Last Updated: November, 2018
1. Services. Troops proprietary technology platform and solutions are the “Services” which are licensed to Customer to access under the Terms of this Agreement for the sole purpose of configuring key sales workflow in the Customer’s team messaging platform (i.e. Slack). Subject to the terms and conditions of the Agreement including all payment obligations, Customer may access the Services solely for Customer’s internal business operations during that period of time and up to the number of Customer users documented on the applicable Troops Order Form (“Order Form”). For clarity, “Users” means the named individuals, the Customer employees or consultants, authorized or assigned by Customer to use or access the Services as provided for herein. Customer is liable for any misuse of the Services and/or breach of this Agreement by its Users. Customer may transfer the rights to a new User, so long as the prior User discontinues all use of the Services and said transfer does not exceed the maximum number of Users authorized. Other limitations, if any, will be documented on the applicable Order Form. The Services are hosted on Amazon Web Services (“AWS”), and are subject to the AWS terms and conditions of service. Except for the limited rights and licenses expressly granted hereunder, no other right, license or option is granted, no other use is permitted, and Troops owns and retains all rights, title and interests in and to the Services and Troops documentation. No work for hire shall be performed hereunder.
2. Third Party Software. The Services may operate or interface with other software products or applications which shall be licensed from such third parties by Customer. The use of such third party software may be subject to additional or different terms. Customer is solely responsible for installing, operating and maintaining all necessary rights to use third party software or applications with which the Services interact. Troops does not guarantee the availability of any third party products. Additionally, Troops shall have no liability to Customer for Customer’s failure or inability to do any of the foregoing. Customer agrees to indemnify and hold Troops harmless from any claims by such third parties which result from Customer’s use of any such third party software.
3. Term; Renewal: Unless otherwise documented on the Order Form, the Initial Term is 12 consecutive months from the Start Date on the applicable Order Form. Thereafter, on each (1) year anniversary of such Start Date, this Agreement will renew automatically for successive one (1) year periods unless terminated as provided for herein below. At time of Renewal, Customer may change the number of Users. This Agreement will remain in effect until the Agreement is terminated.
4. Termination; Survival. Upon any expiration or termination of this Agreement, Customer’s right to use the Service shall cease. (i) Termination for Convenience: During any Renewal Period, either Party may terminate as provided on the Order Form. (ii)Termination for Cause: Either Party may terminate this Agreement in the event of breach by the other Party which is not cured within 10 days after receipt of Notice stating the nature of the breach. In the event of such termination by Customer, Troops will refund to Customer any prepaid fees covering the remainder of the then current term. Upon any termination for cause by us, Customer will pay any unpaid fees covering the remainder of the term after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any fees payable to us for the period prior to the effective date of termination. (iii) Survival. Sections that by their nature are intended to survive expiration or termination of this Agreement shall survive any expiration or termination of this Agreement including but not limited to Survival; Indemnification by Customer; Audit, Fees, Taxes, Limitation of Liability; Confidentiality; Disclaimer; Legal; and Entire Agreement.
5. Fees; Payment; Taxes. Customer shall pay Troops the all applicable fees for the Service and number of Users as set forth in the applicable Order Form. Payment obligations are non-cancelable and fees paid are non-refundable. The per User pricing during any automatic Renewal Term will be no more than five percent (5%) higher than that during the immediately prior term for the same number of Users for the same functionality unless Troops has provided Customer with written notice of a different price increase at least ninety (90) days prior to the commencement of the next Renewal Term or unless the Fees in such prior period were designated on the Order Form as ‘promotional’ or ‘pilot’. Customer agrees and acknowledges that Troops may, from time to time, add newly engineered additional features or functionalities to the Service for which Troops may charge an additional fee. All Fees are in US dollars and payable as documented on the Order Form. In the event Customer has received any type of discount and payment is overdue, such discount shall be forfeited. Customer shall reimburse Troops for any sales or use taxes that Troops is required to collect in connection with Customer’s use of the Services and the provision of services under this Agreement.
6. Audit. Customer shall implement reasonable controls to ensure compliance with the authorized use of the Service. Customer agrees and Troops reserves the right to audit Customer’s use of the Services during Customer’s normal business hours, upon reasonable written notice and at Troops expense. Customer agrees to pay any shortfall in Fees revealed by such audit within ten (10) days of receipt of invoice.
8. Confidentiality. ‘Confidential Information’ shall include the Services, planned future functionality of the Services, pricing, the Terms and any non-public information, data or know-how, any proprietary data and any other information disclosed by one party to the other in writing and marked “confidential” or disclosed orally and, within five business days, reduced to writing and marked “confidential”. With respect to Confidential Information, the receiving Party shall (i) use it solely for the purposes specifically provided in this Agreement; and (ii) only disclose such on a ‘need to know’ basis to employees, consultants, affiliates, agents or subcontractors who are bound by nondisclosure agreements at least as strict as this Agreement and provided that such parties are not direct competitors of the disclosing Party. Any Confidential Information disclosed by either Party shall remain confidential for a period of four (4) years from the date of last disclosure or in perpetuity if the Confidential Information constitutes a trade secret under applicable law. The receiving Party is liable for any misuse of Confidential Information by its third parties including its Users, agents, subcontractors, consultants and affiliates. The foregoing obligations do not apply to information that (a) was rightfully in the possession of, or was known by, the receiving Party prior to its receipt from the disclosing Party, free of any obligation of confidence; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by the receiving Party from a third party, without an obligation to keep such information confidential; or (d) is independently developed by the receiving Party without use of or reference to the Confidential Information of the disclosing Party. In the event the receiving Party is required to disclose Confidential Information pursuant to a judicial or governmental order, or valid subpoena, and if such order or subpoena allows, such Party will promptly notify the other Party in writing. In the event of any breach or threatened breach of Confidentiality, Customer agrees that Troops will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, in addition to any other remedy, Troops shall be entitled to seek injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of proving actual damages or posting any bond.
9. Disclaimer. THE SERVICE AND ONLINE TROOPS DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. NEITHER TROOPS NOR ITS SUPPLIERS WARRANT THAT THE SERVICE WILL FUNCTION IN ANY ENVIRONMENT OR BE COMPATIBLE WITH ANY THIRD PARTY APPLICATION OR THAT TROOPS SERVICES WILL BE ERROR-FREE, BUG FREE, UNINTERRUPTED OR OTHERWISE MEET CUSTOMER’S BUSINESS REQUIREMENTS. TO THE FULLEST EXTENT PERMITTED BY LAW, TROOPS HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, ORAL OR WRITTEN, REGARDING THE SERVICE INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF ACCURACY, CORRECTNESS, RELIABILITY, INTEGRATION, INTEROPERABILITY, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU AGREE THAT YOUR USE OF THE SERVICES ARE AT YOUR OWN RISK. Some jurisdictions do not allow the exclusion of certain warranties in certain circumstances. Accordingly, some of the limitations set forth above may not apply.
10. Limitation of Liability. EXCEPT FOR A BREACH OF TROOPS INTELLECTUAL PROPERTY RIGHTS; CUSTOMER’S PAYMENT OBLIGATIONS; BREACH OF CONFIDENTIALITY; OR INDEMNITY OBLIGATIONS, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT TROOPS HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, TROOPS AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO ANY LOSS OR DAMAGE SUFFERED BY CUSTOMER AND ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR CUSTOMER’S USE OF THE SITE AND/OR SERVICES, WILL NOT EXCEED THE GREATER OF $100 OR THE TOTAL AMOUNTS PAID BY CUSTOMER TO TROOPS FOR THE PAST TWO MONTHS OF THE SERVICES IN QUESTION. Some states do not allow the types of limitations in this paragraph, so such may not apply. In these states, liability will be limited to the maximum extent permitted by law.
11. Indemnity.By Troops: Troops agrees to defend, hold harmless and indemnify Customer from and against any and all third party damages and losses arising from any claim, action, suit, or proceeding (“Claim”) asserted against Customer by a third party based on a claim that the Service as used as permitted hereunder, infringes any valid United States patent or copyright of such third party, but only to the extent that Customer’s use of the Service was in accordance with the terms of this Agreement. Troop’s indemnification obligations are conditioned upon Customer: (a) giving Troops prompt written notice of any Claim for which Customer is seeking indemnity hereunder, provided, however, that any delay in providing such notice shall not relieve the Troops of its obligations to the extent Troops is prejudiced by such delay; (b) Troops has sole control of the defense of the Claim and will not settle a claim without consent of the Customer, if such settlement involves an admission of guilt or any financial or performance obligations; and (c) Customer provides to Troops, at Troop’s request and expense, with the assistance, information and authority necessary to perform Troop’s obligations. If the Service becomes or, in Troops’ opinion, is likely to become the subject of an injunction, Troops may, at its option, (i) procure for Customer the right to continue using such Service, (ii) replace or modify such Service so that it becomes non-infringing without substantially compromising its functionality, or, if (i) and (ii) are not reasonably available to Troops, then (iii) terminate Customer’s license to the allegedly infringing Service and refund any pre-paid amounts for any unused portion of the term. The foregoing is Troops sole liability and Customer’s sole remedy for any infringement by the Service and states the entire liability of Troops with respect to infringement of patents, copyrights, trade secrets or other intellectual property rights. The foregoing indemnification obligations set forth herein above shall not apply to: (i) Service modified by any party other than Troops, if the alleged infringement relates to such modification, (ii) Service combined or bundled with any non-Troops products, processes or materials where the alleged infringement would not have occurred but for the creation of such combination, (iii) the use of a version of the Service other than the version that was current at the time of such use, as long as Troops shall have made available Customer with such non-infringing version, (iv) Service created to the specifications of Customer when the infringement would not have occurred but for such specifications provided by Customer; or (v) infringement or misappropriation of any proprietary right in which Customer has an interest. By Customer: Upon demand by Troops, Customer agrees to and shall defend, hold harmless and indemnify Troops, our subsidiaries, affiliates, and licensors and their respective officers, agents, partners and employees, from and against any loss, liability, costs (including reasonable attorneys’ fees), damages, expenses, claims, or demands, made by any third party due to or arising out Customer’s use of the Service in breach of the licensed right, Customer’s content and/or arising from a breach of these Terms.
12. Force Majeure. Neither party shall be responsible for any failure to perform its obligations under this Agreement (other than obligations to pay money) caused by an event beyond its reasonable control, including but not limited to, wars, riots, labor strikes, natural disasters, the infrastructure of the internet, or any law, regulation, ordinance or other act or order of any court, government or governmental agency. Any delays resulting from Customer’s failure to perform or fulfill its responsibilities (such as not having systems ready or failing to provide necessary data) will not affect fees due to Troops.
13. Feedback. Troops appreciates it when Customer, Users or individuals (each a “Submitter”) in any form or any manner, sends or communicates to Troops, or post to Troops forums, comments or suggestions about our Service or website (“Feedback). Should any Submitter choose to make a submittal, Troops may use or utilize any Feedback without any obligation or any kind to the Submitter. Further, by submitting Feedback to Troops, Submitter hereby assigns, to Troops all of their right, title and interest in Feedback. In the event such assignment may not be valid, the Submitter agrees and grants to Troops a royalty-free, worldwide, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other information provided by the submitter relating to the Service.
14. Legal. (a) This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA, without regard to its conflicts of law provisions. The Parties hereby consent and agree that the sole and exclusive jurisdiction and venue for actions related to this Agreement shall be in the state or federal courts located in New York, New York. The Convention for the International Sale of Goods shall not apply. (b) Section headings are for ease of reference only.(c) These Terms create no third party beneficiary rights to the Services or to any third party product made available through the Service. (d) Troops 's failure to enforce a provision is not a waiver of its right to do so later. (e) If a provision is found unenforceable the remaining provisions of these Terms will remain in full effect and an enforceable term will be substituted reflecting the Party’s intent as closely as possible. (f) Customer may not assign any of Customer’s rights hereunder without the prior written authorization of Troops which shall not be commercially unreasonably withheld and any such attempt is void. Troops may freely assign its rights to any successor in interest of any business associated with the Service. (g) This Agreement may be executed in counterparts, each of which shall be deemed an original, and taken together shall constitute one and the same agreement. (h) Troops and Customer are not legal partners nor agents and neither party shall have the power or authority to bind the other; instead, the relationship is that of independent contractors. (i) All content on the Site, the Service, the trademarks, service marks, and logos contained on the Site and in the Service are owned by or licensed to Troops subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. (j) Each party shall comply with all applicable local, state, national and foreign laws, rules and regulations (including applicable export laws and regulations) while performing under this Agreement and using the Service. Without limiting the foregoing: (i) each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; and (ii) Customer shall not permit users to access or use Service in violation of any U.S. export embargo, prohibition or restriction.
15. Miscellaneous. (a) Notices. Notice(s)’ shall be in writing, sent to the provided address and sent by overnight mail, courier, first-class mail or facsimile (followed by confirmation copy by mail), and are deemed received upon delivery. (b) Support.Troops does not offer or provide any technical support or other services under this Agreement. Such services may be available, if at all, upon such terms and conditions as Customer and Troops (or its authorized agent) may agree in a separate arrangement. (c) Use of Logo and Name. Customer authorizes Troops to include Customer’s name and logo on the Troops Site as a customer of Troops.
16. Entire Agreement. This Agreement constitutes the entire agreement between the Parties regarding Customer’s use of the Services. This Agreement may only be modified by a fully executed written amendment signed by the Parties which references this Agreement or the Troops Order Form. Terms on the Customer’s purchase orders or other ordering documentation or email which purports to modify or supplement this Agreement shall not add to or vary the terms and conditions of this Agreement and are of no force and affect even when signed by Troops. This Agreement replaces and supersedes any prior verbal understanding, written communications or representations made by the Parties regarding the subject matter contained in this Agreement.