2. Third-Party Software.
The Services interface with other software products or applications which must be licensed from such third parties by Customer. Customer is solely responsible for its licensed rights to use the third-party software or applications with which the Services interact. Troops does not guarantee the availability of any third-party products. Troops shall have no liability to Customer for Customer’s failure or inability to do any of the foregoing. Customer agrees to indemnify, defend and hold Troops harmless from any claims by such third-parties which result from Customer’s use of third-party software. Customer acknowledges that any data stored in such third party software products or applications may be transmitted to Troops and processed outside such third party products and applications and to that extent such third parties are not responsible for the privacy, security or integrity of such Customer data.3. Term; Renewal; Termination; Survival.
This Agreement shall remain in effect so long as any Order Form remains in effect. On each (1) year anniversary of the start date documented on the applicable Order Form, this Agreement will renew automatically for successive one (1) year periods unless either party delivers a written notice of non-renewal at least 60 days prior to the expiration of the then-current term. Either Party may terminate this Agreement in the event of breach by the other Party which is not cured within 30 days (10 days for a payment breach) after receipt of Notice stating the nature of the breach. In the event of such termination by Customer, Troops will refund to Customer any unused, 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. Upon any expiration or termination of this Agreement, Customer’s right to use the Service shall cease. 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.4. Fees; Payment; Taxes.
Customer shall pay Troops the fees set forth on the applicable Order Form. All Fees are in US dollars and payable as documented on the Order Form. Except as expressly provided herein or on the applicable Order Form, payment obligations are non-cancelable and fees paid are non-refundable. If Fees are not paid when due, interest will accrue on such outstanding Fees at the rate of 1.5% per month, or the maximum legal rate allowed by law, whichever is less. Troops may suspend your access to the Services during any period in which payment of fees is overdue. A suspension will not terminate the Agreement or relieve Customer of any obligations or liabilities. Customer agrees and acknowledges that Troops may, from time to time, engineer additional features or functionalities to the Services for which Troops may offer to Customer for an additional fee. 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; provided, that, in no event shall Customer pay or be responsible for any taxes imposed on, or with respect to, Troops’ income, revenues personnel or other assets.5. Monitoring.
Customer shall implement reasonable controls to ensure compliance with the authorized use of the Service including the number of Users. Customer agrees and Troops reserves the right to monitor Customer’s use of the Services to improve the quality of the Services and to verify Customer’s compliance with the Agreement, including the number of Users. Customer agrees to pay any shortfall in Fees revealed by such monitoring within ten (10) days of receipt of invoice.6. Aggregate Information.
“Confidential Information” shall include the Services, planned future functionality of the Services, pricing, the terms of the Agreement and any non-public information, data or know-how, any proprietary data and any other information disclosed by one party to the other that is marked or otherwise identified as proprietary or confidential at the time of disclosure, or that by its nature would be understood by a reasonable person to be proprietary or 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 by the receiving Party, the receiving Party acknowledges and agrees that the disclosing Party may suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, in addition to any other remedy, the disclosing Party 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.8. Disclaimer.
The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Troops or by third-party providers, or because of other causes beyond our reasonable control. THE SERVICES ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. NEITHER TROOPS NOR ITS SUPPLIERS WARRANT THAT THE SERVICES 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 SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF ACCURACY, CORRECTNESS, RELIABILITY, INTEGRATION, INTEROPERABILITY, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. CUSTOMER AGREES THAT CUSTOMER’S USE OF THE SERVICES ARE AT CUSTOMER’S 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.9. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL TROOPS, 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, EXCEPT FOR TROOPS INDEMNITY OBLIGATIONS IN SECTION 10 HEREIN, 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 SERVICES, WILL NOT EXCEED THE GREATER OF $500 OR THE TOTAL FEES ACTUALLY PAID BY CUSTOMER TO TROOPS IN THE TWO MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR FEES PAID ANNUALLY IN ADVANCE, SUCH SHALL BE CALCULATED TO ARRIVE AT THE MONTHLY FEE. TROOPS’ AGGREGATE LIABILITY FOR ALL INDEMNIFICTAION CLAIMS WILL NOT EXCEED THE GREATER OF $250,000 OR THE TOTAL FEES ACTUALLY PAID BY CUSTOMER TO TROOPS IN THE TWENTY-FOUR MONTHS PRECEDING THE EVENT GIVING RISE TO THE INDEMNIFICATION CLAIM.THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THE AGREEMENT. SOME STATES DO NOT ALLOW THE TYPES OF LIMITATIONS IN THIS PARAGRAPH, SO SUCH MAY NOT APPLY. IN THESE STATES, TROOP’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.10. Indemnity.(a) By Troops:
Troops agrees to and shall defend, indemnify and if applicable, hold harmless, Customer and Customer’s respective officers, agents, partners and employees from and against any and all damages finally awarded or paid in settlement of any third party claim, action, suit, or proceeding (“Claim”) asserted against Customer by a third party, not a party to this Agreement, based on a claim that the Services when used as licensed hereunder, infringes any valid United States patent or copyright of such third party, (the “IP Rights”) but only to the extent that Customer’s use of the Service was in accordance with the terms of this Agreement. Such indemnity by Troops does not extend to Customer’s content. Troop’s indemnification obligations are conditioned upon Customer: (i)
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 except to the extent Troops is prejudiced by such delay; (ii)
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 (iii)
Customer provides to Troops, at Troop’s request and expense, with the assistance, information and authority necessary to perform Troop’s obligations. If the Services become or, in Troops’ opinion, is likely to become the subject of an injunction, Troops may, at its option, (x)
procure for Customer the right to continue using such Service, (y)
modify such Services so that they become non-infringing without substantially compromising its functionality, or if (x)
are not reasonably available to Troops, then (z)
terminate Customer’s license to the allegedly infringing Services and refund any pre-paid amounts for the unused portion of the then current term. The foregoing are Customer’s sole remedies for any infringement of intellectual property rights.
(b) By Customer: Upon demand by Troops, Customer agrees to and shall defend, indemnify and if applicable, hold harmless Troops and Troops subsidiaries, affiliates, and licensors and its’ 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 of Customer’s use of the Services in breach of the licensed right, Customer’s content and/or from Customer’s breach of the Agreement.
11. Force Majeure. Neither party shall be responsible for any delay or failure to perform its obligations under this Agreement (other than obligations to pay fees) caused by an event beyond its reasonable control, including but not limited to, wars, riots, labor strikes, natural disasters, epidemic, pandemic, the infrastructure of the internet, unauthorized network intrusions, or any law, regulation, ordinance or other act or order of any court, government or governmental agency. The Services are hosted on Amazon Web Services (“AWS”). Therefore, Troops service obligations hereunder are necessarily dependent on the continued availability of AWS. Troops will not be responsible to Customer for failures of AWS. 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 change fees due to Troops.
12. Feedback. Troops appreciates it when Customer, Users or individuals (each a “Submitter”) communicates suggestions about the Services or Troops website (“Feedback”). Should any Submitter choose to make a submittal, Troops may use or utilize such Feedback without any obligation of any kind to the Submitter. Further, by submitting Feedback to Troops, Submitter hereby assigns, to Troops all of their right, title and interest in such 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 Services or Troops website any suggestions, enhancement requests, recommendations or other information provided by the Submitter relating to the Services or Troops website.
(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. (b) The Convention for the International Sale of Goods shall not apply. (c) Section headings are for ease of reference only. (d) This Agreement creates no third-party beneficiary rights to the Services or to any third-party product made available through the Services. (e) Troops 's failure to enforce a provision is not a waiver of its right to do so later. (f) If a provision of the Agreement is found unenforceable then the remaining provisions will remain in full force and an enforceable term will be substituted which reflects the Party’s intent as closely as possible. (g) 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. (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 Troops website, the Services, the trademarks, service marks, and logos contained on the site and in the Services 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: Each Party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports; and Customer shall not permit users to access or use Service in violation of any U.S. export embargo, prohibition or restriction.
(a) Notices. Notice(s)’ shall be in writing, sent to the address documented on the Order Form and may be (i) delivered by hand; (ii) sent by overnight courier; (iii) sent by first-class registered or certified mail, return receipt requested, postage prepaid; or (iii) by facsimile or email (followed by first-class mail, postage prepaid), and are deemed received upon delivery. (b) Logo and Name. Customer authorizes Troops to include Customer’s name and logo on the Troops Site as a customer of Troops.
15. 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 by the terms on 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 effect 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. This Agreement may be executed electronically or in counterparts, each of which will be considered an original, but all counterparts together will constitute one agreement.