kroo USA, Inc. (“Company”) owns and provides access to its software platform (the “Kroo Platform”). These Terms of Service (“Terms”) govern Customer’s access to and use of the Kroo Platform. “Customer” includes the entity signing the applicable Order Form and its Affiliates and Users, and Customer is responsible for their compliance with these Terms. By signing an Order Form that references these Terms, or by accessing or using the Kroo Platform, Customer agrees to be bound by these Terms, any Order Form, and Company’s Privacy Policy (https://www.getkroo.com/privacy), each of which is incorporated by reference. If Customer does not agree, Customer must not access or use the Kroo Platform. If you accept on behalf of Customer, you represent that you have authority to bind Customer.
This Services Agreement (“Agreement”) is entered into on the Effective Date between kroo USA, Inc. (“Company”) and the Customer listed on the executed Order Form (“Customer”). This Agreement includes and incorporates the Order Form, as well as these Terms and Conditions. Any conflicting terms in a related purchase order or similar form shall have no force or effect, even if signed by the parties after the Effective Date.
Company agrees to provide the data management services specified in the Order Form.
The Services are subject to the initial capacity and scope set forth in the Order Form. Customer has the option to expand the Services scope at any time during the Term for:
The parties may agree to Company's provision of custom services as specified in the Order Form, including consulting, implementation, or training services (collectively, "Custom Services"). Custom Services will be governed by the fees and terms set forth in the applicable Order Form and these Terms.
Customer will pay Company the then-applicable fees described in the Order Form for the Services and any Custom Services (the “Fees”). The Fees are subject to the terms of the Order Form.
If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and agrees to pay the additional fees in the manner provided herein.
Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon sixty (60) days prior notice to Customer (which may be sent by email).
If Customer believes that Company has billed incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Customer waives any right to dispute charges made more than 60 days prior.
Either party may also terminate this Agreement upon thirty (30) days’ written notice if the other party materially breaches any of the terms or conditions of this Agreement, provided the breach remains uncured at the end of the thirty (30) day notice period. Company may terminate without notice in the case of nonpayment.
Notwithstanding Section 5.2, Company may immediately suspend Customer's access to the Services, in whole or in part, if Company determines (in its sole discretion) that:
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services shall be performed in a professional and workmanlike manner.
Company will provide Technical Support to Customer via telephone, electronic mail, and Microsoft Teams.
Customer's sole and exclusive remedy, and Company's entire liability, in connection with Service availability shall be that for each period of "Downtime" lasting longer than twenty-four hours, Company will credit Customer 1% of Service fees for each period of six hours or more consecutive hours of Downtime; provided that no more than one such credit will accrue per day.
Customer represents, covenants, and warrants that it will use the Services only in compliance with Company’s standard published policies then in effect and all applicable laws and regulations. Customer shall be responsible for:
Customer will not, directly or indirectly:
Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with ongoing support, and (c) all intellectual property rights related to any of the foregoing. No rights or licenses are granted except as expressly set forth herein.
Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies. Company will be free (during and after the Term) to:
Company commits to maintaining reasonable technical and organizational security measures consistent with industry standards to protect Customer Data. Detailed information regarding Company's security and compliance posture is available in Company's Trust Center.
The Receiving Party agrees: (i) to take reasonable precautions to protect the Disclosing Party's Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.
The obligation to protect Proprietary Information shall not apply with respect to any information after five (5) years following the disclosure thereof, except for information constituting a trade secret under applicable law, for which the confidentiality obligations shall survive indefinitely. The obligations shall also not apply to any information that the Receiving Party can document:
Company warrants that it shall perform the Services and any Custom Services in a professional and workmanlike manner. Company does not warrant any specific results from the Custom Services.
COMPANY MAKES NO WARRANTIES REGARDING THE ACCURACY, COMPLETENESS, OR TIMELINESS OF ANY DATA ACCESSED THROUGH THE SERVICES. CUSTOMER IS SOLELY RESPONSIBLE FOR VALIDATING ALL DATA FOR ITS INTENDED USE.
COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of Section 7 or otherwise from Customer’s use of Services.
Company will defend, indemnify and hold harmless Customer against any third-party claim or action to the extent it alleges that the Kroo Platform, when used in accordance with this Agreement, infringes any valid patent, copyright, or trademark of such third party. Company shall have no liability or obligation to indemnify Customer to the extent the infringement claim arises from:
If the Kroo Platform is held to infringe, or Company believes it may be held to infringe, Company may, at its option and expense, either (i) modify the Kroo Platform so it is non-infringing, (ii) procure the right for Customer to continue using the Kroo Platform, or (iii) terminate this Agreement and refund the unused portion of any prepaid Fees. Company’s obligations under this Section 10.2 are subject to and limited by the aggregate liability cap set forth in Section 11.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR:
THE AGGREGATE MAXIMUM LIABILITY OF COMPANY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY INDEMNIFICATION OBLIGATIONS, SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR EVENT GIVING RISE TO THE LIABILITY.
This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. The parties agree to submit to the exclusive jurisdiction of the state and federal courts located in Delaware.
This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent.
This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement.
All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
No agency, partnership, joint venture, or employment is created as a result of this Agreement.
In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
Customer agrees that Company may use Customer’s name and logo on Company’s websites, customer lists, and marketing materials to identify Customer as a user of the Services. Customer agrees to reasonably cooperate with Company to serve as a reference account upon request.
Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
All notices under this Agreement will be in writing and will be deemed to have been duly given:
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