Last Updated: April 1, 2021
These Terms of Service (“Terms of Service”) are entered into by and between Tulip Interfaces, Inc. a Delaware corporation with offices at 561 Windsor St. 2nd Fl, Somerville, MA, 02143 (“Tulip” ) and the entity or person placing an order for or accessing the Tulip Offering (“Customer” or “you”). If you are accessing or using Tulip Offering on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company. All defined terms used herein shall have the meanings accorded to such terms herein, including as set forth on Exhibit A (Definitions) attached hereto and incorporated by reference herein.
Agreement; Effective Date: These Terms of Service together with all exhibits and addenda hereto and documents referenced and linked to herein and all Order Forms and Statements of Work entered into by the Parties hereunder (collectively, the “Agreement”) permit Customer to order Tulip Products and Services (collectively, sometimes referred to herein as the “Tulip Offering”) from Tulip and its authorized resellers, sets forth the terms and conditions between the Parties with respect thereto, and governs Customer’s access and use of the Tulip Offering. In the event of any conflict between the provisions in these Terms of Service and any Order Form or Statement of Work, the terms of such Order Form or Statement of Work, as applicable, shall prevail. In the event of any conflict between the provisions in these Terms of Service and any exhibits and addenda hereto or any documents referenced and linked to herein, the terms of such exhibits and addenda hereto or any documents referenced and linked to herein, as applicable, shall prevail. No terms or conditions stated in a Customer purchase order or in any other Customer provided business forms or order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. The “Effective Date” of the Agreement is the date which is the earlier of (a) Customer’s initial access to any Tulip Product or Services through any online provisioning, registration or order process with Tulip or its authorized resellers or (b) the effective date of the first Order Form that references these Terms of Service and is entered into between Customer and Tulip or between Customer and Tulip’s authorized resellers.
Modifications to Terms of Service: From time to time, Tulip may modify these Terms of Service; provided, that any modifications which are adverse to Customer will not become effective until renewal of Customer’s then-current Subscription Term or entry into a new Order Form. Tulip will use reasonable efforts to notify Customer of the changes through communications via Customer’s account, email, posting through the Tulip Platform or other means. Customer may be required to click to accept or otherwise agree to the modified Terms of Service before renewing a Subscription Term or entering into a new Order Form, and, in any event, continued use of the Tulip Offering after the updated version of these Terms of Service go into effect will constitute Customer’s acceptance of such updated version.
Orders by Affiliates: The Parties agree that an Affiliate of Customer may place orders for the Tulip Offering by executing a separate Order Form and/or Statement of Work with Tulip in which the Customer Affiliate agrees to be bound by all terms and conditions of this Agreement, in which case all references to "Customer" in the Agreement shall mean the Customer Affiliate which executes the Order Form and/or Statement of Work; provided, however, that Customer shall remain responsible for the compliance of its Affiliates with the terms of the Agreement and the Order Forms and Statements of Work, including without limitation payment of all fees due thereunder.
ACCEPTANCE: BY INDICATING YOUR ACCEPTANCE OF THESE TERMS OF SERVICE OR DOWNLOADING, ACCESSING OR USING ANY TULIP PRODUCTS OR SERVICES, CUSTOMER AGREES TO BE BOUND BY ALL TERMS AND CONDITIONS OF THE AGREEMENT. IF YOU DO NOT AGREE TO THE AGREEMENT, PLEASE DO NOT USE THE TULIP PRODUCTS OR SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THE AGREEMENT IS LEGALLY BINDING UPON IT. THE AGREEMENT CONTAINS MANDATORY ARBITRATION PROVISIONS THAT REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS. PLEASE READ IT CAREFULLY.
1. Tulip Offering.
1.1. Overview. Subject to the terms and conditions of the Agreement, including without limitation payment of all fees under each Order Form and Statement of Work, Customer will order, and Tulip will deliver, the Tulip Products and Services ordered by a Customer in accordance with and pursuant to each Order Form and Statement of Work. Customer may access and use the Tulip Products and Services solely for Customer’s own internal business purposes and not for the benefit of any third party. The Tulip Platform and the Tulip Software is licensed to Customer on a subscription basis for the limited Subscription Term set forth in the applicable Order Form. Customer acknowledges and agrees that Customer’s and its Users’ access and use of the Tulip Products and Services shall at all times comply with the Documentation and any use restrictions or limitations set forth herein or in the applicable Order Form.
1.2. Grant of Rights. Subject to Customer’s compliance with the terms and conditions in this Agreement, the Documentation, and each Order Form Tulip grants Customer the following rights:
1.2.1. Tulip Platform. Tulip grants to Customer a worldwide, revocable, non-exclusive, non-transferable, non-sublicensable right during the Subscription Term to authorize: (a) Admin Users to access and use the Tulip Platform solely for purposes of developing the Customer Applications and setting up and maintaining a cloud backend for Applications deployed using the Tulip Platform, and (b) App Users to indirectly, through the use of an Application, access the portion of the Tulip Platform necessary to enable the App User to access and use the Applications, including without limitation to download the Applications from the Tulip Platform to the Tulip Player and to access and use the Applications as deployed using the Tulip Player; in each case, solely for Customer’s own internal business purposes. If Tulip makes access to a Sandbox instance of the Tulip Platform available to Customer, Customer’s right to use the Sandbox environment shall be limited to evaluation and testing features and functionality of the Tulip Platform and Customer shall not use a Sandbox environment for production purposes. Tulip is responsible for providing the infrastructure required to provide the Tulip Platform and Tulip may engage third party service providers to host the Tulip Platform and provide certain functionality of the Tulip Platform on Tulip’s behalf. Tulip will be responsible for the compliance of such third party service providers with Tulip’s obligations to provide the Tulip Platform pursuant to this Agreement. Customer shall not exceed the total subscriptions purchased or any other limitations on usage and restrictions set forth in the Order Form or in this Agreement. Customer will buy Concurrent Authorized User (“CAU”) licenses or Named Users. The number of CAU licenses, the number of Maximum Concurrent Authorized Users and the number of Named Users shall be as set forth in each Order Form. If Tulip believes that Customer has exceeded its rights under this Agreement or an Order Form through increased usage that is not otherwise in accordance with the terms of the applicable Order Form, and Customer does not contest such allegation or it is ultimately determined that such belief was correct, Tulip shall have the right to invoice Customer for such increased usage using the rates set forth in the applicable Order Form, including any discounts contained therein.1.2.2. Tulip Player. Tulip grants to Customer a non-exclusive, non-transferable, worldwide, revocable, nonsublicensable license during the Subscription Term to download, install, execute and use Tulip Player on Supported Operator Facing Devices.
1.2.2. Tulip APIs. Tulip grants Customer a non-exclusive, non-transferable, worldwide, revocable, nonsublicensable license during the Subscription Term to use any Tulip APIs made available as part of the Tulip Platform for the sole purposes of accessing and using the Tulip Platform for Customer’s own internal business purposes. Tulip reserves the right to place limits on access to such Tulip APIs (e.g., limits on numbers of calls or requests). Further, Tulip may monitor Customer’s usage of such Tulip APIs and limit the number of calls or requests Customer may make if Tulip believes that Customer’s usage is in breach of this Agreement or may affect the availability, integrity or security of the Tulip Platform or otherwise harm Tulip, its other customers or the Tulip Platform (or otherwise impose liability on Tulip).
1.2.3 Tulip Content and SDK. To the extent Tulip grants to Customer a non-exclusive, non-transferable, worldwide, revocable, nonsublicensable license during the Subscription Term to use, copy and deploy the Tulip Content and the Tulip SDK in each case solely for Customer’s own internal business purposes and solely in connection with Customer’s use of the Tulip Offering. Customer’s sole and exclusive remedy for any issues with the Tulip Content and the Tulip SDK is to cease use of the Tulip Content and the Tulip SDK. Further, if Customer does not install an Update to Tulip Content and/or the Tulip SDK) the Tulip Content and/or the Tulip SDK may cease to operate. s.
1.3. Trial Subscriptions. If Customer receives a trial or evaluation subscription to a Tulip Product or Service (a “Trial Subscription”), then Customer may use the Tulip Products and Services which are subject to the Trial Subscription in accordance with the Agreement for the period granted by Tulip in the Order Form for the Trial Subscription (the “Trial Period”). Trial Subscriptions are permitted solely for Customer’s use to determine whether to purchase a subscription to the Tulip Offering and may have limited functionality and features. Customer’s right to access and use the Tulip Offering will terminate at the end of the Trial Period unless Customer elects to purchase a non-trial or evaluation version of the Tulip Offering under a separate Order Form with Tulip. Tulip has the right to terminate a Trial Subscription at any time for any reason. Notwithstanding anything to the contrary in the Agreement, the warranties, indemnities and other obligations of Tulip hereunder shall not apply to Trial Subscriptions all of which are provided “as is” and “as available”. Further, any data Customer enters into the Tulip Platform, and any customizations made to the Tulip Offering by or for Customer, during Customer’s Trial Subscription will be permanently lost unless Customer orders a subscription to the same Tulip Offering as those covered by the Trial Subscription or exports such data, before the end of the Trial Period.
1.4. Beta Versions. Tulip may, from time to time in its sole discretion, make available to Customer Beta Versions. Use of Beta Versions is optional and is at Customer’s sole risk. Notwithstanding anything to the contrary in the Agreement, the warranties, indemnities and other obligations of Tulip hereunder shall not apply to Beta Versions, all of which are provided “as is” and “as available”.
1.5. General Restrictions. Customer will not (and will not permit any third party to): (a) rent, lease, provide access to, sublicense, transfer or otherwise make available the Tulip Offering to a third party; (b) use the Tulip Offering to provide, or incorporate the Tulip Offering into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Tulip Offering, except to the extent expressly permitted by applicable law (and then only upon advance notice to Tulip); (d) adapt, alter, modify, improve, translate or create derivative works of the Tulip Offering; (e) copy or modify the Tulip Offering or any Documentation, or create any derivative work based on any of the foregoing; (f) create Internet "links" to or from the Tulip Offering or "frame" or "mirror" any content forming part of the Tulip Offering, other than on Customer's own intranets or otherwise for its own internal business purposes; (g) remove or obscure any copyright, proprietary or other notices contained in the Tulip Offering; or (h) publicly disseminate information regarding the performance of the Tulip Offering.
1.6. Use by Contractors and Affiliates. The rights set forth in this Section 1 may be exercised by Customer’s Contractors and Affiliates for the sole benefit of Customer; provided, that (i) Customer requires such third parties to execute a written agreement with Customer that is at least as protective of the Tulip Offering and Tulip’s Confidential Information as this Agreement and which does not grant any greater rights than those granted to Customer in Section 1 and includes all restrictions set forth in this Agreement and the applicable Order Form and (ii) Customer shall be responsible for any breach of the Agreement by any such third party.
1.7. Modifications. Tulip reserves the right to modify the Tulip Offering from time to time, including without limitation implementing Updates, and Tulip will update the applicable Documentation accordingly. If any such modification materially and adversely reduces the functionality of a Tulip Product or Service, Customer sole and exclusive remedy shall be for Customer to terminate its subscription for the affected Tulip Product or Service. Tulip may condition the implementation of new features, functionality or other modifications on Customer’s payment of additional fees provided that Tulip generally charges other customers for such modifications. Further, the support and service level availability terms described in the Tulip Support Program and the SLA may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices; provided that any modifications that materially decrease Tulip obligations as compared to those reflected in such terms as of the Effective Date shall not take effect until renewal of Customer’s Subscription Term.
1.8. Third Party Platforms. The Tulip Platform may support connections with certain Third-Party Platforms. In order for the Tulip Platform to communicate with such Third-Party Platforms, Customer may be required to input credentials to authorize the Tulip Platform to connect to Customer’s account in order to transmit and receive information and data from such Third-Party Platforms as directed or enabled by Customer. Customer is solely responsible for complying with any relevant terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. Customer acknowledges and agrees that Tulip has no responsibility or liability for any Third-Party Platform or any Customer Data exported to a Third-Party Platform or for verifying any Customer Data that Customer imports from a Third-Party Platform.
2. Tulip Support Program; Updates.
2.1 Tulip Support Program. Subject to Tulip’s receipt of Customer’s payment of all applicable fees and Customer’s installation of all Updates, Tulip shall provide Customer with support services pursuant to the Tulip Support Program ordered by Customer on the associated Order Form.
2.2 Updates. Tulip will provide Customer with all Updates for no additional fee, together with all required amendments to the associated Tulip Product Documentation. Updates to the Tulip Platform hosted by Tulip will be deployed by Tulip. Customer will be responsible for installing Updates to Tulip Software and Tools and all Updates must be promptly installed by Customer. If Customer does not install a required Update, the Tulip Software or Tools, as applicable, may cease operating or may no longer connect to the Tulip Platform or Supported Devices. Further, if Tulip provides an Update to the Tulip SDK or Tulip APIs, Customer will use the updated Tulip SDK and updated Tulip APIs and cease use of the non-updated versions. New features, functionality and products for which Tulip charges a separate fee or which Tulip does not make generally commercially available to customers under the Tulip Support Program are not included as Updates or as part of support. The content and timing of all Updates shall be decided upon by Tulip in its sole discretion.
3. Professional Services.
Tulip will provide the professional consulting services (“Professional Services”) purchased in the applicable Order Form. The scope of Professional Services will be as set forth in a Statement of Work referencing this Agreement and executed by both parties describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information (“SOW”). Unless Professional Services are provided on a fixed-fee basis, Customer will pay Tulip at the per-hour rates set forth in the Order Form or SOW (or, if not specified, at Tulip then-standard rates) for any excess services. Customer will reimburse Tulip for reasonable travel and lodging expenses as incurred. Customer shall have the right to use any Deliverables delivered as part of the Professional Services in support of Customer’s authorized use of the Tulip Offering, subject to the terms and conditions of the Agreement including without limitation the licenses, rights and restrictions set forth in Section 1 above and in the Order Form and applicable SOW. The parties acknowledge that Tulip does not perform custom development work as part of the Professional Services and that the Deliverables provided by Tulip in the performance of the Professional Services may include, among other things, configuration and implementation of the Tulip Offering, modifications to the Tulip Offering, training materials and Documentation. Accordingly, Tulip will retain all right, title and interest in and to any such Deliverables, including without limitation all Intellectual Property Rights therein and thereto. For purposes hereof, “Deliverables” means any and all technology, work product, software code and other deliverables delivered pursuant to an SOW, including without limitation any and all derivatives, enhancements and modifications thereof.
4. Customer Responsibilities for the Tulip Platform.
4.1. Access Credentials. Customer will safeguard, and ensure that all Users safeguard the Access Credentials. Customer will be responsible for all acts and omissions of Users. User IDs are granted to individual, named persons and may not be shared. Customer agrees to: (1) keep its Access Credentials secure and confidential and not to allow any of Customer’s Admin Users to provide their Access Credentials to anyone else; and (2) not permit others to use Customer’s Access Credentials. Customer will notify Tulip immediately if it learns of any unauthorized use of any Access Credentials or any other known or suspected breach of security with respect to the Tulip Platform or Customer’s Access Credentials. Customer shall be solely responsible for ensuring that its Users comply with the terms of this Agreement and the Acceptable Use Policy. Customer will promptly notify Tulip of any suspected or alleged violation of the terms and conditions of this Agreement or the Acceptable Use Policy and will cooperate with Tulip with respect to: (i) investigation by Tulip of any suspected or alleged violation of this Agreement or the Acceptable Use Policy, and (ii) enforcement of this Agreement and the Acceptable Use Policy. Tulip reserves the right, in its sole discretion and without liability to Customer or its Users, to take any action Tulip deems necessary or reasonable to ensure the security of the Tulip Platform and Customer’s Access Credentials and account, including terminating Customer’s access or the access of any of Customer’s Users, changing passwords, or requesting additional information to authorize activities related to Customer’s account. If any User who has access to a user ID is no longer an employee (or Contractor) of Customer, then Customer will immediately delete such user ID and otherwise terminate such User’s access to the Tulip Platform.
4.2. Customer Access. Customer acknowledges and agrees that Customer’s and its Users’ access and use of the Tulip Platform is dependent upon access to telecommunications and Internet services. Customer will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Tulip Platform, including, without limitation, all costs, fees, expenses, and taxes of any kind related to the foregoing. Tulip will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications or Internet services or any such hardware or software. Tulip may provide notice to Customer from time to time of the version(s) of those products required in order to for Customer and its Users to use the Tulip Platform (e.g., supported browser versions). Customer acknowledges that if Customer desires to protect Customer’s transmission of data and/or files to Tulip, it is Customer’s responsibility to use a secure encrypted connection to communicate with and/or utilize the Tulip Platform.
5. Fees; Payment.
5.1. Fees; Payment. In consideration for the rights granted hereunder, Customer will pay to Tulip the fees set forth in each Order Form in accordance with the payment schedule set forth in such Order Form. Unless otherwise specified in any Order Form or unless Customer is paying via Credit Card pursuant to Section 5.2 below, all invoices issued by Tulip will be due and payable within thirty (30) days of the date of the invoice. All fees are nonrefundable, except as expressly otherwise set forth in this Agreement, and will be paid in U.S. dollars. The fees in the Order Form are valid for the initial twelve (12) month period of each Subscription Term and thereafter may be subject to an automatic adjustment increase of up to ten percent (10%) per year. Customer is responsible for paying all Taxes, and all Taxes are excluded from any fees set forth in the applicable Order Form. If Customer is required by applicable law to withhold any Taxes from Customer’s payment, the fees payable by Customer will be increased as necessary so that after making any required withholdings, Tulip receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. In the event of any dispute of an invoice, Customer shall notify Tulip in writing within fifteen (15) days of receipt of the invoice of the disputed amount and the reason for the dispute, and the parties agree to negotiate promptly and in good faith a reasonable settlement of the disputed amount. Amounts not disputed within such fifteen (15) day period will be deemed valid and may not later be disputed.
5.2. Payment Via Credit Card. If Customer is making its purchase using a credit card, debit card or other payment card (“Credit Card”), the following additional terms apply:
Recurring Billing Authorization. By providing Credit Card information, Customer represents and warrants that it has the authority to charge the purchase to the Credit Card and hereby authorizes Tulip (or its designee) to automatically charge Customer’s Credit Card for all amounts due to Tulip under this Agreement in accordance with the applicable Order Form on the dates such amounts are payable as determined by Tulip. Customer acknowledges and agrees that if Customer is paying monthly, the amount billed and charged each month may vary depending on Customer’s use of the Tulip Offering and may include fees for the remainder of Customer’s applicable billing period and overage fees for the prior month.
Foreign Transaction Fees. Customer acknowledges that for certain Credit Cards, the issuer of Customer’s Credit Card may charge a foreign transaction fee or other charges.
Invalid Payment. If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to Tulip and Tulip may, in its sole discretion, either (i) invoice Customer directly for the deficient amount, (ii) continue billing the Credit Card once it has been updated by Customer (if applicable) or (iii) terminate this Agreement.
Changing Credit Card Information. At any time, Customer may change their Credit Card information by entering updated Credit Card information via the “Settings” page in The Tulip Platform.
Termination of Recurring Billing. In addition to any termination rights set forth in this Agreement, Customer may elect not to renew the Subscription Term by sending Tulip notice of non-renewal to email@example.com in accordance with Section 10.1 (Term) or, if Customer’s Subscription Term is on a monthly basis (or if otherwise permitted by Tulip), through the Tulip Platform, with termination effective at the end of the then-current Subscription Term. As set forth in Section 1.6 (Trial Subscriptions), if, following a Trial Period, Customer chooses not to enter into an Order Form for the Tulip Offering, Customer’s right to access and use the Tulip Offering will terminate at the end of the Trial Period and Customer’s Credit Card will not be charged. If Customer’s Subscription Term renews or if Customer elects to continue use of the Tulip Offering following a Trial Period, Customer’s Credit Card will be charged for the amounts due and payable for the Subscription Term.
Payment of Outstanding Fees. Upon any termination or expiration of the Subscription Term, Tulip will charge Customer’s Credit Card (or invoice Customer directly) for any outstanding amounts payable by Customer for Customer’s use of the Services during the Subscription Term, after which Tulip will not charge Customer’s Credit Card for any additional fees.
6. Customer Data.
6.1. Rights in Customer Data. As between the parties, Customer will retain all right, title and interest (including any and all Intellectual Property Rights) in and to the Customer Data submitted to the Tulip Platform. Subject to the terms of this Agreement, Customer hereby grants to Tulip a non-exclusive, worldwide, royalty-free, fully paid up, irrevocable (except on termination of this Agreement) license with right of sublicense to use, execute, host, copy, store, process, transmit, distribute, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the Tulip Offering to Customer and its Users and to allow Tulip’s third party contractors and services providers to exercise the licenses granted to Tulip in this Section to perform services for or on behalf of Tulip the extent necessary to provide the Tulip Offering to Customer and its Users.
6.2. Customer Obligations
6.2.1 In General. Customer is solely responsible for the accuracy, content and legality of all Customer Data submitted to the Tulip Platform. Customer represents and warrants to Tulip that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Data as contemplated in this Agreement (including granting Tulip the rights in Section 7.1 (Rights in Customer Data)) and that no Customer Data will violate or infringe (i) any third party Intellectual Property Rights or any publicity, privacy or other rights, (ii) any Laws, (iii) any terms of service, privacy policies or other agreements governing the Customer’s accounts with any Third-Party Platforms or (iv) the Acceptable Use Policy. Customer will be fully responsible for any Customer Data submitted to the Services by any User as if it was submitted by Customer.
6.2.2 No Sensitive Personal Information. Customer specifically agrees not to collect, store, process or transmit any Sensitive Personal Information using the Tulip Platform. Customer acknowledges that Tulip is not a Business Associate or subcontractor (as those terms are defined in HIPAA) or a payment card processor and that the Tulip Offering is neither HIPAA nor PCI DSS compliant. Tulip will have no liability under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.
6.3. Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, Customer agrees that Tulip may use Aggregated Anonymous Data to analyze, improve, support and operate the Tulip Offering and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by Customer and other Tulip customers. For clarity, Aggregated Anonymous Data will not include Customer Data that has not been anonymized and aggregated with other Tulip customer data and does not give Tulip the right to identify Customer as the source of any Aggregated Anonymous Data.
6.4. Storage of Customer Data. Tulip does not provide an archiving or data backup service for Tulip Products or Services. Tulip agrees only that it will not intentionally delete any Customer Data from the Tulip Platform prior to termination of Customer’s applicable Subscription Term. Tulip expressly disclaims all other obligations and liability with respect to storage and data backup.
6.5 Data Security and Data Privacy. Tulip agrees to maintain appropriate technical and organizational measures with respect to the Tulip Platform which are designed to prevent unauthorized access, use, alteration or disclosure of Customer Data; however, Tulip will have no responsibility for errors in transmission, unauthorized third-party access, loss, corruption, destruction, alteration, or unauthorized disclosure of or access to Customer Data which outside of Tulip’s reasonable control. Tulip’s privacy statement set forth at https://tulip.co/privacy/ as the same may be updated from time to time as provided therein, shall apply to all disclosures of personal information ander personal data by Users to Tulip. To the extent applicable to Customer’s use of the Tulip Platform, the parties will separately execute Tulip’s standard form of Data Processing Addendum.
7. Term; Termination; Suspension.
7.1. Term. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms. Unless otherwise specified on the applicable Order Form, each Subscription Term will automatically renew for additional twelve-month periods unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term.
7.2. Termination for Cause. Either party may terminate this Agreement (including all related Order Forms and Statements of Work) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay undisputed fees) within thirty (30) days after receipt of written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
7.3. Effect of Termination. Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all Tulip Offering (including any and all related Tulip Property) and will irretrievably delete (or, at Tulip request, return) any and all Tulip Software, Documentation, Access Credentials, Tulip Content, Tulip APIs, Tulip SDKs, and Tulip Confidential Information in its custody or control and all copies, summaries and extracts thereof. Provided this Agreement was not terminated for Customer’s breach, Customer may retain and use internally copies of all reports exported from the Tulip Platform prior to termination. Customer acknowledges that following termination it will have no further access to any Customer Data processed by Tulip through the Tulip Platform, and that Tulip may delete any such data as may have been stored by Tulip at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Tulip prior to the effective date of termination and if Tulip terminates this Agreement pursuant to Section 7.2, all amounts payable by Customer under this Agreement and all Order Forms will become immediately due and payable. Tulip shall have no liability to Customer or any third party for any termination or expiration of this Agreement.
7.4. Suspension of Service. If Customer’s account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Tulip reserves the right to suspend Customer’s access to the Tulip Platform (and any related Services) without liability to Customer until such amounts are paid in full. Tulip also reserves the right to suspend Customer’s access to the Tulip Platform (and any related Services) without liability to Customer if (i) Customer’s use of the Services is in violation of the license or other rights granted under Section 1 or is in violation of the AUP or (ii) a threat to the technical security or technical integrity of the Tulip Platform exists as determined by Tulip in its sole and absolute discretion.
7.5. Survival. The following Sections will survive any expiration or termination of this Agreement: 5 (Fees; Payment), 6.1 (Customer Rights in Customer Data), 6.3 (Aggregated Anonymous Data), 7.3 (Effect of Termination), 7.5 (Survival), 8.2 (Warranty Disclaimer), 10 (Indemnification), 11 (Limitation of Liability), 12 (Confidential Information), and 15 (General Terms).
Customer hereby grants Tulip the right to list Customer’s name and logo on Tulip’s customer lists, including on Tulip’s web site and in Tulip promotional materials, and agrees that Tulip may disclose Customer as a customer of Tulip.
9. Limited Warranty.
9.1. Limited Software Warranty. Tulip warrants, for Customer’s benefit only, that the Tulip Software and the Tulip Platform will include the functionality set forth in the applicable Documentation. Tulip’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for Tulip to use commercially reasonable efforts to correct the reported non-conformity, or if Tulip determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 9.1 will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the nonconformity was caused by misuse or unauthorized modifications of the Tulip Offering, Customer’s or its Users’ acts or omissions, or any Customer Data or interoperability of Customer infrastructure, Customer Data or Third Party Platforms, or non-Tulip hardware, software, materials or services, (iii) Customer’s failure to install an Update, or (iv) to Trial Subscriptions or Beta Versions.
9.2. Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 9.1, THE TULIP OFFERING IS PROVIDED “AS IS” AND “AS AVAILABLE”. NEITHER TULIP NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND EXPRESSLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. TULIP DOES NOT WARRANT THAT CUSTOMER’S USE OF THE TULIP OFFERING WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE, NOR DOES TULIP WARRANT THAT THE RESULTS FROM USE OF THE TULIP OFFERING WILL BE ACCURATE OR RELIABLE. TULIP DOES NOT WARRANT THAT TULIP WILL REVIEW THE CUSTOMER DATA SUBMITTED TO THE TULIP PLATFORM FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS OR CORRUPTION. TULIP SHALL NOT BE LIABLE FOR THE RESULTS OF ANY COMMUNICATIONS SENT OR ANY COMMUNICATIONS THAT WERE FAILED TO BE SENT USING THE TULIP OFFERING. TULIP SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF TULIP. TULIP EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE TULIP OFFERING WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS. CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THAT CUSTOMER’S AND ITS USER’S USE OF AND ACCESS TO THE TULIP OFFERING IS IN ACCORDANCE WITH APPLICABLE LAW. TULIP FURTHER MAKES NO WARRANTY IN CONNECTION WITH UPLOAD OR DOWNLOAD OF “SENSITIVE DATA TYPES”, DEFINED AS DATA PERTAINING TO (A) THE MANUFACTURE, STORAGE, USE, TRANSPORT, OR DESTRUCTION OF NUCLEAR POWER; (B) ANY CONTROL OF SYSTEMS, PROGRAMS, FACILITIES, EQUIPMENT, OR SOFTWARE USED IN SUCH A MANNER AS TO RESULT IN LIFE OR DEATH; (C) THE DESIGN, MANUFACTURE, ACCESS OR USE OF ANY NAVIGATIONAL GUIDANCE SYSTEM; (D) THE DESIGN MANUFACTURE OR USE OF ANY MEDICAL SOFTWARE OR EQUIPMENT USED FOR LIFE SUPPORT; (E) THE OPERATIONS OF ANY CRITICAL FACILITIES; OR (F) ANY MILITARY OR GOVERNMENTAL SECRET OR SENSITIVE INFORMATION. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TULIP’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, TERM, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE TULIP PRODUCT OR SERVICE AGAIN. No Tulip reseller, agent, or employee is authorized to make any modification, extension, or addition to this warranty. If any term is held to be illegal or unenforceable, the legality or enforceability of the remaining terms shall not be affected or impaired.
10.1 By Tulip.
10.1.1 Indemnity. Tulip will defend Customer from and against any claim by a third party brought against Customer contending that the Tulip Software or the Tulip Platform when used as authorized under this Agreement and in accordance with the Documentation infringes a U.S. patent, U.S. copyright, or U.S. trademark and will indemnify and hold harmless Customer from and against any damages and costs finally awarded against Customer or agreed in settlement by Tulip (including reasonable attorneys’ fees) resulting from such claim.
10.1.2 Remedy. If Customer’s use of the Tulip Software or the Tulip Platform is (or in Tulip’s opinion is likely to be) enjoined, if required by settlement or if Tulip determines such actions are reasonably necessary to avoid material liability, Tulip may, in its sole discretion require Customer to cease all use of the Tulip Software and Tulip Platform and either: (a) substitute substantially functionally similar software or services; (b) procure for Customer the right to continue using the affected Tulip Software or Tulip Platform, as applicable; or if (a) and (b) are not commercially feasible within a commercially reasonable period of time, (c) terminate this Agreement.
10.1.3 Exclusions. The obligations of Tulip under this Section 10 will not apply: (1) if the Tulip Software or the Tulip Platform is modified by any party other than Tulip or its authorized contractors, but solely to the extent the alleged infringement is caused by such modification; (2) if the Tulip Software or the Tulip Platform is combined with software, hardware, equipment, devices, data or other materials not developed by Tulip, but solely to the extent the alleged infringement is caused by such combination; (3) to any use of the Tulip Software or the Tulip Platform in violation of this Agreement or not in accordance with the Documentation; (4) to any action arising as a result of Customer Data, Customer Applications, Customer Device Drivers, Beta Versions, Trial Versions, Third Party Platforms, or any third-party deliverables or components contained within the Tulip Software or the Tulip Platform; (5) to the extent the alleged infringement is not caused by the particular technology or implementation of the Tulip Software or the Tulip Platform but instead by features common to any similar product or service; (6) an allegation that does not state with specificity that the Tulip Software or the Tulip Platform is the basis of the claim; (7) if Customer settles or makes any admissions with respect to a claim without Tulip’s prior written consent; or (8) an allegation made against Customer prior to Customer entering into this Agreement or any allegation based upon any action by Customer prior to entering into this Agreement.
9.1.4 Sole Remedy. THIS SECTION 10 SETS FORTH TULIP’S AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
10.2 By Customer. Customer shall defend, indemnify and hold Tulip and its Affiliates and their respective employees, officers, directors and agents harmless from and against any losses, damages, costs, expenses, settlements, fines, penalties and any and all other liabilities (including reasonable attorneys’ fees) arising out of or in connection with third party claims, suits, proceedings, demands, or actions arising out of or related to (i) Customer’s or any User’s use of the Tulip Offering not in accordance with the terms of this Agreement or the Documentation or (ii) the Customer Data, Customer Applications, Customer Device Drivers, Third Party Platforms or any other non-Tulip software, hardware, equipment or materials used by Customer with the Tulip Offering, including without limitation any claim that any of the foregoing, in whole or in part, infringe, violate or misappropriate the Intellectual Property Rights of, or has otherwise harmed, a third party.
10.3 Indemnification Process. The foregoing obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, provided, that any failure to promptly notify the indemnifying party shall not relive the indemnifying party of its obligations except to the extent it was unduly prejudiced; (b) giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, provided that any settlement shall fully release the indemnified party from liability and shall not impose any obligations or restrictions on the indemnified party without the indemnified party’s prior written consent; and (c) cooperating and, at the indemnifying party’s written request and expense, assisting in such defense. The indemnifying party will not reimburse the indemnified party for any expenses incurred by the indemnified party without the prior written approval of the indemnifying party. The indemnified party will have the right to participate in the defense and settlement of a claim at the indemnified party’s expense.
11. Limitation of Liability.
11.1. Consequential Damages Waiver. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR AMOUNTS PAYABLE BY CUSTOMER TO TULIP, A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10, ANY BREACH BY CUSTOMER OF ANY LICENSES GRANTED HEREUNDER OR BREACH OF SECTIONS 1, 4, 6.2 OR 15.10, OR VIOLATION OR MISAPPROPRIATION BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF DAMAGE TO, OR CORRUPTION OF, DATA, FAILURE OF SECURITY MECHANISMS, LOSS OF USE, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR WHETHER SUCH DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES.
11.2. Liability Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR AMOUNTS PAYABLE BY CUSTOMER TO TULIP, A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10, ANY BREACH BY CUSTOMER OF ANY LICENSES GRANTED HEREUNDER OR BREACH OF SECTIONS 1, 4, 6.2 OR 15.10, OR VIOLATION OR MISAPPROPRIATION BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, VIN NO EVENT SHALL EITHER PARTY'S AGGREGATE TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO TULIP (OR ITS AUTHORIZED RESELLER) UNDER THE APPLICABLE STATEMENT OF WORK OR THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT AND SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
11.3. Nature of Claims and Failure of Essential Purpose. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE LIMITATIONS HEREIN MAY NOT APPLY. Neither party shall be responsible or liable for any loss, damage or inconvenience suffered by the other party or by any third person, to the extent that such loss, damage or inconvenience is caused by the failure of the other party to comply with its obligations under this Agreement. The parties agree that the disclaimers and limitations specified in this Agreement apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
11.4 Limitation of Action. To the maximum extent permitted by applicable law and except for actions by Tulip against Customer for non-payment of, for Customer’s breach of the licenses granted herein or Sections 1, 4, 6.2 or 15.10, or Customer’s misappropriation or violation of Tulip’s Intellectual Property Rights, no action (regardless of form) arising out of this Agreement may be commenced by either party more than one (1) year after the date the cause of action accrued.
11.5 Allocation of Risk. Each party acknowledges that the fees payable by Customer to Tulip reflect the allocation of risk between the parties and that the other party would not enter into this Agreement without the limitations on its liability set forth in this Section 11.
12. Confidential Information.
12.1 Confidential Information. Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to or learn from the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including without limitation, technical, marketing, financial, and other confidential or proprietary information whether disclosed orally, in writing or visually, that is either marked or designated as confidential or is identified in writing as confidential at the time of disclosure or which the Receiving Party knew or should have known, due to the nature of the information and/or the circumstances under which disclosure was made, was considered confidential or proprietary by the Disclosing Party (“Confidential Information”). For the avoidance of doubt, the Tulip Offering, the Tulip Technology, these Terms of Service and any pricing provided in an Order Form, Aggregated Anonymous Data and any performance or benchmarking information with respect to the Tulip Offering constitute Confidential Information of Tulip.
12.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees agents, contractors and other representatives of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will (a) protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care; and (b) promptly advise the Disclosing Party upon becoming aware of any loss, disclosure, or duplication of the Confidential Information or of any breach of this Agreement, including, without limitation, the misappropriation of the Confidential Information. Both parties acknowledge and agree that the Disclosing Party may be irreparably harmed by any violation of this Section 12 (Confidential Information) and that the use of the Confidential Information for any purpose other than that stated herein may, among other things, enable the Receiving Party or other third parties receiving such Confidential Information to compete unfairly with the Disclosing Party. Therefore, in the event of a breach or threatened breach, the disclosing party shall be entitled, in addition to all other rights and remedies available at law or in equity, to seek (i) an injunction restraining such breach, without being required to show any actual damage or to post security or other bond; or (ii) a decree for specific performance of the applicable provision of this Agreement. Notwithstanding the termination or expiration of this Agreement, the obligations of the Receiving Party, with respect to the Confidential Information of Disclosing Party, shall be in full force and effect as follows: (A) in the case of any information or materials that constitute a trade secret within the meaning of applicable law, for as long as such information and materials remain as a trade secret, or (B) in the case of any other information or materials, during the term of this Agreement and for a period of five (5) years following the termination or expiration of this Agreement.
12.3 Exceptions. The Receiving Party’s obligations under this subsection will not apply to any portion of the Disclosing Party’s Confidential Information if the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by employees of the Receiving Party who had no access to such information, without use of or reference to the Disclosing Party’s Confidential Information, and without breach of this Agreement. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. Any Confidential Information required to be disclosed shall otherwise remain subject to the terms and conditions of this Agreement.
12.4 Return of Confidential Information. The Receiving Party will return to the Disclosing Party all Confidential Information of the Disclosing Party (including without limitation all copies, extracts and summaries thereof) in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this subsection.
12.5 Confidentiality of Agreement. Customer will not disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (a) as required by law; (b) pursuant to a mutually agreed to press release; or (c) in connection with a proposed merger, financing, or sale of Customer’s business (provided that any third party to whom the terms of this Agreement are to be disclosed signs a confidentiality agreement reasonably satisfactory to Tulip).
13. Ownership of Tulip Offering.
13.1. Tulip Property. Customer acknowledges that it is obtaining only a limited right to use the Tulip Offering to the extent expressly granted herein and that irrespective of any use of the word’s “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that Tulip and its suppliers own and retain all right, title and interest in and to all Tulip Offering and the Tulip Technology, including without limitation any and all related and underlying technology and documentation and all modifications, enhancements, improvements, new versions, new releases, corrections and derivative works, and all Intellectual Property Rights in and to all of the foregoing, including as may incorporate Feedback (“Tulip Property”), and Tulip expressly reserves all rights not expressly granted herein. Further, Customer acknowledges that The Tulip Platform as provided by Tulip is offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of the object code or source code of the Tulip Platform.
13.2. Feedback. Customer, from time to time, may submit Feedback to Tulip. Customer grants 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 Customer or any other person or entity.
14. Governing Law; Dispute Resolution
a) Direct Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, whether arising in contract, tort or otherwise, (“Dispute “), the parties shall first use their commercially reasonable efforts to resolve the Dispute. If a Dispute arises, the complaining party shall provide written notice to the other party in a document specifically entitled “Initial Notice of Dispute,” specifically setting forth the precise nature of the dispute (“Initial Notice of Dispute “). If an Initial Notice of Dispute is being sent to Tulip it must be emailed to firstname.lastname@example.org and sent via mail to:
Attn: Legal Department
Tulip Interfaces, Inc.
561 Windsor St. 2 Fl
Somerville, MA, 02143, USA
Following receipt of the Initial Notice of Dispute, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interest, attempt to reach a just and equitable solution of the Dispute that is satisfactory to both parties (“Direct Dispute Resolution “). If the parties are unable to reach a resolution of the Dispute through Direct Dispute Resolution within thirty (30) days of the receipt of the Initial Notice of Dispute, then the Dispute shall subsequently be resolved by arbitration as set forth below.
b) Arbitration. IN THE EVENT THAT A DISPUTE BETWEEN THE PARTIES CANNOT BE SETTLED THROUGH DIRECT DISPUTE RESOLUTION, AS DESCRIBED ABOVE, THE PARTIES AGREE TO SUBMIT THE DISPUTE TO BINDING ARBITRATION. BY AGREEING TO ARBITRATE, THE PARTIES AGREE TO WAIVE THEIR RIGHT TO A JURY TRIAL. The arbitration shall be conducted before a single neutral arbitrator, before JAMS in Boston, Massachusetts. The arbitration shall be administered by JAMS in accordance with this document and the JAMS Streamlined Rules and Procedures for the Arbitration, with one addition: The limitation of one discovery deposition per side shall be applied by the arbitrator, unless it is determined, based on all relevant circumstances, that more depositions are warranted. The arbitrator shall consider the amount in controversy, the complexity of the factual issues, the number of parties and the diversity of their interests and whether any or all of the claims appear, on the basis of the pleadings, to have sufficient merit to justify the time and expense associated with the requested discovery.
The arbitration will occur in Boston, Massachusetts, but the parties may choose to appear by person, by phone, by another virtual means, or through the submission of documents.
The arbitrator will issue a ruling in writing. Any issue concerning the extent to which any dispute is subject to arbitration, the applicability, interpretation, or enforceability of this agreement shall be resolved by the arbitrator. To the extent state law is applicable, the arbitrator shall apply the substantive law of Massachusetts.
All aspects of the arbitration shall be treated as confidential and neither the parties nor the arbitrators may disclose the content or results of the arbitration, except as necessary to comply with legal or regulatory requirements. The result of the arbitration shall be binding on the parties and judgment on the arbitrator’s award may be entered in any court having jurisdiction. The arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.
c) Governing Law; Jurisdiction; Jury Waiver; Translations. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the Commonwealth of Massachusetts, without giving effect to any conflicts of laws principles that require the application of the law of a different state. The Parties expressly disclaim the applicability of the United Nations Convention on Contracts for the International Sale of Goods does and the Uniform Computer Information Transactions Act. FOR ANY CLAIM WHICH IS NOT SUBJECT TO THIS DISPUTE RESOLUTION PROVISION, CUSTOMER HEREBY IRREVOCABLY AGREES TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN SUFFOLK COUNTY, MASSACHUSETTS. The parties irrevocably waive any right to a trial by jury. The English language version of this Agreement shall govern in lieu of any translation.
d) Construction and Joinder. THIS AGREEMENT MUST BE CONSTRUED AS IF IT WAS JOINTLY WRITTEN BY BOTH PARTIES. BOTH CUSTOMER AND TULIP AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS. NO ARBITRATION OR CLAIM UNDER THIS AGREEMENT SHALL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES, AND NO CLASS ARBITRATION PROCEEDINGS SHALL BE PERMITTED. IN THE EVENT OF ANY DISPUTE CONCERNING THE VALIDITY OR ENFORCEABILITY OF THIS PROVISION, SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.
e) Injunctive Relief. Notwithstanding the above provisions, Tulip may apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
15. General Terms.
15.1. Assignment. Neither party will assign this Agreement, or delegate its obligations or assign its rights hereunder, without obtaining the prior written consent of the other party, and any attempted assignment in violation of the foregoing will be null and void. For the avoidance of doubt, a change of control, merger or other consolidation, acquisition or reorganization of Customer shall be deemed an assignment hereunder and is not permitted without Tulip’s prior written consent, which may be withheld or conditioned in Tulip’s sole and absolute discretion. Notwithstanding the foregoing without Customer’s prior consent, Tulip may assign this Agreement in connection with a merger, acquisition, reorganization or change of control of Tulip, including without limitation a sale of all or substantially all of its assets, voting securities or business to which this Agreement relates. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
15.2. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
15.3. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. In addition, Customer acknowledges and agrees that Tulip may provide notices to Customer via email to Customer’s email account on file with Tulip or through the Tulip Platform and such notices will be deemed given when sent.
15.4. Waivers; Remedies. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
15.5. Entire Agreement. To the maximum extent permitted by applicable law, these Terms of Service, together with the documents referenced herein and all Order Forms and Statements of Work entered into hereunder, constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to entering into the Agreement, except as expressly stated in these Terms of Service. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into the Agreement (unless such untrue statement was made fraudulently) and that party’s only remedy in respect of any untrue statement shall be for breach of contract as provided in these Terms of Service. No supplement, modification, amendment, or waiver of any provision of these Terms of Service (or any Order Form or Statement of Work) shall be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted. Customer acknowledges and agrees that its agreement is not contingent upon the delivery of any future functionality or features not specified herein or in an Order Form or dependent upon any oral or written, public or private comments made by Tulip with respect to future functionality or features for the Tulip Offering.
15.6. Force Majeure. Any failure of or delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by an act of government, act of God, act of war, acts of terrorism, riot, labor dispute, strike, shortage of materials, natural disaster, fire, earthquake, pandemic, epidemic, flood, failure of internet service providers, failure of utility or telecommunications providers, failure denial of service attacks, failure of suppliers or service providers, or any other event beyond the reasonable control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as commercially practicable.
15.7. Subcontractors. Tulip may use the services of its Affiliates and its and its Affiliates’ third party subcontractors and service providers and shall have the right to permit them to exercise the rights granted to Tulip hereunder in order to perform Tulip’s obligations and exercise Tulip’s rights under this Agreement, provided that Tulip remains responsible for (i) compliance of any such third parties with the terms of this Agreement and (ii) for the overall performance of this Agreement.
15.8. No Third Party Beneficiaries. The Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to the Agreement may enforce it.
15.9. Independent Contractors. The parties to the 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
15.10. Export Control; Anti-Corruption. In its use of the Tulip Offering, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country, (ii) Customer will not (and will not permit any of its Users to) access or use the Tulip Products and/or Services in violation of any U.S. export embargo, prohibition or restriction, and (iii) Customer will not submit to the Tulip Products and/or Services any information that is controlled under the U.S. International Traffic in Arms Regulations. Both parties agree to fully comply with the provisions of the United States Foreign Corrupt Practices Act (“FCPA”) and/or the Organization for Economic Cooperation and Development (“OECD”) prohibiting foreign bribery and improper payments. Without limiting the generality of the foregoing, Both parties represent and warrant that it has not and shall not at any time during the Term pay, give, or offer or promise to pay or give, any money or any other thing of value, directly or indirectly, to or for the benefit of: (i) any government official, political party, or candidate for political office; or (ii) any other person, firm, corporation or other entity, with knowledge that some or all of that money or other thing of value will be paid, given, offered or promised to a government official, political party or candidate for political office, for the purpose of obtaining or retaining any business, or to obtain any other unfair advantage, in connection with this Agreement.
15.11. Government End-Users. Elements of the Tulip Products are commercial computer software. All Tulip Products were developed fully at private expense. Tulip provides the Tulip Products, including related software and technology, for ultimate federal government end use solely in accordance with the following: If the user or licensee of the Tulip Products is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Tulip Products, or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Tulip to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement. All other use is prohibited.
15.12. Construction. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular, the singular the plural, and the part the whole, (ii) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (iii) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (iv) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party.
[Remainder of Page Intentionally Left Blank]
15.13. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement. Facsimiles and PDFs of a party’s authorized representative's signature shall be deemed to be binding upon such party. The parties agree and acknowledge that this Agreement and any Order Form or SOW may be signed by means of an electronic signature, provided that such signature and any related signing process comply fully with all applicable laws (including without limitation the U.S. federal ESIGN Act and any applicable state laws) and each party hereby waives any right to raise any defense or waiver based upon execution of this Agreement by means of such electronic signatures or maintenance of the executed agreement electronically.
IN WITNESS WHEREOF, this Agreement has been duly executed by the undersigned as of the date first set forth above.
Exhibit A to Tulip Terms of Service
“Acceptable Use Policy” or “AUP” means Tulip’s Acceptable Use Policy which applies to the use of the Tulip Platform and is set forth at https://tulip.co/tos/ as the same may be updated from time to time.
“Access Credentials” mean login information, API keys, passwords, security protocols, and policies through which Admin Users access and use the Tulip Platform.
“Admin User” means Customer’s employees and Contractors that Customer authorizes to access and use the Tulip Software, Tulip Platform, and Tulip Content, Tulip SDK and Tulip APIs and which are bound by written terms at least as protective of Tulip as those in this Agreement.
“Affiliate” means all companies and subsidiaries that directly or indirectly control or are controlled by a party to this Agreement or are under common control with such party. As used in this Agreement, control means equity ownership of fifty percent (50%) or greater interest in the voting shares held by an entity.
“Aggregated Anonymous Data” means any information, metadata or other data derived from Customer’s and its Users’ use of the Tulip Platform that is not specific to a person, does not include personally identifiable information, and cannot be used, alone or in conjunction with other information, to identify any specific person.
“App User” means Customer’s employees and Contractors that Customer authorizes to access and use the Tulip Player and Applications and which are bound by written terms at least as protective of Tulip as those in this Agreement.
“Application” means Customer Applications and Library Applications.
“Beta Versions” means versions of new functionality for the Tulip Products or Services and/or Updates that are not generally commercially available and which Tulip may pre-release to all or some of its customers for which customers are expected to report any bugs they encounter or any changes such customers would like to see before the general release.
“Contractor” means an independent contractor or consultant who is not a competitor of Tulip.
“Customer Data” means any data of any type that is submitted to the Tulip Platform by or on behalf of Customer, including without limitation: (a) data submitted, uploaded or imported to the Tulip Platform by Customer (including without limitation from Third Party Platforms) and (b) data provided by or about Users or Customer processes that are collected from Applications hosted on the Tulip Platform or otherwise viewed, displayed or transmitted using the Tulip Platform.
“Customer Applications” means any mobile application or desktop client software built by Customer using the Tulip Platform Software.
“Connecters” means the object code version of any components, connecters, or code made available by Tulip to enable Tulip Software and Tulip Hardware to connect to Third Party Platforms, including all Updates provided by Tulip to Customer.
“Device Drivers” means the device drivers embedded within the Tulip OS which are used to connect Applications to Customer’s Supported Devices, including all Updates provided by Tulip to Customer.
“Documentation” means the technical user documentation for the Tulip Products, whether in print or electronic form, provided by Tulip with the Tulip Products or made available by Tulip at the Tulip Knowledge Center, as the same may be updated by Tulip from time to time to reflect Updates.
“Feedback” means ideas, thoughts, criticisms, suggestions, enhancement requests, techniques, know-how, methodologies, comments, feedback or other input relating to any Tulip product or service, including in response to any product plans or roadmaps shared with Customer.
“Intellectual Property Rights” mean any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) registrations, applications, renewals, extensions, or reissues of the foregoing, in each case, in any jurisdiction throughout the world.
“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy and data transfer, international communications, and the exportation of technical or personal data.
“Library Applications” means template applications and content made available by Tulip which runs on Tulip Player, including all Updates provided by Tulip to Customer. Library Applications do not include the Tulip Platform Software or Tulip Player.
“Maximum Concurrent Authorized Users” is defined as the maximum number of Users who use the Tulip Platform Software or specific Applications in a period of 60 minutes.
“Order Form” means Tulip’s standard order form, whether in electronic or printed form, entered into by an authorized representative of each party.
“Professional Services” shall have the meaning accorded to such term in Section 3.
“Sensitive Personal Information” means any of the following: (i) financial account information or credit, debit or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS“); (ii) patient, medical or other protected health information regulated by the Health Insurance Portability and Accountability Act (“HIPAA“); (iii) social security numbers, passport numbers or other government issued id numbers, date of birth and/or gender; (iv) any other personal data of an EU citizen deemed to be in a “special category” (as identified in EU General Data Protection Regulation or any successor directive or regulation); (v) would require notification to government agencies, individuals or law enforcement if subject to unauthorized access, use or disclosure; (vi) reveals racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, sex orientation or activities, or genetic or biometric data; or (vii) other information which a reasonable person would recognize as being highly sensitive (but excluding, for avoidance of doubt, contact information such as name, mailing address, IP address, email address, and phone number).
“Services” means Support Services and Professional Services.
“SOW” shall have the meaning accorded to such term in Section 3.
“Subscription Term” means the period of time set forth in an Order Form during which Customer has the right to access and use the Tulip Products.
“Support Services” means the technical support and maintenance services for the Tulip Products made available by Tulip to Customer under the Tulip Support Program.
“Supported Devices” means those devices for which Tulip Device Drivers are made available by Tulip or for which Customer develops Customer Device Drivers using Tulip SDK and which are able to be managed by the Tulip Software.
“Supported Operator Facing Devices” means those devices set forth in the Documentation for Tulip Player on which Tulip Player is able to be installed and used and on which Applications are able to be deployed and used by App Users using Tulip Player.
“Taxes” means any sales, use, GST, value-added, withholding, or similar taxes, customs, and any customs duties, charges, fees or levies, whether domestic or foreign, excluding taxes based on the income, employees or property of Tulip.
“Third Party Platform” means any software, software-as-a-service, data sources or other products or services not provided by Tulip that are connected to the Tulip Platform Software in accordance with the Documentation.
“Tulip APIs” means Tulip’s proprietary application programming interfaces.
“Tulip Content” means Library Applications, Connectors, Machine Learning Models, and Device Drivers made available from time to time by Tulip for use with the Tulip Platform Software through Tulip’s cloud service which is accessed by Customer through the Virtual Private Cloud, including all Updates provided by Tulip to Customer.
“Tulip Hardware Products” 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.
“Tulip Knowledge Center” means the Tulip online portal made available by Tulip to its customers at https://support.tulip.co/en/&n...; as may be updated by Tulip from time to time.
“Tulip OS” means the object code version of Tulip’s proprietary software that is referred to as Tulip OS and is embedded in Tulip Hardware as the operating system for Tulip Hardware.
“Tulip Platform” means Tulip’s proprietary Frontline Operations software service. Tulip provides the Tulip Platform on a software as a service basis over the Internet as hosted by Tulip or its third party hosting provider. The Tulip Platform is accessible by Customer’s Admin Users through a web interface over the Internet.
“Tulip Player” means the object code version of Tulip’s proprietary software product referred to as Tulip Player, including all Updates provided by Tulip to Customer, which runs on Supported Operator Facing Devices.
“Tulip Products” means Tulip Hardware and Tulip Software.
“Tulip Software” means Tulip OS and Tulip Player.
“Tulip Support Program” means the Tulip standard support program set forth at https://tulip.co/support-policy/ which sets forth the Support Services provided by Tulip for the Tulip Products. The support terms described in the Tulip Support Program may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices; provided that any modifications that materially decrease Tulip obligations as compared to those reflected in such terms as of the Effective Date shall not take effect until renewal of Customer’s Subscription Term.
“Tulip Technology” means (i) the computer software, computer code, scripts, application programming interfaces, methodologies, templates, tools, algorithms, user interfaces, know-how, trade secrets, techniques, designs, inventions, third party services and other tangible or intangible technical material, information and works of authorship underlying or otherwise used to make available the Tulip Offering, (ii) Tulip APIs, (iii) Tulip Content, and (iii) Tulip SDK; including, without limitation, all Intellectual Property Rights therein and thereto.
“Updates” mean all upgrades, enhancements, improvements, maintenance releases, additions, and modifications, of the Tulip Software made generally commercially available by Tulip pursuant to the Tulip Support Program during the applicable Subscription Term.
“User” means any Admin User or App User.