1. Professional Services
1.1 Scope of Professional Services. Tulip will provide Customer with the professional services (the “Services” or the “Professional Services”) and deliverables (“Deliverables”) specified in each SOW or Order Form (as applicable), subject to Customer’s payment of all applicable fees as set forth in the SOW or Order Form (as applicable).
1.2. Relationship to Tulip Products. Customer agrees that the purchase of Professional Services is not contingent on the delivery of any future product functionality or features (other than Deliverables and subject to the terms of the applicable SOW or Order Form) or on any oral or written public comments by Tulip regarding future product functionality or features.
2. Cooperation
2.1. Cooperation. Customer agrees to cooperate reasonably and in good faith with Tulip in its performance of Professional Services by, complying with the obligations set forth in the applicable SOW and/or Order Form, as well as, without limitation:
(a) allocating sufficient resources and timely performing any tasks reasonably necessary to enable Tulip to perform Our
obligations under each SOW or Order Form;
(b) timely delivering any materials and other obligations required under each SOW or Order Form;
(c) timely responding to Tulip’s inquiries related to the Professional Services;
(d) assigning an internal project manager for each SOW or Order Form to serve as a primary point of contact for Tulip;
(e) actively participating in scheduled project meetings;
(f) providing, in a timely manner and at no charge to Tulip, office workspace, telephone and other facilities, suitably configured computer equipment with Internet access, access to Customer’s appropriate and knowledgeable employees and agents, and continuous administrative access to Customer’s Tulip online service (“Online Service”) account, and coordination of onsite, online and telephonic meetings all as reasonably required by Tulip; and
(g) complete, accurate and timely information, data and feedback all as reasonably required.
2.2. Delays. Any delays in the performance of Professional Services or delivery of Deliverables caused by Customer may result in additional applicable charges for resource time.
3. Delivery, Acceptance, and Change Orders
3.1. Delivery of Services. Tulip will provide the Professional Services, including any Deliverables, in accordance with the Agreement and this Addendum and the applicable SOWs or Order Forms.
3.2. Acceptance. Unless otherwise specified in the SOW or Order Form, upon completion of each Deliverable under an SOW or Order Form, Tulip will, as applicable: (a) submit a complete copy to Customer; and (b) at Customer’s request, demonstrate its functionality to Customer. Customer is responsible for reviewing and testing all Deliverables in accordance with such SOW or Order Form pursuant to any acceptance criteria or test plans mutually agreed upon in writing by the parties for such Deliverable. Customer will provide Tulip with written notification of acceptance for each Deliverable promptly upon acceptance; however, failure to reject a Deliverable, as set forth below, will be deemed acceptance. If Customer, in Customer’s reasonable and good faith judgment, determine that any submitted Deliverable does not satisfy the agreed-upon acceptance criteria as specified in the applicable SOW or as mutually agreed upon in writing by the parties for such Deliverable, Customer must so notify Tulip in writing within 5 business days after Our submission of the Deliverable, specifying the deficiencies in detail. Tulip will use commercially reasonable efforts to correct such deficiencies and resubmit the Deliverable to Customer as soon as practicable. Customer will again review and test the Deliverable against the agreed-upon acceptance criteria, and detail any deficiencies to Tulip in writing within 5 business days after resubmission of the Deliverable. Such review and approval process will be repeated until such time as all non-conformances have been resolved.If the parties determine that a Deliverable’s functional requirements specified in a SOW or Order Form require modification (for example, due to incorrect assumptions or changed requirements), they will cooperate in good faith to execute a Change Order for such revised requirements.
3.3. No Effect on Warranty Remedies. Acceptance of Professional Services, including a Deliverable, will not affect Customer’s rights or remedies under the “Warranty” section of Tulip’s Terms of Service.
3.4. Change Orders. Changes to a SOW or Order Form will require a written Change Order signed by the parties prior to implementation of the changes. Such changes may include, for example, changes to the scope of work and any corresponding changes to the estimated fees and schedule.
4. Fees, Invoicing and Taxes
4.1. Fees. Customer will pay Tulip for the Professional Services at the rates specified in the applicable SOW or Order Form, or if no rate is specified in the SOW or Order Form, Tulip’s standard rates in effect at the time the SOW or Order Form is executed. Professional Services are provided on either a time-and-materials or fixed fee basis, as provided in an SOW or Order Form. Any amount set forth in a time-and-materials SOW is solely a good-faith estimate for Customer’s budgeting and Tulip’s resource-scheduling purposes and is not a guarantee that the work will be completed for that amount; the actual amount may be higher or lower. If the estimated amount is expended, Tulip will continue to provide Professional Services under the same rates and terms. Tulip will periodically update Customer on the status of the Professional Services and the fees accrued under SOWs or Order Forms.
4.2. Incidental Expenses. Customer will reimburse Tulip for reasonable travel and out-of-pocket expenses incurred in connection with Professional Services. If an estimate of incidental expenses is provided in the applicable SOW or Order Form, Tulip will not exceed such estimate without Customer’s written consent.
4.3. Invoicing and Payment. Charges for time-and-materials engagements will be invoiced monthly in arrears unless otherwise expressly stated in the applicable SOW or Order Form. Charges for fixed fee engagements will be invoiced in advance in the manner as provided in the SOW or Order Form, as applicable, unless otherwise expressly stated therein. Invoiced amounts will be due and payable net 30 days from the invoice date. Customer is responsible for providing Tulip with Customer’s complete and accurate billing and contact information and notifying Tulip of any changes to such information.
4.4. Overdue Charges. If any invoiced amount is not received by Tulip by the due date, then without limiting Tulip’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Tulip may condition future purchases of Professional Services on payment terms shorter than those specified in Section 4.3 (Invoicing and Payment).
4.5. Suspension of Professional Services. If any amount owing by Customer under this Addendum or any other agreement for Tulip’s Professional Services is 30 days or more overdue, Tulip may, without limiting Tulip’s other rights and remedies, suspend Tulip’s performance of Professional Services until such amounts are paid in full.
4.6. Payment Disputes. Tulip will not exercise its rights under the “Overdue Charges” or “Suspension of Professional Services”
sections above if Customer is disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve
the dispute.
4.7. Taxes. Tulip’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with Customer’s purchases hereunder. If Tulip has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Tulip will invoice Customer and Customer will pay that amount, unless Customer provides Tulip with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Tulip is solely responsible for taxes assessable against Tulip based on Tulip’s income, property and employees.
5. Proprietary Rights and Licenses
5.1. Customer’s Intellectual Property. Customer does not grant to Tulip any rights in or to Customer’s intellectual property except such licenses as may be required for Tulip to perform its obligations hereunder.
5.2. License for Contract Property. Upon Customer’s payment of fees due under an applicable SOW or Order Form, Tulip grants Customer a worldwide, perpetual, non-exclusive, non-transferable, royalty-free license to copy, maintain, use and run (as applicable) solely for Customer’s internal business purposes associated with Customer’s use of Tulip products anything developed by Tulip for Customer, including Deliverables, under this Agreement (“Contract Property”). Each party hereto each retains all right, title and interest in its respective intellectual property and Tulip retains all ownership rights in the Contract Property.
5.3 Feedback. Customer, from time to time, may submit suggestions or other feedback to Tulip with respect to Tulip’s products or the Professional Services or Deliverables (the “Feedback”). 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.
6. Termination
6.1 Termination for Convenience. Either party may terminate this Addendum at any time for convenience upon 10 days’ written notice to the other. To the extent there are SOWs or Order Forms in effect when a party terminates this Addendum, such SOWs or Order Forms shall continue to be governed by the Agreement as if such SOW or Order Form had not been terminated. Customer may terminate an individual SOW or Order Form for convenience if and to the extent set forth in such SOW or Order Form.
6.2. Termination for Cause. A party may terminate this Addendum and/or any SOW or Order Form for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
6.3. Payment Upon Termination. Upon any termination of an SOW or Order Form, Customer will pay, in accordance with the Fees & Invoicing and section of this PS Addendum and any payment terms set forth in the SOW or Order Form, all unpaid fees and expenses incurred on or before the termination date (such Professional Services fees to be paid on a time-and-materials or percent-of-completion basis, as appropriate). In the event that Customer terminates an SOW or Order Form for cause and Customer has pre-paid any fees for Professional Services not yet received, Tulip will refund such pre-paid fees. In the event that Tulip terminates an SOW or Order Form for cause, any pre-paid fees for Professional Services charged on a fixed-fee basis are non-refundable, unless expressly stated otherwise in an SOW or Order Form.