Impero End User License Agreement

This End User License Agreement governs your and any of your Users’ use of the Software.  Your use of the Software constitutes your acceptance of this EULA, and you are responsible for your Users’ use of the Software.  Your use of the Software may otherwise be specified in an order document detailing the fees and support or other terms associated with the Software (an “Order”).  Collectively the Order, the Impero Services Agreement, or another set of terms and conditions as agreed, and this Impero End User License Agreement govern your use of the Sofware.

This EULA is between the Impero affiliate entity identified on the applicable Order, or if no entity is identified then Impero Solutions Ltd., or Impero Solutions Inc. if you are based in the United States of America. (“Impero”), and the customer identified on the Order’s Users (“you” or “End User”) and governs your use, access, and distribution of the Software provided to you by Impero, including any documentation or related written materials associated with the same (collectively the “Software”) as well as any other services or activities described in the Order.

1. License

During the term of this EULA, and subject to your compliance with all terms of this EULA and your payment of all fees provided for in the Order, Impero grants to you, during the term specified in the applicable Order, a limited, non-exclusive right and license to use the Software, in executable form only, for your internal operations and benefit of your end users (your “Users”). Upon termination of this license you shall promptly remove and uninstall all instances of the Software. Subject to this EULA, you may sublicense any end-user or per-device software or agents provided by Impero (“Device Agents”) to your Users to enable them to access the Software. You may upload data directly or allow for Impero to process on your behalf, this is referred to as “Customer Data” throughout this EULA, and its processing is governed by our Data Processing Addendum, and Software Privacy Policy, available at www.imperosoftware.com/policies-terms, updated from time to time.

2. Resale

You may not resell the Software unless your organisation has an executed Reseller Agreement in place which specifically allows the resale of Impero Software. If you are permitted to resell the Software, you must ensure that anyone to whom you provide the Software also agrees to this EULA. If you have purchased the Software other than from Impero, your fees, described in Section 6, shall be due to the reseller of the Software in accordance with the terms of your agreement with such third party.

3. Resale

  1. You are responsible for compliance with any and all laws applicable to your use of the Software and the suitability of the Software for your implementation and use. You agree that you will only use the Software in compliance with the laws applicable to your use of the Software and acknowledge that Impero makes no representation or warranty whatsoever regarding the compatibility of the Software with any given legal or regulatory requirement or law.

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  2. You must cooperate with Impero’s reasonable investigation of outages, security problems, and any suspected breach of the Agreement. You are responsible for keeping your account information and permissions current. You agree that your use of the Software will comply with the Acceptable Use Policy(the “AUP”). You agree that you are solely responsible for the suitability of the Software.

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  3. You may only use the Software in accordance with any and all documentation or other written materials provided to you describing the use of the Software (the “Documentation”). You agree, except as otherwise permitted herein to keep the Software and Documentation confidential, and you shall not attempt to reverse engineer, decompile, copy or modify, or permit your Users or a third party to do the same. Evidence of attempts to tamper with our Software and Documentation will result in a material breach of the Order.

4. Support

Impero will provide general assistance, troubleshooting, and related support services to you during the term of this EULA, subject to any additional specifications in your Order unless otherwise stated (“Support”). Support is available via channels notified to you during the timeframe specified in your Order. Impero may from time to time release patches, updates, bug fixes, and other enhancements to the Software (“Releases”), this EULA shall govern all releases and they shall be considered Software for purposes of the EULA. Impero will provide Support only to nominated Users. To receive Support, you must be on the most recent Release or one prior release of the software. Impero may require you to update to the most recent release of the Software. You agree that you will promptly update and install any versions which Impero identifies as important to the security of the Software, designated as a “security release”. If your Order specifies a separate fee for Support, then you are entitled to Support only during the term described in the Order.

5. Security

Impero undertakes no responsibility for the security of any End User Device. Customer must use reasonable security precautions in connection with its use of the Software. Customer Data is, and at all times shall remain, your exclusive property. Impero will not use or disclose Customer Data except as materially required to perform the Services or as required by law. Impero makes no representation or warranty whatsoever regarding Open Source Software or with regard to any third-party products or Services which we may recommend for your consideration.

6. Disclaimers

Impero makes no commitment to provide any services other than those described in this EULA, and any additional services are provided on an AS IS basis. Impero is not responsible to you or any third party for unauthorized access to your data in connection with your use of the Software. Impero and its affiliates, subsidiaries, vendors, suppliers, officers, and employees (collectively Impero’s “Representatives”) disclaim any and all warranties not expressly stated in the EULA to the maximum extent permitted by law including implied warranties such as merchantability, satisfactory quality, fitness for a particular purpose, and non-infringement. Unless specified in the Order, Impero will have no obligations to backup any of your data. You agree that Impero will have no liability whatsoever for your use of any Software which is not within the current or one prior release of the current Software, or for your use of any Software which has not been updated with the latest or one prior release.

7. Fees

The Customer shall be responsible for the payment of all fees in relation to sales, use, and similar taxes relating to your use of the Software. Your use of the Software may be terminated if the Customer does not comply with their payment obligations contained in the Order.

8. Term And Termination

This EULA shall continue in force until the termination of the Order. This EULA cannot be terminated while the Order is still in place. Impero may terminate this EULA for cause on written notice if the other party materially breaches the EULA (including a failure by the Customer to pay fees when due) and does not remedy the breach within 30 days of the non-breaching party’s written notice describing the breach.

9. Data Protection

We process personal data on behalf of the Customer, in accordance with our Software Privacy Notice, and the Impero Services Agreement and DPA. If you require any further information on this, please contact the purchasing representative of your organisation.

10. Intellectual Property

  1. Pre-existing. Each party shall retain exclusive ownership of all patents, copyrights, trademarks, trade secrets, and any other proprietary intellectual property rights (“Intellectual Property”) created, authored, or invented by it prior to the commencement of the Services. If you provide Impero with your pre-existing Intellectual Property (“Customer IP”), then you hereby grant to Impero, during the term of your use of the Services, a limited, worldwide, non-transferable, royalty-free, right and license (with right of sub-license where required to perform the Services) to use the Customer IP solely for the purpose of providing the Services. You represent and warrant that you have all rights in the Customer IP necessary to grant this license, and that Impero’s use of such Customer IP shall not infringe on the Intellectual Property rights of any third party.

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  2. Created by Impero. Excluding any Customer IP, Impero shall own all Intellectual Property created as part of providing the Services or contained in the Software. By virtue of your use of the Services, Impero grants to you, during the term of your rightful use, a limited, non-exclusive, non-transferable, right and license (without the right to sublicense) to use any products, and any Intellectual Property (including Device Agents, but excluding any Third Party Software), provided to you by Impero as part of the Services for your internal use as necessary for you to enjoy the benefit of the Services. You agree that any usage data, usage metrics, and other general information about your use or operation of the Services may be used and disclosed by Impero for Software improvement and market analysis purposes.

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  3. Third Party Software. Impero may provide third party software for your use as part of the Services or to assist in our delivery of the Services (“Third-Party Software”). Unless otherwise permitted by the terms of the applicable license you may not: (i) assign, grant or transfer any interest in the Third Party Software to another individual or entity; (ii) reverse engineer, decompile, copy or modify the Third Party Software; (iii) modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Third Party Software; or (iv) exercise any of the reserved Intellectual Property rights provided under the laws governing this Agreement. Your use of any Third-Party Software may be subject to additional restrictions identified in the Order or an end-user license agreement or similar terms. Upon termination of the Order, you will remove any Impero provided software and Device Agents and any Third-Party Software which has been installed on your (or your users’) devices. Impero makes no representation or warranty regarding Third Party Software except that Impero has the right to use or provide the Third-Party Software and that we are in material compliance with the applicable license.

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  4. If the delivery of the Services infringes the intellectual property rights of a third party and Impero determines that it is not reasonably or commercially practicable to obtain the right to use the infringing element, or modify the Services or Software such that they do not infringe, then Impero may terminate the Order on written notice and will not have any liability on account of such termination except to refund amounts paid for unused Services (prorated as to portions of Software or Services deemed infringing).

Changes to the Privacy Policy and your duty to inform us of changes

This version was last updated on 6 October 2021.

It is important that the personal data we hold about you is accurate and current. Please keep us informed if your personal data changes during your relationship with us.

11. Confidential Information

Each party agrees not to use the other’s Confidential Information except in connection with the performance or use of or provision of the Software, the exercise of its legal rights under this Agreement, or as required by law, and will use reasonable care to protect Confidential Information from unauthorized disclosure. “Confidential Information” means non-public information disclosed by one party to the other in any form that: (i) is designated as “Confidential”; (ii) a reasonable person knows or reasonably should understand to be confidential; or (iii) includes either party’s products, pricing, customers, marketing and promotions, know-how, or the negotiated terms of the Agreement; and which is not independently developed by the other party without reference to the other’s Confidential Information or otherwise known to the other party on a non-confidential basis prior to disclosure. Each party agrees not to disclose the other’s Confidential Information to any third party except: (i) to its Representatives, provided that such Representatives agree to confidentiality measures that are at least as stringent as those stated in this Agreement; (ii) as required by law; or (iii) in response to a subpoena or court order or other compulsory legal process, provided that the party subject to such process shall give the other written notice of at least seven days prior to disclosing Confidential Information unless the law forbids such notice.

12. Publicity, Use Of Marks

Customer agrees that Impero may publicly disclose that it is providing Services to Customer and may use Customer’s name and logo to identify Customer in promotional materials, including press releases. Customer may not issue any press release or publicity regarding the Agreement or use the Impero name or logo or other identifying indicia without Impero’s prior written consent.

13. Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL IMPERO OR ITS REPRESENTATIVES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL LOSS OR DAMAGES OF ANY KIND. IN NO EVENT SHALL IMPERO BE LIABLE TO ANY PUNITIVE DAMAGES OR FOR ANY LOSS OF PROFITS, DATA, REVENUE, BUSINESS OPPORTUNITIES, CUSTOMERS, CONTRACTS, GOODWILL, OR REPUTATION. IN NO EVENT WILL IMPERO’S ACTUAL LIABILITY EXCEED THE AMOUNT OF FEES RECEIVED AS PART OF THE ORDER.

14. Indemnification

YOU HEREBY INDEMNIFY AND HOLD HARMLESS IMPERO AND ITS REPRESENTATIVES FROM AND AGAINST ANY AND ALL ALLEGATIONS, CLAIMS, DEMANDS, COSTS, EXPENSES (INCLUDING ATTORNEYS' FEES AND DISBURSEMENTS), LOSSES, LIABILITIES, PENALTIES, FINES, SETTLEMENTS OR DAMAGES ARISING OUT OF: (I) YOUR ACTUAL OR ALLEGED BREACH OF YOUR OBLIGATIONS CONTAINED WITHIN THIS EULA, (II) YOUR BREACH OF YOUR AGREEMENTS WITH, OR LEGAL OBLIGATIONS TO, ANY OF YOUR USERS OR ANY PARTY TO WHOM YOU RESELL OR OTHERWISE PROVIDE THE SOFTWARE, OR (III) YOUR BREACH OF ANY APPLICABLE LAW. YOUR OBLIGATIONS UNDER THIS SECTION INCLUDE CLAIMS ARISING OUT OF THE ACTS OR OMISSIONS OF YOUR USERS, REPRESENTATIVES AND AFFILIATES, EVEN YOU DID NOT AUTHORIZE SUCH ACTS OR OMISSIONS. IMPERO WILL CHOOSE LEGAL COUNSEL TO DEFEND THE CLAIM, PROVIDED THAT THE CHOICE IS REASONABLE AND IS COMMUNICATED TO YOU. YOU MUST COMPLY WITH IMPERO’S REASONABLE REQUESTS FOR ASSISTANCE AND COOPERATION IN THE DEFENSE OF THE CLAIM. IMPERO MAY NOT SETTLE THE CLAIM WITHOUT YOUR CONSENT, WHICH MAY NOT BE UNREASONABLY WITHHELD, DELAYED OR CONDITIONED. YOU MUST PAY COSTS AND EXPENSES DUE UNDER THIS SECTION AS IMPERO INCURS THEM.

15. Governing Law

  1. If the Customer is contracting with Impero Solutions, Inc., then this EULA is governed by the laws of the State of Texas, USA, exclusive of any choice of law principle that would require the application of the law of a different jurisdiction. Exclusive venue for all disputes arising out of the Agreement shall be in the state or federal courts in Travis County, Texas, and we each agree not to bring any action in any other venue. You waive all objections to this venue and agree not to dispute personal jurisdiction or venue in these courts.

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  2. If the Customer is contracting with any other of the Impero Companies, then this EULA is governed by the law of England and Wales and each of us expressly and unconditionally submits to the exclusive jurisdiction of the courts of England and Wales.

16. Miscellaneous

  1. Entire Agreement. The EULA constitutes the complete and exclusive understanding between the parties regarding its subject matter and supersedes and replaces any prior or contemporaneous representation(s), agreement(s) or understanding(s), written or oral. This EULA may only be varied by a written agreement by both parties that expressly refers to this EULA.  The following provisions shall survive expiration or termination of this EULA: Intellectual Property, Confidentiality, Liability, Indemnification, Governing Law, Miscellaneous, all terms of the EULA requiring you to pay any fees, and any other provisions that by their nature are intended to survive expiration or termination of the EULA.

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  2. You agree to promptly provide written notice by certified mail return receipt requested to Impero at: Impero Software, Seventh Floor, East West, Tollhouse Hill, Nottingham, NG1 5FS, of any suspected breach by Impero of this EULA, including the specifics of any claim of breach or for damages and to provide Impero with a reasonable opportunity to investigate and cure any curable matter. In order to bring an action against Impero for damages, you must give notice to Impero of any claim for damages within 6 months of the date the claim arises. No claim of breach of this EULA shall be made by Customer unless and until all uncontested amounts owed by Customer have been paid.

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  3. Assignment. Neither party may assign the Agreement or any Orders without the prior written consent of the other party except to an affiliate or successor as part of a corporate reorganization or a sale of some or all of its business, provided the assigning party notifies the other party of such change of control.

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  4. If any part of the EULA is found unenforceable, the rest of the EULA will continue in effect, and the unenforceable part shall be reformed to the extent possible to make it enforceable and give business efficacy to the EULA. Other than Representatives, there are no third-party beneficiaries to the EULA.