APPLICABLE LAW.

IF YOU ARE NOT THE CUSTOMER AND ARE INSTALLING, ACCESSING, OR USING THE SERVICES ON BEHALF OF THE CUSTOMER, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ACT ON THE CUSTOMER’S BEHALF AND TO ACCEPT AND BIND THE CUSTOMER TO THESE TERMS.

THESE TERMS ARE INCORPORATED INTO AND FORM PART OF YOUR SALES ORDER, IF APPLICABLE.

1. Definitions

1.1 “Partner” means any of Espresso Labs’s approved distributor and/or reseller which is authorized by Espresso Labs to grant Customer with access to the Services.
1.2 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
1.3 “Agent” means any software code We provide You (whether downloadable from Espresso Labs Servers and/or deployed from the installation package installed with the Services), and installed on all, selected, or none, of Customer’s End Points.
1.4 “Agreement” means these Terms together with the Privacy Policy and the Sales Order (to the extent such Sales Order that was executed by the Parties).
1.5 “API” means an application program (or programming) interface.
1.6 “Espresso Labs Data” means the data generated by the Services. For the avoidance of doubt Espresso Labs Data does not include Customer Data.
1.7 “Espresso Labs Competitor” means a person or entity in the business of developing, distributing, or commercializing Internet security products or services, substantially similar to or competitive with Espresso Labs’s products or services.
1.8 “Espresso Labs Servers” means servers belonging to Espresso Labs and/or third-party service providers which Espresso Labs uses.
1.9 “Customer IT Provider” means any individual or entity (other than a Espresso Labs Competitor) that: (i) has access or use of the Services under this Agreement solely on behalf of and for Customer’s Internal Use, and (ii) has an agreement to provide Customer (or its Affiliates) with the Services.
1.10 “Customer Data” means any data (other than Espresso Labs Data) that will be made available and/or accessible to Espresso Labs while the Services are provided to the Customer. In addition, such data shall also include the Reports.
1.11 “Documentation” means any, product descriptions, technical specifications, manuals, and materials relating to the use of the Services (as may be updated from time-to-time) which Espresso Labs may provide to the Customer (directly or via the Partner, as applicable) in its discretion.
1.12 “Effective Date” means the effective date as defined in the Sales Order or in the event no Sales Order was executed by the Parties, the date in which the Customer agreed to this Agreement as set forth herein.
1.13 “Endpoint” means any physical or virtual device, on which the Services will be available.
1.14 “Force Majeure Event” means circumstances or causes beyond the reasonable control of a Party, including, but not limited to on account of strikes, shortages, riots, insurrection, fires, flood, storms, explosions, acts of God, war, government or quasi-governmental authorities actions, acts of terrorism, earthquakes, power outages, pandemic or epidemic (or similar regional health crisis).
1.15 “Intellectual Property Rights” means all intellectual property rights including, without limitations, copyrights, trade-secrets, trademarks, tradenames, patents, know-how, and other proprietary rights whether or not registered, and wherever in the world.
1.16 “Internal Use” means access or use solely for Customer’s and its Affiliates (subject to the terms of this Agreement), own internal information security purposes, in either event, solely on Customer’s behalf and for Customer’s benefit. By way of example and not limitation, Internal Use does not include access or use: (i) for the benefit of any person or entity other than Customer or its Affiliates, or (ii) for the development of any product or service.
1.17 “Partner’s Agreement” mean an agreement (including any exhibits thereto) by and between Espresso Labs and the Partner under which the Partner is authorized to grant Customer with access to the Services.
1.18 “Permitted Users” means any of Customer’s employees or Customer Contractors who are explicitly authorized by Customer to use the Services.
1.19 “Sales Order” means an order form submitted to or by the Customer or to the Partner (as applicable) for the provision of the applicable Services, which includes, inter alia, the Term (as defined below), number of Endpoints, pricing, payment terms and the like and which is duly executed by Espresso Labs and the Customer or the Partner (as applicable).
1.20 “Privacy Policy” means Espresso Labs’s privacy policy (as may be amended from time to time) which is currently available at https://www.Espresso Labs.com/privacy-policy/.
1.21 “Reports” means data reports that contain the results of the monitoring and discovery performed by the Services in relation to Customer’s Endpoints and other IT assets.
1.22 “Services” means Espresso Labs’s services as set forth in the Sales Order.
1.23 “Updates” means any patches, updates, modified versions, additions, service packs and upgrades, if any, which may be provided by Espresso Labs to Customer (directly or via a Partner) from time to time on as available basis.
1.24 “Website” means Espresso Labs’s website which is currently available at: http://www.EspressoLabs.com.

2. Access and Usage Rights

2.1 Subject to the terms and conditions of this Agreement, Espresso Labs hereby grants Customer (directly or via a Partner, as applicable) a limited, non-exclusive, non-sublicensable, non-transferable and revocable right to install (i.e., on a on prem basis) or remotely access (i.e., on a SaaS basis) and/or use (as the case may be) the Services during the Term, solely for Customer’s Internal Use. Customer may only use the Services in accordance with the Documentation, subject to the use limitations indicated in the Sales Order.
2.2 Customer hereby grants Espresso Labs, during the Term, the right to access and collect telemetry data, and to access Customer’s applicable endpoints, systems, and networks as necessary to perform its obligations and maintain IT and cybersecurity functions as detailed in the applicable Sales Order. Such access may include use of the Espresso Labs User Interface and other tools for the purpose of monitoring, investigating, and responding to malicious behavior, IT or security incidents. If Customer wishes to revoke such authorization, Customer shall send a written request to support@EspressoLabs.com.
2.3 Customer is aware and agrees that the use of the Services may result in changes to its system(s) configuration and/or grant of authorizations in such system(s) to the Services. Customer is further aware that revoking such changes and/or authorizations may disable and/or interfere with the normal functionality of the Services, and the Customer shall be solely responsible in such case for the improper functionality of the Services (or any part thereof).
2.4 To the extent that Customer opt-in, during the Term, following the execution of Incident Response, such actions will be logged internally with justification. Espresso Labs will notify Customer via phone call and/or email. Customer acknowledges that execution of Incident Response may temporarily disrupt the Services and/or limit access to them. Such actions may include, but are not limited to, the measures listed below and will be carried out in accordance with the criteria specified herein:
2.4.1 Isolate Host When: Only when a high-confidence, critical-severity threat is confirmed (e.g., active malware, credential theft), the affected asset poses an immediate risk to the environment, and active mitigation is required. How: Performed via Espresso Labs’s platform. Communication: All actions must be logged internally with justification. Espresso Labs will notify Customer via phone call and/or email.
2.4.2 Disable User in Microsoft 365 or Google Workspace When: Only when there is high-confidence, critical-severity evidence (e.g., EDR alert) that a Microsoft 365 or Google Workspace account is compromised or actively being abused, the account poses an immediate risk to the environment, the activity was deemed malicious by an analyst, and active mitigation is required. How: Performed via Espresso Labs’s platform, provided that Customer has allowed the Microsoft 365 or Google Workspace integration. Communication: All actions must be logged internally with justification. Espresso Labs will notify Customer via phone call and/or email.
Without derogating from Section 2.3 above, Customer shall be responsible for ensuring that all required integrations required for the performance of Incident Response (e.g. Active Directory or Microsoft 365 integrations) are properly configured and maintained throughout the Term. Customer must also respond promptly to any Containment Actions related communications and review post-action reports provided by Espresso Labs.
Without derogating from Section 11 below, it is hereby clarified that Espresso Labs shall not be responsible for any damages resulting from the implementation of the Incident, including any interruptions to the operation of the Customer systems.
You may opt out of the Incident Response at any time by notifying Espresso Labs via email at support@EspressoLabs.com and/or through the Espresso Labs platform (to the extent such functionality is available).

3. Customer IT Providers

3.1 To the extent the Customer uses Customer IT Providers for the provision of the Services, Customer authorizes Espresso Labs to give Customer IT Provider the rights and privileges to the Services necessary to enable and provide for Customer’s use. If at any time Customer revokes this authorization, then Customer shall revoke such access and use or contact Espresso Labs Support for assistance with such revocation or limitation of access with written notice to support@EspressoLabs.com.
3.2 Customer IT Providers are subject to the terms and conditions of this Agreement while they are using the Services on behalf of Customer and Customer remains responsible for their acts and omissions during such time. Any breach by a Customer IT Provider of this Agreement shall be deemed as a breach by Customer.

4. Try and Buy, Early Adoption, Beta Program and Evaluation

4.1 If You are invited to and agree to participate in Espresso Labs’s Early Adoption Program or Beta Program, You acknowledge that Early Adoption or Beta versions of the Services are prerelease versions of the Services and as such may contain errors, bugs or other defects. Therefore, your use and testing of the Early Adoption and/or Beta versions of the Services is subject to the disclaimers stated in Section 4.2 below. Additionally, your participation in the Early Adoption and/or Beta versions or your evaluation of the Services, is at Espresso Labs’s sole discretion regarding the duration, scope of use, updates, and support, and may be terminated by Espresso Labs at any time. Use of the Services under this Section 4.1 is limited strictly to your internal use by your employees only.
4.2 IN THE EVENT THAT A TRY AND BUY PERIOD (AS DEFINED IN THE SALES ORDER) IS INCLUDED IN THE SALES ORDER OR DURING EARLY ADOPTION OR BETA USE OR EVALUATION OF THE SERVICES, THEN NOTWITHSTANDING ANY PROVISION TO THE CONTRARY IN THIS AGREEMENT, CUSTOMER EXPRESSLY AGREES THAT THE SERVICES ARE OFFERED ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, OR COURSE OF DEALING. YOU ASSUME ALL RISK AS TO THE RESULTS AND PERFORMANCE OF THE SERVICES AND ACKNOWLEDGES THAT THE USE OF THE SERVICES, TO THE EXTENT APPLICABLE, MUST BE MADE IN STRICT CONFORMANCE WITH ESPRESSO LABS’S INSTRUCTIONS. WITHOUT DEROGATING FROM THE FOREGOING, IT IS UNDERSTOOD AND AGREED THAT ESPRESSO LABS WILL NOT BE LIABLE FOR ANY NETWORK DOWNTIME, SERVICES DOWNTIME, AND/OR IDENTIFYING AREAS OF WEAKNESS IN THE SERVICES. FOR ALL EVALUATIONS (TRY AND BUY), OR EARLY ADOPTION OR BETA USE OF THE SERVICES, WE SHALL HAVE NO LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, OR LOSS OF REVENUE OR PROFIT, LOST OR DAMAGED DATA, LOSS OF PROGRAMS OR INFORMATION OR OTHER INTANGIBLE LOSS ARISING OUT OF THE USE OF OR THE INABILITY TO USE THE SERVICES, OR INFORMATION, OR ANY PERMANENT OR TEMPORARY CESSATION OF THE SERVICES OR ACCESS TO INFORMATION, OR THE DELETION OR CORRUPTION OF ANY CONTENT OR INFORMATION, OR THE FAILURE TO STORE ANY CONTENT OR INFORMATION OR OTHER COMMERCIAL OR ECONOMIC LOSS, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE), EVEN IF ESPRESSO LABS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THAT THEY ARE FORESEEABLE. ESPRESSO LABS IS ALSO NOT RESPONSIBLE FOR CLAIMS BY ANY THIRD PARTY. WHILE THE SERVICES ARE PROVIDED FREE OF CHARGE FOR EVALUATION, EARLY ADOPTION OR BETA PURPOSES ONLY, ESPRESSO LABS’S MAXIMUM AGGREGATE LIABILITY TO YOU SHALL NOT EXCEED US $100. IN JURISDICTIONS WHERE THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT ALLOWED THE LIABILITY OF ESPRESSO LABS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. THIS SECTION 4.2 SHALL SUPERSEDE ANY EXPRESS WARRANTIES OR COMMITMENTS CONTAINED HEREIN.
4.3 In the event of any inconsistencies between the terms of this Section 4 and other provisions of this Agreement, the terms specified in this Section 4 shall prevail.

5. Customers’ Responsibilities

5.1 Customer further acknowledges and agrees that Customer’s use of the Services starts on the Effective Date and the Customer is responsible for providing all configuration data (user accounts, system credentials, etc.) needed to perform the Services. Failure to provide configuration data does not release Customer from any responsibility in the Agreement. Customer acknowledges and agrees that Customer’s and its users’ use of the Services may be dependent upon access to telecommunications and Internet services.
5.2 Customer acknowledges and agrees that: (i) it is Customer’s sole responsibility to provide, in a timely manner and as applicable, any information, configuration data, responses, approvals, classifications, or other feedback reasonably requested by the Services or by Espresso Labs in order to enable the proper operation of the Services; (ii) the Services apply only to the systems, environments, accounts, and configurations that are expressly in scope of the Services as set forth in the applicable Sales Order and/or as reflected in the Documentation; (iii) to the extent Customer maintains, configures, or manages any systems, endpoints, integrations, networks, accounts, applications, infrastructure components, or security controls on its own (in whole or in part), or elects to exclude such assets or controls from the scope of the Services, Customer shall be solely responsible for the operation, configuration, monitoring, security, maintenance, and remediation of such systems and any consequences resulting therefrom; and (iv) Customer shall be solely responsible for any decisions, actions, configurations, omissions, or use of the Services that are inconsistent with, or contrary to, Espresso Labs’s Documentation, instructions, recommendations, remediation guidance, or best practices, including without limitation any decision by Customer not to implement, or to delay implementation of, remediation or configuration changes recommended by Espresso Labs.
5.3 Customer shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required for its access and use of the Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Espresso Labs shall not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
5.4 Customer acknowledges and agrees that the Reports and Services are not guaranteed by Espresso Labs to identify and/or contain any and/or all issues, vulnerabilities, incidents, malware, risk to confidentiality of information, advanced persistent threats, or activity. Customer further acknowledges and agrees that Customer’s use of the Services does not render or guarantee that the Services will be invulnerable or free from unauthorized access, use, or disclosure of information.
5.5 Customer-Controlled Changes and Environment Drift.
Customer acknowledges that the effectiveness of the Services depends on: (a) the accuracy and completeness of the configuration data, system inventory, credentials, integrations, and access rights provided by Customer; and (b) Customer maintaining such information on a current and up-to-date basis during the Term. Espresso Labs shall have no responsibility or liability for any failure, error, omission, delay, misconfiguration, or security exposure resulting from Customer’s changes to its systems, infrastructure, software, network topology, user accounts, access controls, or security policies that are not communicated to Espresso Labs in writing in advance or are not reflected in the scope of the Services.
5.6 Exclusions for Unmonitored, Unsupported, or Third-Party Systems.
Espresso Labs shall have no responsibility or liability for: (a) systems, environments, accounts, cloud resources, integrations, or components that are not monitored, deployed, configured, or supported by the Services; (b) third-party actions, services, products, software, contractors, or managed providers engaged by Customer; (c) Customer’s failure to implement security patches, vulnerability remediation, containment actions, or configuration changes recommended by Espresso Labs in the Reports or otherwise; or (d) Customer’s use of unsupported software, unsupported operating systems, or end-of-life hardware or services.
5.7 No Guarantee of Incident Containment Without Customer Action.
Customer acknowledges that failure to promptly implement security or IT actions or containment steps recommended by Espresso Labs may materially reduce the effectiveness of the Services, and Espresso Labs shall have no liability for any incident, breach, compromise, or loss arising from or relating to such failure or delay.
5.8 Privileged Access and Credentials.
Customer is solely responsible for (a) managing and securing its privileged accounts, administrative credentials, authentication factors, access tokens, API keys, and passwords; (b) enforcing multi-factor authentication, password rotation, and role-based access controls within Customer environments; and (c) preventing unauthorized access to such credentials. Espresso Labs shall have no responsibility or liability for any incident, breach, compromise, or loss arising from or relating to Customer’s failure to securely manage or protect such privileged access or credentials, whether or not such access is used in connection with the Services.
5.9 Data and Log Retention; Coverage Limitations.
Customer acknowledges that the Services may only retain or store data, alerts, logs, telemetry, or historical information for the retention periods and data sources described in the Documentation or otherwise communicated by Espresso Labs. Espresso Labs shall have no responsibility or liability for any failure to detect, investigate, or respond to security events or incidents to the extent such failure results from (a) data or logs deleted, aged-out, overwritten, inaccessible, or never collected by the Services; or (b) data sources or log sources that are not integrated, enabled, or provided by Customer.
5.10 Remote Access and Authorization.
Except where expressly authorized in this Agreement (including any opted-in Incident Response actions under Section 2.4) or as otherwise agreed by the Parties in writing, Espresso Labs shall not remotely access Customer systems, environments, networks, or accounts without Customer’s prior explicit consent. Such consent may be provided through the Services, via email from an authorized Customer representative, or through another written mechanism mutually agreed to by the Parties.
If Customer does not provide such consent, Espresso Labs shall have no responsibility or liability for any delay, failure, security exposure, incident, or reduction in the effectiveness of the Services arising from Espresso Labs’s inability to remotely access Customer systems. Customer acknowledges that certain Services, remediation guidance, or support functions may require remote access to be fully effective, and Customer assumes all responsibility and risk for any limitations resulting from withholding or revoking such access.
Customer shall be solely responsible for maintaining and securing any remote access mechanisms it authorizes and for promptly disabling such access upon termination of this Agreement or upon revocation of access rights.

6. Scope, Limitations, Exclusions, and Disclaimers

6.1 No Guarantee of Remediation or Resolution.
Espresso Labs does not warrant or guarantee that any remediation, configuration changes, containment actions, recommendations, or guidance provided by the Services or by Espresso Labs will fully resolve, eliminate, or prevent vulnerabilities, threats, incidents, unauthorized access, data loss, or other security or IT issues. Customer acknowledges that successful remediation or prevention may require Customer actions outside the scope of the Services, and Espresso Labs shall have no liability for any failure, delay, or insufficiency in remediation or resolution resulting from Customer-controlled systems, configurations, policies, or actions.
6.2 Customer Delays.
Espresso Labs shall have no responsibility or liability for any failure, recurrence, escalation, propagation, or re-exploitation of vulnerabilities, threats, or incidents arising from Customer’s failure or delay in taking recommended actions, approving access, applying patches, implementing configuration changes, disabling accounts, isolating systems, or performing any actions recommended by Espresso Labs or by the Services.
6.3 Partial Visibility and Deployments.
Where the Services are deployed on only a subset of Customer systems, or where coverage is reduced due to Customer removal, deactivation, misconfiguration, or lack of deployment of the Services, Customer acknowledges that Espresso Labs may not have full visibility into Customer’s environment, and Espresso Labs shall have no responsibility or liability for threats, vulnerabilities, incidents, or unauthorized access occurring or propagating in areas that are not monitored, covered, or properly configured.
6.4 No Implied Incident Response or Forensics Obligations.
Unless separately contracted for in writing, Espresso Labs has no obligation to perform digital forensics, incident response, malware analysis, legal hold services, breach notification, threat hunting, or evidentiary preservation, regardless of detection or notification of an incident.
6.5 No Exhaustive Detection Obligation.
Customer acknowledges that no security product or service can detect or prevent all threats, techniques, or attacks, including without limitation zero-day exploits, advanced persistent threats, unknown malware, living-off-the-land attacks, or insider threats. Espresso Labs shall have no liability for any undetected or undetectable threats.
6.6 Shared Responsibility Model.
Customer acknowledges that IT and security responsibilities are shared between the Parties and that certain controls, configurations, policies, and operational safeguards remain solely within Customer’s control. Espresso Labs shall not be responsible for security failures arising from Customer-controlled responsibilities (to the extent Customer maintains such responsibilities), including without limitation access control management, password policies, MFA enrollment, encryption key management, identity management, firewalling, and network segmentation, unless expressly provided as part of the Services.
6.7 Compliance Responsibility.
Customer acknowledges that Espresso Labs does not provide regulatory, legal, or compliance certifications, and that use of the Services alone does not satisfy any regulatory or certification requirement. Customer remains solely responsible for achieving, validating, and maintaining compliance with any applicable standards, frameworks, or regulations. Espresso Labs does not warrant or represent that the Services will ensure Customer’s compliance with any applicable laws, regulations, or standards, including but not limited to data privacy, cybersecurity, or industry-specific requirements. Customer is solely responsible for determining the suitability of the Services for its regulatory obligations and for implementing any additional measures required for compliance. In no event shall Espresso Labs be liable for any fines, penalties, or other regulatory sanctions imposed on Customer arising out of Customer’s use of the Services or failure to comply with applicable laws or regulations.

7. Fees, Payment terms and Affiliates

7.1 To the extent the Services are purchased by You directly from Espresso Labs (and not through a Partner), the Services are conditioned on Customer’s payment in full of the applicable fees set forth in the Sales Order (the “Fees”). You shall pay such Fees directly to Espresso Labs. If You purchased the Services from a Partner, You shall pay Partner in accordance with the terms of your purchase order with such Partner.
7.2 Customer will pay all amounts due under this Agreement in such currency and in such payment terms as set forth in the Sales Order.
7.3 Espresso Labs conducts regular scans to validate that the usage of Espresso Labs’s Services is no more than the volume that was purchased under the Sales Order. If a scan reveals that the usage is in excess, Customer hereby agrees and authorizes Espresso Labs to charge and invoice the Customer (or the Partner as applicable) for such usage and the volume of the respective Services under the Sales Order will be deemed to include such excess till the end of the Term.
7.4 All Sales Order are final and non-cancelable. All Fees and other amounts paid hereunder are non-refundable.
7.5 Any amount not paid when required to be paid hereunder shall accrue interest on a daily basis until paid in full at the lesser of: (i) the rate of one and a half percent (1.5%) per month; or (ii) the highest amount permitted by applicable law.
7.6 Customer shall pay all taxes, duties and levies of any governmental authority related to the Services provided to Customer hereunder, including, but not limited to any sales, use, excise or VAT taxes, except for taxes based on Espresso Labs’s income. All payments by Customer to Espresso Labs shall be made free and clear of and without reduction for all applicable taxes. If Customer is required to withhold any taxes on the amounts payable to Espresso Labs hereunder, Customer shall pay Espresso Labs such additional amounts as are necessary to ensure receipt by Espresso Labs of the full amount which Espresso Labs would have received but for the deduction on account of such withholding.
7.7 Any Affiliate issuing a Sales Order hereunder, or using or accessing any Services, or benefitting from the Customer’s use of the Services, will be bound by and comply with all terms and conditions of this Agreement. The Customer signing this Agreement will remain responsible for its Affiliates’ acts and omissions unless such Affiliates’ have entered into their own Agreements with Espresso Labs.
7.8 Only those transaction-specific terms stating the Services ordered, quantity, price, payment terms, Term, contact information (and for the avoidance of doubt, specifically excluding any pre-printed terms on a Customer or a Partner purchase order) will have any force or effect, unless a particular Sales Order is executed by Espresso Labs and returned to Customer (or the applicable Partner). If any such Sales Order is so executed, then only those specific terms on the face of such Sales Order that expressly identify those portions of this Agreement that are to be superseded will prevail over any conflicting terms herein but only with respect to those Services ordered on such Sales Order.

8. Data Use

8.1 We will handle your information and any Personal Identifiable Information (as defined in our Privacy Policy) made available to us as a controller (including CRM business data and/or any log-in details), in accordance with this Agreement and our Privacy Policy.
8.2 Customer hereby warrants and represents that it will (i) provide all appropriate notices, (ii) obtain all required informed consents and/or have any and all ongoing legal bases, including parental guardians, if applicable in light of the age of the data subjects, and (iii) comply at all times with any and all applicable privacy and data protection laws and regulations (including, without limitation, the EU General Data Protection Regulation (“GDPR”) and the California Consumer Privacy Act of 2018 (“CCPA“), in each case as required for allowing Espresso Labs to use and process the data in accordance with this Agreement (including, without limitation, the provision of such data to Espresso Labs (or access thereto) and the transfer of such data by Espresso Labs to its Affiliates and subcontractors, including transfers outside of the European Economic Area), for the provision of the Services and the performance of the Agreement.
8.3 To the extent that Customer needs a data processing agreement, Customer shall send an email request to privacy@EspressoLabs.com, requesting Espresso Labs’s Data Processing Agreement and return it signed to Espresso Labs as described therein.
8.4 Notwithstanding the foregoing, any anonymous information, which is derived from the use of the Services (i.e., metadata, aggregated, statistics and/or analytics information) which is not personally identifiable information (“Analytics Information”) may be used for providing the Services, for development and/or improvement, and/or for statistical purposes (internally or externally). It is hereby clarified, the Analytics Information is Espresso Labs’s exclusive property.

9. Representations

9.1 Each Party represents and warrants the following: (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) the execution and performance of this Agreement will not conflict with other agreements, commitments and licenses to which it is bound or violate applicable law; and (iii) it has full corporate power and authority to execute, deliver and perform its obligations under Agreement.
9.2 Conformity of the Services. We warrant that during the Term, the most recent release of the Services (“Current Release”) will substantially conform in all material respects with the description of the Services as provided in the Documentation (if provided). Espresso Labs’s sole obligation for material non-conformity with this warranty shall be, in Espresso Labs’s sole discretion, to use commercially reasonable efforts (i) to provide You with an error-correction or workaround which corrects the reported non-conformity; (ii) to replace the non-conforming portions of the Services with materially conforming items; or (iii) if Espresso Labs reasonably determines such remedies to be impracticable within a reasonable period of time, to terminate this Agreement and provide a refund for any amount pre-paid by Customer or by the Partner (as applicable) for such returned Services for the remaining unused period of the Services (on a pro rata basis) and such refund shall be the sole and exclusive remedy of the Customer.
9.3 The above warranty will not apply: (i) if the Services are not used in compliance with the Documentation or Espresso Labs’s instructions; (ii) if any unauthorized repair, maintenance or modifications are made to the Services by You or any third party; (iii) to use of early releases of the Services which are not the Current Release; (iv) to defects due to accident, negligence, abuse or improper use by You; (v) the combination of the Services with equipment or software not authorized or provided by Espresso Labs; (vi) to non-conformity arising from any inaccuracy in the code or other information provided or made available to Espresso Labs; (vii) in the event of any delay in providing the access to the Services by Espresso Labs caused by Customer and/or any of its third party service providers; or (viii) to use of the Services during the Try and Buy Period and/or during the Early Adoption Program or Beta Program.
9.4 In addition, Espresso Labs shall not be responsible for any failure or deficiency of Services availability to the extent caused by or associated with: (i) a Force Majeure Event; (ii) regularly scheduled or emergency maintenance and upgrades; (iii) any causes attributable to Customer and/or Partner and or Customer Contractor(s), (iv) software or hardware not provided or controlled by Espresso Labs; and (v) outages elsewhere on the Internet, including but not limited to interruptions at any Customer or third party data center or internet service provider that hinder Customer’s access to the Services.

10. Intellectual Property Rights

10.1 The Services are not for sale and are Espresso Labs’s sole property. All right, title, and interest, including any Intellectual Property Rights evidenced by or embodied in, attached, connected, and/or related to the Services (and all improvements enhancements, corrections, modifications, alterations, revisions, extensions and updates and derivative works thereof) and any other products, deliverables or services provided by Espresso Labs; are and shall remain owned solely by Espresso Labs or its licensors. This Agreement does not convey to Customer any interest in or to the Services other than a limited right to use the Services in accordance with this Agreement. Nothing herein constitutes a waiver of Espresso Labs’s Intellectual Property Rights under any law. If Espresso Labs receives any feedback (whether orally or in writing) (e.g., questions, comments, suggestions or the like) regarding any of the Services (collectively, “Feedback”), all rights, including Intellectual Property Rights in such Feedback shall belong exclusively to Espresso Labs and be considered Espresso Labs’s Confidential Information and Customer hereby irrevocably and unconditionally transfers and assigns to Espresso Labs all Intellectual Property Rights it has in such Feedback and waives (and vows never to assert) any and all moral rights that Customer may have in respect thereto. It is further understood that use of Feedback, if any, may be made by Espresso Labs at its sole discretion, and that Espresso Labs in no way shall be obligated to make use of any kind of the Feedback or part thereof.
10.2 Restrictions. Except as specifically permitted herein, without the prior written consent of Espresso Labs, Customer must not, and shall not allow any Permitted User and/or third party, to directly or indirectly: (i) copy, modify, create derivative works of or distribute any part of the Services (including by incorporation into its products); (ii) sell, license (or sub-license), lease, assign, transfer, pledge, or share Customer’s rights under this Agreement with any third party; (iii) use any “open source” or “copyleft software” in a manner that would require Espresso Labs to disclose the source code of the Services to any third party; (iv) disclose the results of any testing or benchmarking of the Services to any third party; (v) disassemble, decompile, reverse engineer or attempt to discover the Service’s source code or underlying algorithms, perform penetration tests or attempt to identify vulnerabilities in the Services, publish any articles or posts in any media regarding the technical aspects of the Services, or disclose any findings about the Services to third parties; (vi) use the Services in a manner that violates or infringes any rights of any third party, including but not limited to, privacy rights, publicity rights or Intellectual Property Rights; (vii) remove or alter any trademarks or other proprietary notices related to the Services; (viii) circumvent, disable or otherwise interfere with security-related features of the Services or features that enforce use limitations; (ix) export, make available or use the Services in any manner prohibited by applicable laws (including without limitation export control laws); (x) transmit any malicious code (i.e., software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system) or other unlawful material in connection with the Services; (xi) employ or authorize a Espresso Labs Competitor to use or view the Service and/or the Documentation, or to provide management, hosting, or support for the Services; (xii) use any feature of Espresso Labs’s APIs for any purpose other than in the performance of, and in accordance with this Agreement; or (xii) cause, encourage or assist any third party to do any of the foregoing. Customer agrees to use the Services in accordance with laws, rules and regulations directly applicable to Customer. In the event Customer obtains knowledge that a third party is attempting to take any of the foregoing actions prohibited by this Section 9.2, Customer shall so notify Espresso Labs in writing immediately.
10.3 Reservation of Rights. Each Party reserves all rights not expressly granted in this Agreement, and no licenses are granted by one Party to the other Party under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement. As between the Parties, Customer reserves all right, title and interest in any of Customer Data.
10.4 Content. By using the Service, Customer agrees to and hereby grants and represents and warrants that it has the right to grant Espresso Labs a royalty-free, fully paid up, worldwide, limited and revocable license to use any content delivered to Espresso Labs by Customer through the Services (the “Content”) in connection with the operation and provision of the Service. Under no circumstances whatsoever will Espresso Labs be liable in any way for any Content and any use thereof in any way, including, without limitation, for any errors or omissions, or for any infringement of third party’s rights, loss or damage of any kind incurred as a result of the use or display of any Content transmitted, uploaded or otherwise made available in connection with the Service.
10.5 Open Source. Portions of the Services may include third party open-source software that are subject to third party terms and conditions (“Third-Party Terms”). The Third-Party Terms for such third-party software are available at this link. If there is a conflict between any Third-Party Terms and the terms of this Agreement, then the Third-Party Terms shall prevail but solely in connection with the related third-party open-source software. Notwithstanding anything in this Agreement to the contrary, Espresso Labs makes no warranty or indemnity hereunder with respect to any third-party open-source software.

11. Confidentiality

11.1 Each Party may have access to certain non-public information of the other Party, in any form or media (whether disclosed orally, in writing or in electronic form), including without limitation trade secrets and other information related to the products, software, technology, know-how, or business of the other Party, and any other information that a reasonable person should have reason to believe is competitively sensitive (the “Confidential Information”).
11.2 Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other Party’s Confidential Information from disclosure to a third party.
11.3 The receiving Party’s obligations under this Section, with respect to any Confidential Information of the disclosing Party, shall not apply to and/or shall terminate if such information: (a) was already lawfully known to the receiving Party at the time of disclosure by the disclosing Party; (b) was disclosed to the receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the receiving Party has become, generally available to the public; (d) was independently developed by the receiving Party without access to, or use of, the disclosing Party’s Confidential Information or (e) to the extent the disclosure of the Confidential Information is required by law or by the order of a court of similar judicial or administrative body, provided that (to the extent legally permitted) it promptly notifies the disclosing Party in writing of such required disclosure to enable disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure.
11.4 Neither Party shall use or disclose the Confidential Information of the other Party except for performance of its obligations under this Agreement (the “Permitted Use”).
11.5 The receiving Party shall only permit access to the disclosing Party’s Confidential Information to its respective officers, employees, consultants, Affiliates, agents and subcontractors (collectively “Representatives”) having a need to know such information in connection with the Permitted Use, who either (i) have signed a non-disclosure agreement with the receiving Party containing terms at least as restrictive as those contained herein or (ii) are otherwise bound by a duty of confidentiality to the receiving Party at least as restrictive as the terms set forth herein. Each Party shall be fully responsible for any breach of this Section 10 by any of its Representatives.
11.6 As between the Parties, all right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party.
11.7 Upon disclosing Party’s written request, or upon expiry or termination of the Agreement, whichever is earlier, the receiving Party shall (at disclosing Party’s option) return all Confidential Information to the disclosing Party or destroy the Confidential Information and any copies or extracts thereof. However, receiving Party, its Affiliates and their Representatives may retain any Confidential Information that: (i) they are required to keep for compliance purposes under a document retention policy or as required by applicable law, professional standards, a court, or regulatory agency; or (ii) have been created electronically pursuant to automatic or ordinary course archiving, back-up, security, or disaster recovery systems or procedures; provided, however, that any such retained information shall remain subject to this Agreement.

12. Limited Warranties

12 OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, THE DOCUMENTATION AND ANY OUTPUT THEREOF (INCLUDING THE REPORTS) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND CUSTOMER ACKNOWLEDGES, UNDERSTANDS, AND AGREES THAT ESPRESSO LABS DOES NOT GUARANTEE OR WARRANT THAT IT WILL FIND, LOCATE, OR DISCOVER ALL OF CUSTOMER’S OR ITS AFFILIATES’ SYSTEM ISSUES, THREATS, VULNERABILITIES, MALWARE, AND MALICIOUS SOFTWARE, OR GUARANTEE THAT ANY DATA, FILES, OR SYSTEMS CAN OR WILL BE RESTORED TO ANY PREVIOUS STATE, OR THAT BACKUP OR RECOVERY OPERATIONS WILL BE SUCCESSFUL, COMPLETE, OR FREE FROM ERRORS. CUSTOMER AND ITS AFFILIATES WILL NOT HOLD ESPRESSO LABS RESPONSIBLE THEREFOR. ESPRESSO LABS DOES NOT WARRANT THAT: (I) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR (II) THE SERVICES WILL OPERATE ERROR-FREE. ESPRESSO LABS EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES AND ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING MERCHANTABILITY, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, OR FITNESS FOR A PARTICULAR PURPOSE. THE SERVICES ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. THE SERVICES ARE NOT FOR USE IN THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE-SUPPORT SYSTEMS, AIR TRAFFIC CONTROL, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY, OR PROPERTY DAMAGE.

13. Limited Liability

13 TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY OR THEIR RESPECTIVE AFFILIATES BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, ANY LOSS OF, REPUTATION, DATA, OR DATA USE, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION SUCH DAMAGES FOR LOSS OF REVENUE, BUSINESS OR PROFITS, BUSINESS INTERRUPTION, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES REGARDLESS OF THE CAUSE AND WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. EXCEPT FOR CUSTOMER’S OBLIGATIONS TO PAY ANY APPLICABLE FEES UNDER THIS AGREEMENT AND ANY LIABILITY ARISING UNDER SECTIONS 9 (INTELLECTUAL PROPERTY RIGHTS) AND 13.2 (INDEMNIFICATION), UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL AND AGGREGATE LIABILITY FROM ALL CAUSES OF ACTION OF ANY KIND, INCLUDING WITHOUT LIMITATION CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY, OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER (AND/OR THE PARTNER (AS APPLICABLE)) TO ESPRESSO LABS HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING SUCH CLAIM.

14. Indemnification

14.1 Espresso Labs agrees to defend, at its expense, any third party action or suit brought against the Customer alleging that the Services, when used as permitted under this Agreement, infringes Intellectual Property Rights of a third party (“IP Infringement Claim”); and Espresso Labs will pay any damages awarded in a final judgment against the Customer that are attributable to any such claim. If the Services become, or in Espresso Labs’s opinion are likely to become, the subject of an IP Infringement Claim, then Espresso Labs may, at its sole discretion: (i) procure for the Customer the right to continue using the Services (or any part thereof); (ii) replace or modify the Services to avoid the IP Infringement Claim; or (iii) if options (i) and (i) cannot be accomplished despite Espresso Labs’s reasonable efforts, then Espresso Labs may immediately terminate this Agreement with a written notice to the Customer and/or the Partner (as applicable) and provide a refund for any amount pre-paid by Customer or by the Partner (as applicable) for such returned Services for the remaining unused period of the Services (on a pro rata basis) and such refund shall be the sole and exclusive remedy of the Customer. Notwithstanding the foregoing, Espresso Labs shall have no responsibility for IP Infringement Claims resulting from or based on: (i) use of the Services in a manner not authorized in writing by Espresso Labs; (ii) Customer’s failure to implement any update or enhancement to the Services that is provided by Espresso Labs at no additional charge; (iii) the combination of the Services with equipment, devices or software not supplied and/or authorized by Espresso Labs or not in accordance with Espresso Labs’s instructions and/or the Documentation and/or that was prohibited by this Agreement or where such combination was not otherwise reasonable given the intended use of the Services; (iv) the modification of the Services by anyone other than Espresso Labs or a third party acting on Espresso Labs’s behalf unless expressly authorized by Espresso Labs in writing, (v) any functionality or capability provided by Espresso Labs in accordance with the express written technical designs, specifications, or instructions provided by the Customer or by the Partner, and (v) third party services or products. Section 13.1 states Espresso Labs’s entire liability, and Customer’s exclusive remedy, for claims or alleged or actual infringement in relation to the Services.
14.2 Customer shall indemnify, defend, and hold harmless Espresso Labs, its directors, officers, employees and agents and their respective successors, heirs and assigns (the “Espresso Labs Indemnities“), against any liability, damage, loss, or expense (including reasonable attorneys’ fees and expenses of litigation) incurred by or imposed upon any of Espresso Labs Indemnities in connection with any claims, suits, actions, demands or judgments (“Claims“) arising out of any theory of liability (including without limitation actions in the form of tort, warranty, or strict liability and regardless of whether such action has any factual basis) concerning any act or omission by You, and/or anyone on Your behalf, which constitutes (i) a breach of this Agreement; or (ii) which are in violation of any rights of any third party.
14.3 For purposes of Sections 13.1 and 13.2, with respect to a third-party claim, the party seeking indemnification (the “Indemnified Party”) will promptly notify the party from which indemnification is requested (the “Indemnifying Party”) in writing of any indemnifiable claim. The Indemnified Party shall give the Indemnifying Party full information and assistance for the defense and settlement of such claim and at Indemnifying Party’s request shall give the Indemnifying Party full authority, for the defense and settlement of such claim. The Indemnifying Party shall not settle any claim indemnifiable by the Indemnifying Party without the Indemnified Party’s prior written consent if such settlement contains an admission of liability or fault attributable to the Indemnified Party or any equitable relief.

15. Suspension

15 Espresso Labs may immediately suspend Customer’s access to, or use of, the Services if: (i) Espresso Labs believes that there is a significant threat to the security, integrity, functionality, or availability of the Services or any content, data, or applications in the Services; (ii) Customer and/or its Permitted Users and/or Customer Contractors’ and/or Representatives’ and/or Affiliates’ are in breach of Section 10.2 (Restrictions); (iii) Customer and/or Partner (as applicable) fails to pay Espresso Labs the Fees that are due; (iv) for a Customer paying via credit card – if the Customer removes the credit card details provided to Espresso Labs and fails to update Espresso Labs with new credit card details within five (5) days of such removal, or (iiv) if Partner is in breach of any provision of the Partner’s Agreement (if applicable); provided, however, that Espresso Labs will use commercially reasonable efforts under the circumstances to provide Customer with notice.

16. Term and Termination

16.1 This Agreement shall enter into force and effect on the Effective Date and shall remain in full force and effect for the period specified in the Sales Order, unless earlier terminated as set forth herein (the “Term”).
16.2 Espresso Labs shall be entitled to terminate this Agreement immediately upon written notice to the Customer, in the event that the Customer: (i) enters into liquidation or bankruptcy proceedings, whether voluntary or compulsory, makes a general arrangement with its creditors, or ceases to conduct its business in the ordinary course; or (ii) fails to fulfil any of its obligations or undertakings herein and does not rectify such failure within fourteen (14) days after receiving a written demand to do so and (iii) if Partner is in breach of any provision of the Partner’s Agreement (if applicable) and does not rectify (if curable) such failure within fourteen (14) days after receiving a written demand to do. Notwithstanding anything to the contrary, the Customer shall be entitled to terminate this Agreement immediately upon written notice to Espresso Labs, in the event that Espresso Labs materially breached the terms of this Agreement (including the provision of the Services under this Agreement) and failed to cure such breach within sixty (60) after receiving a written notice from the Customer.
16.3 Upon termination or expiration of this Agreement: (i) Customer’s right to use the Services under this Agreement shall expire; (ii) Customer must promptly cease all use of Services and de-install all software components installed on Customer’s Endpoints; (iii) and Customer shall immediately delete and dispose of all copies of the Documentation in Customer’s or any of its Customer Contractors’ and/or Representatives’ and/or Affiliates’ possession or control.
16.4 If this Agreement is terminated by Espresso Labs, all Fees payable to Espresso Labs for the remainder of the then-current Term shall be immediately due and payable to Espresso Labs, and Customer shall promptly remit all such fees to Espresso Labs.
16.5 If this Agreement is terminated by Customer in accordance with Section 15.2 above, Espresso Labs shall promptly refund the pro-rata amount of any pre-paid Fees attributable to periods after the date of such termination.
16.6 The provisions of this Agreement that, by their nature and content, must survive the termination of this Agreement in order to achieve the fundamental purposes of this Agreement shall so survive.

17. Export Control and Sanctions Compliance

17.1 This Agreement, including the Company’s commitments to deliver the Services (inclusive of any maintenance and support services, if mutually agreed upon by the Parties and as contemplated under this Agreement), is subject to all applicable export control and sanctions laws.

Customer agrees to fully comply with all such applicable laws and regulations in relation to its use of the Services. Customer shall not use, distribute, or otherwise make available the Services in any country, territory, or to any individual or entity where such access or use is prohibited under applicable export control or economic sanctions laws (each, a “Restricted Jurisdiction”). Customer also agrees not to provide access to the Services to any governmental authority, entity, or individual located in a Restricted Jurisdiction, nor to any party listed on any applicable sanctions lists, including, but not limited to, the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) Specially Designated Nationals and Blocked Persons List or the Consolidated Sanctions List (“Restricted Parties”), or to any third party where such access would violate any applicable export or sanctions restrictions.

Customer represents and warrants that neither it nor any of its Affiliates: (i) is subject to the ownership or control (whether direct or indirect) of any person or entity appearing on any applicable sanctions lists, including those maintained by OFAC, or (ii) is established in, organized under the laws of, or operates from any Restricted Jurisdiction. Customer further agrees to comply with all applicable laws concerning the export, re-export, or transfer of technology or services, whether from the United States, or any other relevant jurisdiction.

Should any applicable export or sanctions regulations at any time prohibit the sale, delivery, or continued availability of the Services, in whole or in part, to the Customer, then this Agreement (and any related engagement, opportunity, or Sales Order, as applicable) shall immediately terminate without liability. Customer shall not be entitled to any compensation or remedy resulting from such termination.

17.2 Audit Rights. To ensure compliance with this Section, the Company shall have the right, upon reasonable prior notice and during regular business hours, to conduct periodic audits of the Customer’s relevant books, records, systems, and practices, either directly or through an independent third party subject to confidentiality obligations. Customer shall cooperate fully with such audits and promptly address any compliance deficiencies identified. The Company shall bear the costs of such audits unless a material breach of this Section is discovered, in which case the Customer shall reimburse the Company for all reasonable audit costs incurred.

18. Miscellaneous

18.1 The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
18.2 If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable.
18.3 Customer agrees that Espresso Labs may identify the Customer as user of its Services in its business deals; press releases; marketing materials (including but not limited to case studies); electronic, printed, and broadcast advertising; newsletters; mailings; tradeshows; other promotional materials; on the Website; or any other third-party website where Espresso Labs or its designated agents may promote the Services. Customer hereby grant Espresso Labs and its agents an irrevocable, perpetual, worldwide, non-exclusive, fully paid-up, royalty-free license (with right to sublicense) to use, reproduce, publish, and display Customer’s name, trademarks, service marks, designs, logos, and symbols in connection with such purpose.
18.4 Neither Party may assign its rights or obligations under this Agreement without the prior written consent of the other Party, which consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, this Agreement may be assigned by either Party in connection with a merger, consolidation, sale of all of the equity interests of the Party, or a sale of all or substantially all of the assets of the Party to which this Agreement relates. This Agreement is binding upon and inures to the benefit of the Parties and their respective successors and assigns.
18.5 This Agreement and any exhibits attached or referred hereto represents the entire agreement of the Parties with respect to the subject matter hereof and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the Parties with respect to such subject matter. Espresso Labs may change these Terms from time to time, by posting a modified copy on the Website or by otherwise notifying You. Notwithstanding anything to the contrary, in the event of a material change(s) to these Terms We will notify You about such changes via the email address You provided us. Those changes will be effective and binding as of posting of the notice, unless a different effective date is specified. We therefore recommend You enter, from time to time, to our website in order to review information concerning such modifications. Your continued use of the Services following delivery and/or posting of a notice of modification shall be conclusively deemed an acceptance of such modification. if any modification is unacceptable to You, You must notify us immediately in writing and in such case then Espresso Labs may, at its sole discretion: (i) postpone such changes to come into effect till the current term of your subscription to the Services ends or (ii) terminate this Agreement immediately and in such event provide a refund for any amount pre-paid by You or by the Partner for such returned Services for the remaining unused period of the Services (on a pro rata basis) and such refund shall be the sole and exclusive remedy of the Customer.
18.6 This Agreement shall be governed exclusively by the laws of California, without reference to its conflict of laws principles and the Parties consent to exclusive jurisdiction and venue in and for Santa Clara, California.
18.7 This Agreement does not, and shall not be construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the Parties.
18.8 Force Majeure. Espresso Labs will not be liable for any delay or failure to provide the Services resulting from a Force Majeure Event.