Updated November 13, 2017
Tropos Alerts END USER TERMS OF SERVICE
BEFORE USING Tropos Alerts’ ONLINE SERVICE (AS DEFINED BELOW), CUSTOMER MUST READ AND AGREE TO THESE END USER TERMS OF SERVICE (THESE “TERMS“). “Tropos Alerts” MEANS TUPLE TECHNOLOGIES, INC. “CUSTOMER” MEANS THE INDIVIDUAL OR ENTITY IDENTIFIED AS THE CUSTOMER ON AN APPLICABLE Tropos Alerts QUOTATION OR ORDER FORM (INCLUDING, IF APPLICABLE, AN ONLINE ORDERING DOCUMENT) (“ORDER FORM”), INCLUDING ITS PERMITTED USERS. THESE TERMS ARE INCORPORATED BY REFERENCE INTO EACH ORDER FORM EXECUTED BY CUSTOMER AND Tropos Alerts PURSUANT TO WHICH CUSTOMER RECEIVES THE RIGHT TO ACCESS AND USE THE ONLINE SERVICE. THESE TERMS AND THE ORDER FORM TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND Tropos Alerts (THE “AGREEMENT“). THE AGREEMENT IS EFFECTIVE AS OF THE EFFECTIVE DATE STATED IN THE ORDER FORM, or, if IT IS later or if none is provided in the Order Form, the date on which User login access is issued to Customer’s users.
Scope of Subscription.
- Access and Availability. Subject to Customer’s compliance with these Terms, upon Customer’s acceptance of and agreement to the Agreement, Tropos Alerts agrees (i) that it will make the Online Service available to Customer’s employees, representatives, consultants, contractors and/or agents who have been provided unique user identifications and passwords for the Online Service by Customer (the “Users“); and (ii) grants Customer a limited, non-exclusive and non-transferable right for its Users to access and use the Online Service by the number of Users for which Customer has paid applicable fees, in each case during the Subscription Term and solely for Customer’s internal business purposes (the “Subscription“). Customer assumes full responsibility and liability for its Users’ compliance with these Terms. The Subscription is not dependent on any future functionality, upgrades or features (or any public comments or other disclosure made by or on behalf of Tropos Alerts with respect thereto). As used herein, “Online Service” means the online software services provided by Tropos Alerts via https://www.troposalerts.com (or at such other URL as Tropos Alerts may designate from time to time), including related application programming interfaces (API), interactive discussion areas, Customer accounts and profiles, mobile applications, and other related components thereof, on an individual and collective basis. Customer is solely responsible and liable for all of its Users’ acts and omissions related to their access and use of the Online Service, including, without limitation, their compliance with these Terms.
- Subscription Term. Customer’s initial subscription term for the Online Service shall commence on the start date stated in the Order Form, or, if it is later or if none is provided in the Order Form, the day User login credentials are issued to Customer to access the Online Service under the Order Form (the “Effective Date“). The Subscription will continue for the period specified in the Order Form (the “Initial Term“) and will automatically renew on a rolling month-to-month basis (each, a “Renewal Term“) at Tropos Alerts’ then-current rates, unless either party gives the other party written notice of termination at least 30 days prior to the end of the Initial Term or Renewal Term, as the case may be. The Initial Term plus all Renewal Terms are collectively referred to herein as the “Subscription Term“. A “Paid Subscription Term” is the period of time during a Subscription Term that Customer has paid for its Subscription.
- Additional Services. Tropos Alerts will provide any implementation, configuration, training or other professional services described in the Order Form (if any), subject to additional fees and in accordance with the terms and conditions in Appendix A hereto.
- Additional Users. If Customer wants to add additional Users, Customer can do so through the Online Service administrative portal, and either (i) Tropos Alerts will immediately charge Customer’s credit card for the prorated amount for the current term, or (ii) if Customer does not have a credit card on file, then Tropos Alerts will invoice Customer for the additional Users in accordance with the Agreement.
Customer Content, Privacy & Use.
- Customer Content; Upload Restrictions. As between Tropos Alerts and Customer, Customer will retain all right, title and interest in and to all content, information and other data in any format or media which is uploaded or otherwise provided by Customer, its Users, or its systems in the course of using the Online Service (the “Customer Content“); provided, however, that any suggestions, feedback or other ideas related to the improvement of the Online Service submitted by Customer to Tropos Alerts shall be owned by Tropos Alerts upon submission. Customer assumes, and Tropos Alerts disclaims, any and all responsibility and liability for the completeness, quality, accuracy, legality and suitability of the Customer Content and for ensuring that Customer has all rights, permissions and licenses in and to the Customer Content necessary for Customer to use and provide it in connection with the Online Service. Notwithstanding the foregoing, Customer hereby grants to Tropos Alerts a non-exclusive, transferable, worldwide right during the Subscription Term to use the Customer Content solely as reasonably needed to provide Customer the Online Service and any associated services.
- User Compliance & Restrictions. Customer warrants and covenants that its and its Users’ use and activity with respect to the Online Service and Customer Content will comply with applicable laws and regulations and with these Terms. Without limiting its obligations under these Terms, in using the Online Service Customer shall not, and shall ensure that its Users do not:
- tamper with or circumvent the security of the Online Service or access accounts or data not associated with Customer;
- attempt to probe, scan or test the vulnerability of the Online Service, breach the security or authentication measures of the Online Service or attempt to render any part of the Online Service unusable;
- share, distribute, license, sell or otherwise commercially exploit the Online Service (including access thereto) for the benefit of a third party or other unauthorized user, or for any benefit not contemplated by these Terms;
- use or access the Online Service to develop a product or service that is competitive with Tropos Alerts’ products or services or otherwise copy any ideas, features, functions or graphics of the Online Service;
- reverse engineer, decompile, disassemble, translate or seek to obtain the source code of the Online Service, or modify or create a derivative work of the Online Service or any related documentation
- provide false, incomplete, inaccurate or outdated information on any registration forms, accounts or profiles;
- remove or obscure any product identification, proprietary, copyright or other notices contained in the Online Service or related documentation; or
- disclose (whether orally or in writing) information or analysis regarding the specifications or performance of the Online Service (including benchmark tests).
- Communications. Customer will be responsible and liable for the content of all communications sent to any party using the Online Service (including interactive areas such as discussion boards). Customer will not use the Online Service to communicate any message or material that (i) is libelous, harmful to minors, abusive, obscene or constitutes pornography; (ii) infringes the intellectual property rights of any third party or is otherwise unlawful; or (iii) could give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law.
- Suspension. In the event of any breach or threatened breach of these Terms by Customer or its Users (including non-payment of fees), without limiting Tropos Alerts’ other rights and remedies, Tropos Alerts may immediately suspend Customer’s access to the Online Service until the breach is cured or Tropos Alerts reasonably believes there is no longer a threatened breach.
- Credentials. Tropos Alerts shall provide Customer a unique username and password to enable Customer to access the Online Services pursuant to this Agreement. Customer acknowledges and agrees that only the authorized number of users, if applicable, are entitled to access the Online Services with the username and password provided to Customer. Customer is responsible for maintaining the confidentiality of all Customer usernames and passwords, and is solely responsible for all activities that occur under these usernames. Customer agrees (a) not to allow a third party to use its account, usernames or passwords at any time; and (b) to notify Tropos Alerts promptly of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of this Agreement. Tropos Alerts reserves the right to terminate any username and password, which Tropos Alerts reasonably determines may have been used by an unauthorized third party or an individual other than the Customer to whom such username and password was originally assigned.
- SMS. When you opt-in to the SMS functionality of the Online Service, we will send you an SMS message to confirm your signup. You can cancel the SMS service at any time. Just text “STOP” to 842867. After you send the SMS message “STOP” to us, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. If you want to join again, just sign up as you did the first time and we will start sending SMS messages to you again. If at any time you forget what keywords are supported, just text “HELP” to 842867. After you send the SMS message “HELP” to us, we will respond with instructions on how to use our service as well as how to unsubscribe.
- Scope. “Confidential Information” means all information of a party (“Disclosing party“) disclosed or made available to the other party (“Receiving party“) that (i) is clearly marked or identified as such at the time of disclosure or within a reasonable time thereafter; or (ii) should be reasonably known by the Receiving party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. Tropos Alerts’ Confidential Information specifically includes all Online Service software code and pricing terms.
- Restrictions. The Receiving party will: (i) not use the Disclosing party’s Confidential Information for any purpose other than exercising its rights or performing obligations under these Terms; (ii) not disclose such Confidential Information to any person or entity, other than its (a) employees who have a “need to know” for the Receiving party to exercise its rights or perform its obligations hereunder and (b) professional advisers, and actual or prospective investors, provided that such employees, investors, acquirers and professional advisers are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section 3; and (iii) use reasonable measures to protect the confidentiality of such Confidential Information.
- Exceptions. If the Receiving party is required by applicable law or court order to make any disclosure of such Confidential Information, to the extent permitted by applicable law, it will first give written notice of such requirement to the Disclosing party, and permit the Disclosing party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing party in seeking to obtain such protection. Further, the obligations in Section 3b will not apply to information which the Receiving party can reasonably document: (i) was rightfully in its possession or known to it prior to receipt; (ii) is or has become public knowledge or publicly available through no fault of the Receiving party; (iii) is rightfully obtained by the Receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving party who had no access to such information.
- Equitable Relief. The Receiving party acknowledges that unauthorized disclosure of Confidential Information could cause substantial harm to the Disclosing party for which damages alone might not be a sufficient remedy and, therefore, that upon any such disclosure by the Receiving party the Disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law or equity.
Fees; Interest; Taxes. Customer will pay to Tropos Alerts all of the fees specified in an Order Form, in U.S. currency via credit card unless otherwise agreed in the Order Form. Tropos Alerts will charge Customer’s credit card at the time of purchase, and Customer hereby authorizes Tropos Alerts to charge its credit card upon the beginning of each renewal term. Customer shall maintain complete and accurate billing and credit card information on file at Tropos Alerts. Subscription fees are fixed for the Subscription Term unless Customer changes its base package or subscribes to additional features or products. Except as expressly set forth to the contrary in these Terms, all payment obligations are non-cancellable and all amounts paid Tropos Alerts are non-refundable. If the parties agree that payment will not be made by credit card, and unless otherwise stated in the Order Form, Customer will pay all fees within 30 days from the invoice date. Unpaid invoices are subject to a late payment charge of 1.5% per month on any outstanding balance or the maximum permitted by law, whichever is lower, plus all reasonable expenses and fees of collection. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “Taxes“). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Tropos Alerts. Customer will not withhold any Taxes from any amounts due Tropos Alerts. If Tropos Alerts pays any such taxes on behalf of Customer, Customer will reimburse Tropos Alerts for such payments.
Online Service Proprietary Rights. This Agreement is not an agreement for the sale or license of any software or other intellectual property right. Customer acknowledges that the Online Service contains copyrighted and proprietary products and materials. Tropos Alerts (and Tropos Alerts’ licensors, if any) solely and exclusively retain all right, title and interest in and to the Online Service and related support, documentation, professional services, deliverables and all related and underlying software, interfaces, databases, data models, structures, non-Customer-specific data, aggregated statistical data, technology, reports and other intellectual property, plus all intellectual and other proprietary rights therein or thereto, but excluding Customer Content (collectively, the “Tropos Alerts IP“). Except for the Subscription granted hereunder, Customer has no right, title or interest in, and Tropos Alerts reserves all rights to, the Tropos Alerts IP.
Third-Party Tools and Marketing.
- Tropos Alerts may directly or indirectly provide Customer or Users with access to or the opportunity to integrate with third-party tools, services, or other applications which Tropos Alerts neither monitors nor controls (“Third Party Apps”). Customer acknowledges and agrees that Tropos Alerts provides access to or integration with Third Party Apps as a convenience and Customer is not required to implement Third Party Apps. Customer acknowledges and agrees that some integrations with Third Party Apps will allow the transfer of Customer Content to or through the Third Party App. Tropos Alerts provides access to and integration with Third Party Apps strictly on an “as-is” and “as-available” basis without any representations, warranties or conditions of any kind and without any endorsement as to the value of functionality of the Third Party Apps. Third Party Apps may be subject to their own set of terms and conditions constituting a separate agreement between Customer and the third party only, and Customer is responsible for reviewing and agreeing to any separate agreement. Unless set forth to the contrary in the Order Form, Tropos Alerts has no obligation to provide maintenance or support for Third Party Apps or the integration between the Online Service and Third Party Apps, and Tropos Alerts shall have no responsibility or liability whatsoever arising from or relating to your use of Third Party Apps. The operator or owner of Third Party Apps may make changes or modifications to Third Party Apps that affect the integration between the Third Party App and the Online Service, including by reducing, degrading, or eliminating features or functionalities of the Third Party App. Tropos Alerts is not responsible or liable for any loss or damage of any sort incurred as the result of any use of Third Party Apps.
- Customer acknowledges and agrees that in order to provide certain features and functionalities of the Online Service to Customer, Customer must allow the Online Service communication with or access to Customer’s account(s) with other third party service providers to retrieve, manipulate, process, and modify data (“Process”), and you expressly consent to the Online Service’s accessing those accounts to Process that data solely as is necessary to provide the Online Service. If the Online Service cannot for any reason access your third party accounts or Process that data, Tropos Alerts may not be able to provide Customer those features or functionalities, and Tropos Alerts will be excused from any nonperformance of Online Service. Certain features and functionalities of the Online Service require interaction with Customer’s other third-party service providers, for instance, through APIs belonging to those third parties. Customer consents to Tropos Alerts interacting with Customer’s other third party service providers in order to provide Customer requested features and functionality, and Customer acknowledges that Tropos Alerts is not responsible or liable for the accuracy, content, appropriateness, or completeness of data or content Tropos Alerts receives from those third parties.
Online Service Modification. Tropos Alerts reserves the right to modify the Online Service at its discretion and at any time with or without prior notice.
- Term and Termination. This Agreement will be effective during the Subscription Term unless earlier terminated as allowed in these Terms. Unless otherwise stated in the Order Form, these Terms may only be terminated: (i) by a party upon written notice to the other party (A) if the other party breaches a material term of these Terms, which breach, if curable, is uncured within 30 days after receipt of notice of such breach; (B) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (C) immediately in the event of a material breach by the other party of Section 2(c)-(d) of these Terms; and (ii) as expressly allowed elsewhere in these Terms.
- Effect of Termination.
Procedures. Upon termination of this Agreement for any reason, Customer will immediately cease all use of and access to the Online Service and delete or return (at Tropos Alerts’ option) all related documentation, passwords and access codes and any other Tropos Alerts Confidential Information in its possession. Upon written request by Customer made within 30 days after termination, or otherwise at Tropos Alerts’ discretion, Tropos Alerts will provide Customer with temporary access to the Online Service solely for Customer to retrieve its Customer Content and transition out of the Online Service. After such 30-day period, Tropos Alerts will, unless legally prohibited and except for archival backup purposes, have the right, but not the obligation, to delete all such Customer data and Customer Content in its possession or control.
Fees. Upon termination of this Agreement for any reason, Customer will pay all fees owed to Tropos Alerts that have accrued through the effective date of termination in accordance with these Terms; provided, however, that if termination arises out of Tropos Alerts’ modification of the Online Service under Section 7, Tropos Alerts’ breach of the Agreement under Section 8(a)(i)(A), or breach of warranty under Section 9(b), then Tropos Alerts will refund to Customer a prorated amount equal to the pre-paid Subscription fees covering the whole months that would have remained, absent such early termination, in Customer’s Subscription Term following the effective date of such early termination.
Survival. Sections 3, 4, 5, 8, 9(e), 10, 11, and 12 of these Terms will survive any termination or expiration of these Terms.
- Corporate Authority. Each party represents and warrants that it has the legal power and authority to enter into these Terms, and that the Order Form is executed by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of these Terms (including these Terms).
- Functionality. Tropos Alerts warrants that only during any Paid Subscription Term that the Online Service will operate in substantial conformity with the then-current version of applicable documentation provided by Tropos Alerts. As its sole obligation and Customer’s sole and exclusive remedy for any breach of the foregoing warranty, Tropos Alerts shall use reasonable efforts to correct any error in the operation of the Online Service of which Customer notifies Tropos Alerts within 30 days after the occurrence of a breach, and, if Tropos Alerts determines that it cannot correct such error, then Customer may terminate this Agreement and receive a refund pursuant to Section 8(b)(ii).
- Security. Tropos Alerts warrants that during any Paid Subscription Term it has and will use commercially reasonable physical, technical and procedural measures to protect Customer Content against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by Tropos Alerts, including the placement of the Online Service at reputable third-party Internet service providers and co-location facilities.
- Exclusions. Notwithstanding anything contained in this Agreement to the contrary, any and all beta versions of, and free subscriptions to, the Online Service come without warranty of any kind and are used by Customer solely at its own risk and responsibility. Customer acknowledges that that the risks and assumptions undertaken by Tropos Alerts pursuant to this Agreement are only in consideration for the payment of subscription fees.
- Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS SECTION 9 OR IN APPENDIX A (IF APPLICABLE), THE ONLINE SERVICE, SUBSCRIPTIONS AND ALL OTHER Tropos Alerts PRODUCTS AND SERVICES ARE PROVIDED “AS IS”, AND Tropos Alerts, ON BEHALF OF ITSELF AND ITS LICENSORS, SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR ANY PURPOSE, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE WARRANTIES CONTAINED IN THIS SECTION ARE SOLELY TO AND FOR THE BENEFIT OF CUSTOMER AND NO OTHER THIRD PARTY. Tropos Alerts WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELAYS, INTERRUPTIONS, DELIVERY OR SERVICE FAILURES, OR ANY OTHER PROBLEMS OR DAMAGES ARISING FROM CUSTOMER’S USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS OR ANY OTHER SYSTEMS. THE ONLINE SERVICE IS NOT INTENDED TO BE A REPLACEMENT FOR YOUR OTHER INFORMATION TECHNOLOGY NETWORK MONITORING AND ALERTYING SYSTEMS, AND CUSTOMER IS SOLELY LIABLE AND RESPONSIBLE FOR MONITORING ITS INFORMATION TECHNOLOGY NETWORK AND INFRASTRUCTURE.
Limitations of Liability. EXCEPT FOR LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 11, OR A PARTY’S BREACH OF SECTION 3 (CONFIDENTIALITY) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, INCLUDING LOSS OF BUSINESS, GOODWILL, PROFITS, DATA, SALES OR REVENUE, WORK STOPPAGE OR COMPUTER FAILURE OR MALFUNCTION, IN EACH CASE WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR Tropos Alerts’ INDEMNIFICATION OBLIGATIONS, OR A PARTY’S BREACH OF SECTION 3 (CONFIDENTIALITY) IN NO EVENT WILL Tropos Alerts’ TOTAL, CUMULATIVE LIABILITY RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, EXCEED THE TOTAL FEES PAID BY THE CUSTOMER FOR THE RIGHT TO ACCESS AND USE THE ONLINE SERVICE UNDER THIS AGREEMENT DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT OR ACT GIVING RISE TO THE LIABILITY. MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. THIS SECTION 10 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
- Tropos Alerts Indemnification. Tropos Alerts will defend Customer and its Affiliates (“Customer Indemnitees“) against claims, demands, suits or proceedings made or brought by a third party against a Customer Indemnitee alleging that the Online Service as delivered infringes the intellectual property rights of such third party (“Customer Claim“) and Tropos Alerts will indemnify and hold the Customer Indemnitees harmless from and against any loss, liability, damage or cost (including reasonable and necessary attorneys’ fees) (“Losses“) attributable to such Customer Claim. Notwithstanding the foregoing, if Tropos Alerts reasonably believes that the Online Service or Customer’s use of any portion of the Online Service is likely to be enjoined by reason of a Customer Claim or other violation or misappropriation of any third party intellectual property rights, then Tropos Alerts may, at its expense and in its sole discretion: (i) procure for Customer the right to continue using the Online Service; or (ii) replace or modify the applicable software, services or other material so that there is no longer any infringement, violation or misappropriation, provided that such replacement or modification does not adversely affect the functional capabilities of the Online Service. If, in Tropos Alerts’ opinion, (i) and (ii) above are commercially impracticable, Tropos Alerts may, in its sole discretion, terminate these Terms and refund Customer a prorated amount equal to the pre-paid Subscription fees covering the whole months that would have remained, absent such early termination, in Customer’s Subscription Term following the effective date of such early termination. The foregoing indemnification obligation of Tropos Alerts will not apply: (1) if the Online Service is modified by any party other than Tropos Alerts, but solely to the extent the alleged infringement is caused by such modification; (2) if the Online Service is combined with other non-Tropos Alerts products, applications, or processes not authorized by Tropos Alerts, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Online Service; (4) to any third party deliverables or components contained within the Online Service that are not provided by Tropos Alerts; or (5) to the extent the claim is based on infringement by Customer Content. THIS SECTION 11(a) SETS FORTH Tropos Alerts’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
- Customer Indemnification. Customer will defend Tropos Alerts and its Affiliates (“Tropos Alerts Indemnitees“) against claims, demands, suits or proceedings made or brought by a third party against a Tropos Alerts Indemnitee based on, arising from, or related to (i) Customer’s communications through the Online Service, (ii) results or outcomes arriving from Customer’s use of the Online Service, or (iii) Customer Content (as delivered by Customer) (collectively, a “Tropos Alerts Claim“) and Customer will indemnify and hold the Tropos Alerts Indemnitees harmless from and against any Losses attributable to such Tropos Alerts Claim.
- Procedure. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party will promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier will have sole responsibility for and control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party will cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.
- Relationship of Customer and Tropos Alerts. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
- Modifications and Waiver. No modification of, amendment or addition to these Terms is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under these Terms must be in writing and signed by each party. No delay in exercising any right or remedy will operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be construed as a waiver of any right or remedy on any future occasion.
- Assignment. This Agreement and any rights or obligations hereunder may not be assigned, sublicensed or otherwise transferred by the parties without the prior written consent of the non-assigning party, except that either party may assign or transfer these Terms upon a change of control of a party, a sale of all or substantially all assets of that party, or by operation of law by providing the non-assigning party with prior written notice thereof provided that the assignee agrees in writing to be bound by all terms and conditions of these Terms.
- Governing Law & Venue. This Agreement and any claim, controversy, right, obligation, or dispute arising under or related to this Agreement, the relationship of the parties, and the interpretation and enforcement of the rights, performance obligations, and duties of the parties will be governed by and construed in accordance with the laws of the State of Colorado USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to these Terms. The parties irrevocably and unconditionally agree to the exclusive jurisdiction of the state courts in Denver County and the federal courts in the City of Denver, USA. The parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to these Terms.
- Notices. All notices and other required communications under this Agreement shall be in writing, and shall be sent to a party at the address set forth in the Order Form. Notices shall be given: (a) by personal delivery to the other party; (b) by facsimile, with electronic delivery confirmation received; (c) by registered or certified mail, return receipt requested; or (d) by express courier (e.g., DHL, Federal Express, etc.). Notices shall be effective and shall be deemed delivered: (i) if by personal delivery, on the date of the personal delivery; (ii) if by facsimile, on the date stated in the electronic confirmation, delivered during normal business hours (8:00 a.m. to 5:00 p.m. at recipient’s location) and, if not delivered during normal business hours, on the next business day following delivery; (iii) if solely by mail, on the date of receipt as stated on the return receipt; or (iv) if by express courier, on the date signed for or rejected as reflected in the courier’s delivery log.
- Severability. If any provision of these Terms is held to be unenforceable or illegal by a court of competent jurisdiction, such provision will be modified to the extent necessary to render it enforceable, or will be severed from these Terms, and all other provisions of these Terms will remain in full force and effect.
- Publicity. Customer grants Tropos Alerts a limited and revocable license and right to use its name and logo on customer lists and related advertising materials in any commercially reasonable manner.
- Counterparts/Electronic Signatures. This Agreement may be executed and delivered by email, and upon receipt such transmission will be deemed delivery of an original, and which may be executed in several counterparts each of which when executed will be deemed to be an original, and such counterparts will each constitute one and the same instrument. The parties consent to electronic signatures for the purpose of executing Order Forms by e-mail or other electronic means, subject to compliance with any applicable laws, rules or regulations. Any such documents that are delivered electronically and accepted are deemed to be “in writing” to the same extent and with the same effect as if this Agreement had been signed manually. In no event will electronic execution expand such assent to include any terms other than those explicitly set forth herein.
- Force Majeure. Neither party to this Agreement shall be considered in breach of such party’s obligations hereunder to the extent that performance or the need for performance is delayed or prevented by an act of God or a public enemy, fire, flood, area-wide strike, freight embargo, unusually severe weather, or similar type of circumstance beyond such party’s reasonable control; provided that the party claiming force majeure shall, within 10 days from the beginning of such event, give written notice to the other party of the fact of the event and its probable effect on performance. A force majeure event shall not be a basis for a claim for the offsetting or discounting of fees due or for free Online Service use, and each party shall bear such party’s own costs and expenses associated with or caused by such an event. The party claiming force majeure shall take reasonable measures to mitigate the potential impact of the force majeure event on performance of obligations created by this Agreement.
- Subcontractors. Tropos Alerts may use the services of subcontractors for the provision of any Online Service and performance of any services under this Agreement; provided, however, Tropos Alerts will be responsible for each subcontractor’s performance of services hereunder and for each subcontractor’s compliance with the terms and conditions of this Agreement.
- Entire Agreement; Precedence; Interpretation. These Terms, together with the Order Form and all schedules, exhibits or other such documents attached hereto or incorporated herein by reference, constitute the entire agreement and sets forth the entire understanding between the parties hereto with respect to Customer’s Subscription to the Online Service described in the Order Form, and supersedes all prior agreements and discussions with respect thereto (including prior versions of these Terms). Tropos Alerts hereby rejects any different or additional terms of a Customer purchase order or other non-Tropos Alerts ordering document, and no terms included in any Customer purchase order or other non-Tropos Alerts ordering document will apply to the Customer’s Subscription or use of the Online Service. In the event of any contradiction, discrepancy, ambiguity, or inconsistency between the aforementioned contract documents, the following order of precedent shall apply: (1) the Order Form; (2) any Statement of Work, as per Appendix A; (3) Appendixes A; then (4) these Terms. The Agreement will be construed as if it were written and negotiated by both parties equally. Headings contained in these Terms are inserted for convenience of reference only and will not in any way define or affect the meaning or interpretation of any provision of these Terms. For purposes hereof, “including” means “including without limitation”.
Professional Services Terms
Capitalized terms set forth in this Appendix but not defined in the Appendix have the meaning given elsewhere in these Terms.
Statements of Work. All services to be performed under an Order Form shall be described in either an Order Form or a separate written, mutually agreed to statement of work signed by authorized representatives of both parties (each a “SOW“), each of which is expressly made subject to the terms and conditions of these Terms. Customer agrees to retain Tropos Alerts to perform the consulting services described in each SOW (the “Services“), and Tropos Alerts agrees to perform the Services on the terms and subject to the conditions and assumptions set forth in these Terms. Each SOW should contain descriptions of the Services and a description of any Deliverables to be provided by Tropos Alerts, Tropos Alerts’ compensation, and any additional terms and conditions the parties deem appropriate. Customer and Tropos Alerts expressly acknowledge and agree that any schedules or timelines shall not be considered firm or fixed performance dates, are only to be regarded as estimated beginning and completion dates for the tasks and activities to be performed hereunder and are expected to be revised during the term of any engagement. Tropos Alerts agrees to use diligent efforts to meet schedules. Customer acknowledges that Tropos Alerts limits the amount of time Tropos Alerts’ personnel spend on out of town travel, and such limits may impact the weekly schedules of a particular engagement. All Services and Deliverables are deemed accepted by Customer upon completion or delivery and are warranted as described below. Service hours purchased by Customer are payable as set forth above in these Terms and expire as set forth in the SOW, but in any case no longer than 180 days from the date of purchase.
Changes. Each party may request changes that affect the scope or duration of the Services relating to any SOW. Neither party shall be bound by any change requested by the other party, until such change has been memorialized in writing and signed (or otherwise agreed to in writing, including e-mail) by authorized representatives of each party (“Change Order“). Each Change Order will be subject to the terms and conditions of these Terms.
Location and Access. Tropos Alerts may perform the Services at Customer’s premises, Tropos Alerts’ premises or such other premises that Customer and Tropos Alerts may deem appropriate. The SOW may describe the location where Tropos Alerts will perform Services. Customer will permit Tropos Alerts to have reasonable and safe access to Customer’s premises, personnel and computer equipment for the purposes of performing the Services at Customer’s premises.
Customer Assistance. Customer shall provide Tropos Alerts with such resources, information, cooperation, and assistance as Tropos Alerts may reasonably request in connection with the performance of the Services. Without limiting the generality of the foregoing, in the event the Services are provided on Customer’s premises, Customer shall provide safe and adequate space, power, network connections, and other resources as reasonably requested by Tropos Alerts, whether requested during regular business hours or otherwise. Customer acknowledges and agrees that Tropos Alerts’ ability to successfully perform the Services in a timely manner is contingent upon its receipt from Customer of the information, resources and assistance requested. Tropos Alerts shall have no liability for deficiencies in the Services or deliverables, or failure to meet any schedule, resulting from the acts or omissions of Customer, its agents or employees or performance of the Services in accordance with Customer’s instructions.
Customer Information. Customer acknowledges and agrees that Tropos Alerts may, in performing its obligations pursuant to these Terms, be dependent upon or use data, material, and other information furnished by Customer without any independent investigation or verification thereof, and that Tropos Alerts shall be entitled to rely upon the accuracy and completeness of such information in performing the Services. Tropos Alerts, in performing the Services, will be making recommendations and providing advice, but all decisions as to implementing such advice and recommendations shall be made by and shall be the sole responsibility of the Customer and Tropos Alerts shall be entitled to rely on all such decisions of Customer.
Non-solicitation. Both parties agree that during the term of these Terms and for a period of 12 months thereafter, neither party shall solicit, negotiate with or offer employment to (whether as an employee, officer, director, partner, consultant or otherwise), directly or indirectly, either party’s present or former personnel, with whom they have either had contact or been referred to during the term of these Terms, without first notifying an authorized designee of the other party of such intent in writing. Due to the scarcity of human resources that possess the skills and experience necessary to perform services on behalf of Tropos Alerts, Customer acknowledges that Tropos Alerts’ damages and losses resulting from any breach of this Section f would be extremely difficult to fix in an actual and accurate amount. Therefore, it is further agreed that if Customer breaches this Section f by hiring any Tropos Alerts personnel (whether as an employee, officer, director, partner, consultant or otherwise), Customer will pay a fee equal to one hundred percent (100%) of the projected one-year annualized compensation for the person or persons hired as liquidated damages. This fee would be payable immediately upon acceptance of hire.
Ownership. “Tropos Alerts Reserved Technology” means any ideas, concepts, know-how, knowledge, techniques, tools, approaches, methodologies, templates, operating instructions, standardized features, other technology, or any intellectual property rights created, developed, owned or licensed by Tropos Alerts (i) prior to the Effective Date of these Terms or (ii) during the term of these Terms but outside the scope of these Terms and any SOW or (iii) during the term of these Terms that are generally applicable and not Customer-specific. Other than Tropos Alerts Reserved Technology, all work product that Tropos Alerts creates specifically for Customer under any SOW (the “Deliverables“), all patents, copyrights, trade secrets or other proprietary rights in or to the Deliverables are and will be the sole and exclusive property of Customer, and Tropos Alerts hereby assigns ownership of Deliverables to Customer. Notwithstanding the foregoing, Tropos Alerts shall own all worldwide right, title and interest in and to the intellectual property rights embodied in the Tropos Alerts Reserved Technology, whether or not such Tropos Alerts Reserved Technology is incorporated into any Customer Deliverables. Nothing in these Terms shall prevent Tropos Alerts from creating derivative works based on the Tropos Alerts Reserved Technology, developing, modifying, using, marketing, distributing or otherwise commercially exploiting the Tropos Alerts Reserved Technology in any manner. Tropos Alerts reserves all rights not expressly granted to Customer under these Terms. Nothing contained herein shall be construed as limiting Tropos Alerts’ rights to commercially use or market in the conduct of Tropos Alerts’ business general ideas, concepts, know-how, knowledge, market analysis, frameworks, techniques, tools, approaches, and methodologies or other residual values possessed or known to Tropos Alerts or learned or developed during the course of providing the Services, without obligation of any kind to Customer.
Limited Warranty. Tropos Alerts represents and warrants that Tropos Alerts will perform the Services in a good and workmanlike manner and in substantial accordance with the express terms of the SOW. Customer must notify Tropos Alerts of any perceived defect in Services or Deliverables within 30 days of the completion or delivery of the particular task or Deliverable at issue. As Tropos Alerts’ sole obligation and Customer’s sole and exclusive remedy for breach of this warranty, Tropos Alerts will re-perform any defective services at no additional cost to Customer.
Updated: Nov 13th, 2017