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API License Agreement

Last Updated: June 10, 2022

This API License Agreement (“Agreement”) governs the implementation and use of the APIs and API Specification of Tulip Interfaces, Inc. and/or its affiliates (“Tulip”) to allow a Software Application to interoperate with the Tulip Platform. If You are entering into this Agreement on behalf of an organization, You represent You have the authority to bind Your organization to this Agreement. If You do not have that authority, or if You do not agree with the terms of this Agreement, You may not implement the Tulip APIs or use the API Specification. By clicking a button denoting acceptance of this Agreement, or by implementing, downloading or otherwise accessing the Tulip APIs, You agree to be legally bound by the terms of this Agreement. This Agreement is effective between You and Tulip as of the date of Your acceptance. You and Tulip are each individually referred to herein as a “Party,” and collectively as “Parties.” For customers of Tulip who have a Terms of Service or similar agreement (“TOS”) in effect between such customer and Tulip, this Agreement shall govern such customer’s use of the Tulip APIs. This Agreement may change from time to time. When Tulip makes changes to this Agreement, Tulip will update the “Last updated” date at the beginning of this Agreement. All changes will be effective from the date of publication unless otherwise stated. By clicking a button denoting acceptance of this Agreement, or by implementing, downloading or otherwise accessing the Tulip APIs, You agree to be legally bound by the amended terms of this Agreement.

1. Definitions

“API Limits” means restrictions (e.g., rate limits and concurrency limits) to Your API calls.

“Application Programming Interface” or “API” means a collection of routines, classes, function parameters, protocols, webhooks, related libraries and other instructions provided in Source Code or Object Code form.

“API Specification” means a written description or definition of the routines, classes, function parameters, protocols, webhooks, related libraries and other instructions that allow a Software Application to interoperate with the Tulip Platform, and as substantially described at: http://developers.Tulip.com/documentation/rest/.

“Feedback” means suggestions or comments provided by You to Tulip that are related to Tulip products (e.g., Tulip APIs or the Tulip Platform) or to future Tulip products, modules and/or services.

“Forking” means the act of creating a distinct and/or separate set of APIs that are based upon, derived from, or a modification of the Tulip APIs.

“Hardware” means Tulip Hardware or third party hardware components that access or otherwise interoperate with the Tulip Platform via the Tulip APIs.

“Object Code” means Source Code that has been interpreted, compiled or otherwise translated into a machine readable form.

“Software Application” means software in Object Code or Source Code form that accesses or otherwise interoperates with the Tulip Platform via the Tulip APIs.

“Source Code” means computer code in a human readable form and as such computer code that has not been interpreted or compiled.

“Tulip API” means a collection of routines, classes, function parameters, protocols, related libraries, tools and other instructions provided in Source Code or Object Code form that allow access to or interoperability with the Tulip Platform by a Software Application, Hardware, or third party platforms or services.

“Tulip Hardware” means Tulip IO Gateway, Tulip Light Kit, Tulip EdgIO and Tulip EdgeMC and other hardware products Tulip may make generally commercially available to its customers for purchase from time to time and which access or otherwise interoperate with the Tulip Platform via the Tulip APIs.

“Tulip Platform” means (a) Tulip’s websites (mobile or localized versions and related domains and subdomains); (b) Tulip’s software and services; and (c) Tulip Hardware(the object code version of Tulip’s proprietary software product referred to as Tulip Player).

“Use” means a right to perform or reproduce (as defined under 17 U.S.C. § 101 et seq.) or other applicable copyright statute but does not include any right of sublicense or distribution.

“You” or “Your” means you, the person entering into this Agreement or, if you are entering into this Agreement on behalf of an organization (or implementing the API Specification and associated Tulip APIs on behalf of or in a product owned or licensed by an organization), that organization.

2. Licenses and Restrictions

A. Tulip API License. Subject to the provisions of this Agreement, Tulip grants You a world-wide, revocable, non-exclusive license, under Tulip copyrights, to Use the Tulip APIs to facilitate the interoperability of the Tulip Platform and the Software Application solely. You are granted this license provided that You adhere to the API Limits published or otherwise provided to You as a condition to receiving this license, and that You do not attempt to circumvent any such API Limits.

B. Tulip API Specification License. Tulip grants You a world-wide, non-exclusive, royalty-free, revocable license, under Tulip copyrights, to Use the API Specification to enable interoperability between the Software Application and the Tulip Platform.

C. Feedback License to Tulip. If You provide Feedback to Tulip, You grant to Tulip a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, license, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same without restriction or obligation of any kind, on account of confidential information, intellectual property rights or otherwise, and may incorporate into its products and services any service, product, technology, enhancement, documentation or other development (“Improvement”) incorporating or derived from any Feedback with no obligation to license or to make available the Improvement to you or any other person or entity.

D. Tulip API License Restrictions. Tulip retains legal title to the Tulip APIs under this Agreement, and You agree not to delete or alter any copyright (e.g., “© Tulip Interfaces, Inc.”) or other proprietary notices signifying Tulip’s ownership of this legal title. Additionally, You agree to and acknowledge the following license restrictions: (i) no right to commercially perform, distribute, or use the Tulip APIs (or sublicense any of the foregoing rights) is granted under this Agreement; (ii) none of the following rights are granted with respect to the Tulip APIs: the right to distribute, publicly display, or to create derivatives (e.g., a superset or subset of the Tulip APIs); and (iii) the Tulip APIs shall not be used to access a service other than the Tulip Platform. Tulip may limit the number and/or frequency of API requests to the Tulip Platform, or any use of the APIs that could damage, disable, overburden, impair or otherwise interfere with the Tulip Platform.

E. API Specification License Restrictions. Tulip retains legal title to the API Specification under this Agreement and You agree not to delete or alter any copyright (e.g., “© Tulip, Interfaces, Inc.”) or other proprietary notices signifying Tulip’s ownership of this legal title. Further, You agree to the following license restriction: You shall not make an unreasonable number of reproductions of the API Specification. Further, for avoidance of doubt, no right to: (i) distribute; (ii) sublicense; (iii) publicly display; or (iv) create derivatives of the API Specification is granted to You hereunder.

3. Warranty, Disclaimer, Indemnity, and Limitation of Liability

A. Forking. You represent and warrant that You have not and will not engage in Forking or otherwise attempt to modify or reverse engineer the Tulip APIs. Further, You represent and warrant that You have not and will not distribute a set of APIs or a development kit that is based upon or otherwise a modification of, the Tulip APIs, including being a subset or superset of the Tulip APIs.

B. Branding. You acknowledge that, unless separately negotiated with Tulip, no license (implied or explicit) to use Tulip trademarks (registered or otherwise), logos, or word marks, and the goodwill associated therewith is provided herein.

C. Disclaimer of Warranties. You acknowledge THAT the Tulip APIs AND THE API SPECIFICATION are provided “AS IS,” without warranty of any kind, and may not be functional on any machine or in any environment. TO THE EXTENT PERMITTED BY APPLICABLE LAW, TULIP DISCLAIMS ALL WARRANTIES RELATING TO THE TULIP PLATFORM, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Tulip makes no representations or warranties regarding the suitability of the Tulip APIs OR THE API SPECIFICATION for your intended requirements or purposes, including for use with any Software Application. Further, Tulip makes no representations or warranties regarding the integrity of data that You TRANSMIT, transfer, store, obtain or receive through use of the Tulip APIs. Tulip is not obligated to maintain or support the Tulip APIs, or to provide you with updates, fixes, or services related thereto. You assume all risk arising from use of the Tulip APIs, including, without limitation, the risk of damage to Your computer system, Software Application, the corruption or loss of data, and compliance with ALL applicable laws and regulations (including laws and regulations related to privacy and data protection).

D. Indemnity. You shall defend, indemnify and hold harmless Tulip, its affiliates and their respective officers, directors, employees, agents and representatives from any and all claims, damages, liabilities, suits, demands, proceedings, actions, expenses, settlements, fines, penalties, costs and fees (including reasonable attorneys’ fees) arising from (a) the Software Application, (b) any integrations you create using the Tulip APIs to connect to the Software Application, Hardware or any third party platform or services), (c) your use of the Software Application or the Tulip APIs, or (d) your violation of any applicable laws, rules, or regulations, including, without limitation, intellectual property infringement and any harm caused to a third party. The Parties agree to comply with the following process when Tulip seeks indemnification under this section and specifically that Tulip is to: (i) promptly give You written notice of the claim, provided that, in the event Tulip fails to give you prompt written notice you will not be relieved of your obligations under this Section 3.D, except to the extent your defense of the claim was materially prejudiced by such delay or failure; (ii) give You sole control of the defense and settlement of the claim (provided that You will not accept any settlement which does not provide Tulip with a complete release or places restrictions on Tulip without Tulip’s prior written consent, Tulip may in its sole discretion participate in the defense of any claim through its own counsel, and at its own expense, and if you fail to promptly assume defense of the claim, Tulip may assume defense of the claim at your sole cost and expense); and (iii) provide You, at Your cost, all reasonable assistance.

E. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TULIP OR ITS LICENSORS BE RESPONSIBLE OR LIABLE, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR: (I) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL EXEMPLARY, PUNITIVE, OR OTHER PECUNIARY DAMAGES, INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES OR PROFITS, LOSS, CORRUPTION OR INACCURACY OF DATA, LOSS OF USE, LOSS OF GOODWILL, LOSS OF BUSINESS, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY; (II) ANY MATTER BEYOND ITS REASONABLE CONTROL; OR (III) ANY DIRECT DAMAGES IN THE AGGREGATE OVER $100.

4. Confidentiality. As used herein, Confidential Information means:- (i) any Feedback that You provide to Tulip pursuant to Section 2.C; and (ii) any Tulip business or technical information that is disclosed to You in connection with this Agreement, including, but not limited to, any information relating to Tulip’s plans, business opportunities, or research and development. Confidential Information excludes any information that: (a) is or becomes generally known to the public other than as a result of Your breach of this Agreement; (b) is rightfully known to You at the time of disclosure without restrictions on use or disclosure; (c) is independently developed by You, without access to or use of any Confidential Information; or (d) is rightfully obtained by You from a third party who has the right to disclose it and who discloses it without restrictions on use or disclosure. You will maintain all Confidential Information in strict confidence and will not disclose Confidential Information to any third party, other than a contractor who needs to know for the purposes of this Agreement and who agrees in writing to treat the Confidential Information on terms no less protective than this Agreement. You will be liable for any such contractor’s failure to treat the Confidential Information in accordance with this Agreement. You will not use Confidential Information, except as necessary for the performance of this Agreement.

5. Term and Termination

A. Term. This Agreement will commence on the date You implement the Tulip APIs or the API Specification, and will continue until terminated as provided in Section(s) 5.B or Section 5.C.

B. Termination for Convenience. Tulip may terminate this Agreement for any reason with thirty (30) days’ advance notice to You. Tulip may, in its sole discretion, reinstate Your ability to Use the APIs or API Specification. You may terminate the Agreement at any time by ceasing to Use the Tulip APIs, the API Specification, and disabling Your Software Application’s ability to Use the Tulip APIs.

C. Termination for Breach. Tulip may terminate this Agreement immediately upon written notice if You breach this Agreement. Tulip may, at its sole discretion, reinstate Your ability to Use the APIs or API Specification if You demonstrate that You have remedied any such breach.

D. Emergency Suspension. If Tulip becomes aware of a situation where Your use of the Tulip APIs may unduly disrupt its delivery of the Tulip Platform to third parties (e.g., customers of Tulip) generally, or if Tulip detects unauthorized third party access to the Tulip Platform (collectively referenced herein as an “Emergency”), Tulip may immediately suspend the offending use (and any rights licensed under this Agreement that enable such use). Any such suspension shall be to the minimum extent and duration needed to respond to the Emergency. At its sole discretion, Tulip may reinstate the use (and any rights granted in this Agreement that enable such a use) where the Emergency has been resolved.

E. Survival Upon Termination. Upon termination of this Agreement, Your licenses to the Tulip APIs, and the API Specification under Sections 2.A (Tulip API License) and 2.B (Tulip API Specification License) shall immediately terminate. Notwithstanding the foregoing, Sections 2.C (Feedback License to Tulip), 3 (Warranty, Disclaimer, Indemnity, and Limitation of Liability), 4 (Confidentiality), and 6 (Miscellaneous) will survive any termination of this Agreement.

6. Miscellaneous

A. Injunctive Relief. You acknowledge a violation of this Agreement may cause irreparable harm to Tulip that is not adequately compensable by monetary damages. In addition to other relief, You agree that temporary and permanent injunctive relief may be an appropriate remedy to prevent any actual or threatened violation hereunder and that Tulip shall be entitled to seek immediate injunctive relief, as well as such further relief as may be granted by a court of competent jurisdiction.

B. No Support. Unless otherwise agreed to in writing, Tulip shall not be responsible for providing any support, maintenance, or other services (or level of service) to You or a user of the Software Application for the Tulip APIs.

C. Export Laws. You agree to comply fully with all U.S. export laws and regulations to ensure that neither the Tulip APIs nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.

D. Integration; Order of Precedence. Unless otherwise agreed to in writing between the Parties, this Agreement constitutes the entire agreement and supersedes any prior agreements (including a Tulip Application Programming Interface License Agreement), and any prior or contemporaneous understandings, representations and other communications (whether written or oral) between the Parties with regard to the subject matter hereof. The terms of this Agreement shall supersede and control over any conflicting or additional terms and conditions of any order, acknowledgement, or confirmation or other document issued by You, unless the Parties mutually agree in writing that such terms and conditions shall modify, supersede and control in the event of any inconsistency with this Agreement.

E. Severability. If any provision of this Agreement, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Agreement will continue in full force and effect and the application of such provision will be interpreted so as reasonably to effect the intent of the Parties.

H. Tulip’s Right of Modification. At Tulip’s discretion, Tulip may modify the terms of this Agreement upon thirty (30) days’ notice to You. If You continue using Tulip’s APIs after the date such modifications become effective, you will be deemed to have accepted the modifications. If you do not wish to accept such modifications, you may terminate this Agreement in accordance with Section 5.B. You acknowledge and agree that Tulip may modify this Agreement, the Tulip Platform, and the Tulip APIs from time to time (a “Modification”). You will be notified of a Modification to this Agreement through notifications or posts on the Tulip website (“Modification Notice”). You further acknowledge and agree that such Modifications may be implemented at any time and without any notice to You. You shall, within thirty (30) days from the Modification Notice (or such shorter period of time specified in the Modification Notice (the “Conformance Period”) comply with such Modification(s) by implementing and using the most current version of the API. You continued access to or use of the Tulip Platform or Tulip APIs following the Conformance Period shall constitute binding acceptance of the Modification(s) at issue.

I. Assignment. You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of this Agreement or Your rights under this Agreement or delegate performance of Your duties under this Agreement without Tulip’s prior consent. Tulip may assign this Agreement in its entirety whether by operation of law or otherwise without Your prior written consent.

J. Implied License and Estoppel. Nothing in this Agreement shall be construed as granting a license via the doctrines of Implied License or Legal Estoppel to rights beyond what is expressly granted under this Agreement. Further, nothing in this Agreement shall be deemed a waiver of Tulip’s intellectual property rights in the Tulip Platform, or other Tulip technologies. These intellectual property rights are reserved to Tulip. Through agreeing to the terms of this Agreement, You acknowledge that You are only licensed to the rights expressly enumerated in this Agreement and that the actions of the parties and/or the consideration granted under this Agreement is solely for these rights and for no others.

K. Governing Law; Notices.

This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts, without reference to its conflict-of-laws principles. Any claim, action, suit or proceeding arising out of or in connection with this Agreement shall be heard and determined in the courts of Middlesex County, Massachusetts, and each of the parties hereto hereby consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom in any such claim, action, suit or proceeding) and irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to such venue for any such claim, action, suit or proceeding in any such court or that any such claim, action, suit or proceeding which is brought in any such court has been brought in an inconvenient forum.

Except as stated in 6.H above, notices under this Agreement must be in writing and are deemed to have been given upon (i) personal delivery, (ii) the third business day after mailing, (ii) the first business day after sending by email. Notices to Tulip must be addressed to: “Application Programming Interface License Agreement” and Tulip Interfaces, Inc., 77 Middlesex Ave, Suite A, Somerville, MA 01245, with a copy to our General Counsel at the same address.

L. Relationship of the Parties

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.