Updated October 2, 2023
These Tulip Partner Terms and Conditions (“Partner Terms”), effective as of the Effective Date set forth on the Order Form, are entered into by and between Tulip Interfaces, Inc., located at 77 Middlesex Ave., Suite A, Somerville, MA 02145, (“Tulip”) and the partner entity identified on the Order Form (“Company”). Each of Company and Tulip is a “Party” and together, the “Parties.” These Partner Terms, together with the Order Form, (the “Agreement”) govern the business relationship between the Parties. By entering into an Order Form on behalf of Company, the signer of such Order Form represents that they are authorized to accept, and do accept, these Partner Terms on behalf of Company. All defined terms used but not defined herein shall have the meanings ascribed to such terms in the Order Form.
1. DEFINITIONS
a. “Affiliate” means any business entity that control’s, is controlled by or is under common control with either party to this Agreement. A business entity shall be deemed to “control” another business entity if it owns, directly or indirectly, fifty percent (50%) or more of the voting share capital of such business entity or of any other comparable equity or ownership interest.
b. “Agreement” means these Partner Terms and the Order Form and any additional terms therein or attachments thereto.
c. “Applications” means any software running or intended to run on an Interface and built on the Tulip Platform using Tulip’s low-code or no-code tools.
d. “Automations” means cloud-hosted, configurable workflows that run continuously and independently of Applications.
e. “Company Role” means the role designated for Company on the Order Form.
f. “Customer” means an end customer that purchases a subscription for the Products, either through Tulip or, if Company’s Company Role is a Reseller, through Company.
g. “Customer Content” means any software applications, third party plugins, application templates, widgets, connectors, device drivers, node red flows, machine learning models, Automations, or anything else to be integrated with or developed using the Tulip Platform, which is for use by a Customer solely for its own business purposes with the Products.
h. “Order Form” means the order form entered into between the Parties and into which these Partner Terms are incorporated by reference or to which these Partner Terms are attached.
i. “Products” means the Tulip Platform, unless otherwise stated on the Order Form entered into between Tulip and Company.
j. “Product Price List” means Tulip’s currently effective list of prices for Products, as the same may be updated from time to time.
k. “Services” means services provided by Company to Customers with respect to the Products including, but not limited to, installation implementation and integration services and other assistance and consultation with respect to the Products. The “Services” may include the development of Customer Content for a Customer. “Services” do not include technical support for the Products; all technical support will be provided directly by Tulip to the Customer.
l. “Subscription” means the right to use the Products for a specified period of time pursuant to Tulip’s Terms of Service.
m. “Tulip Platform” means Tulip’s proprietary Frontline Operations software service and the Tulip Content (as defined in the TOS) running on such platform. 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 through a web interface over the Internet.
n. “Term” means the term of this Agreement, as determined in accordance with Section 10.a.
o. “Tulip Developer Policy” means the Tulip developer policy set forth at https://tulip.co/legal/developer-policy/, as the same may be updated from time to time.
p.“Tulip Terms of Service” or “TOS” means the Tulip terms of service set forth at https://tulip.co/legal/terms-conditions/, as the same may be updated from time to time by Tulip.
2. APPOINTMENT; RESPONSIBILITIES
Appointment. Tulip hereby appoints Company on a non-exclusive basis to the Company Role and Company hereby accepts such appointment. If set forth on the Order Form, such appointment includes the provision of Services to Customers. If Company is appointed as a provider of Services and such Services include the development of Customer Content for a Customer, such Customer Content may not, without Tulip’s prior written consent, be distributed or licensed or otherwise provided by Company to any other Customers or other customers of Company.
Tulip Platform. Tulip will provide Company with access to and use of an account on the Tulip Platform which may be used by Company for the sole purposes of demonstrating the Tulip Platform to Customers and in Materials (as defined below) and, if applicable to the Company’s Role developing Customer Content for Customers as part of the Services. All access and use of the Tulip Platform by Company, including without limitation for Proof of Value and training purposes, will be subject to and governed by the TOS. Company hereby agrees to the TOS by executing this Agreement. Any development of Customer Content is subject to and governed by the Tulip Developer Policy.
Services. Company will contract directly with each Customer for the provision of any Services to that Customer. Any use of the Products by Company in the performance of the Services for a Customer will be subject to Company’s compliance with the terms of service or other master agreement for use of the Products entered into between Tulip and that Customer (the “Customer Agreement”) and the Tulip Developer Policy and Company agrees to comply with such Customer Agreement and Tulip Developer Policy. In the event of any breach by Company of the Customer Agreement or Tulip Developer Policy, Tulip will have the right to immediately suspend Company’s access to and use of the Products without notice upon which Company shall cease development of Customer Content. Upon remediation of the issue to Tulip’s satisfaction, Tulip will restore access to the Products and Company may resume access and use of the Products and development of Customer Content.
Training. During the Term, Company will participate in any Tulip required training reasonably required for the performance of the Services. In addition, Tulip hereby grants Company a limited, revocable, nonexclusive license (without right of sublicense) during the Term to access and use the Tulip online knowledgebase (the “Knowledgebase”) and published Product documentation (the “Documentation” and together with the Knowledgebase and the content contained within the Knowledgebase, the “Tulip Materials”) for the sole. purposes of performing the Services for Customers and for no other purpose. Company shall not copy, modify, transfer, distribute, sell, resell, loan, rent, or otherwise make available access to the Tulip Materials to any third party and shall not remove, alter or obfuscate any notices contained therein or thereon. At Tulip's discretion, at Company’s request, Tulip may provide such additional assistance as reasonably necessary for Company to perform the Company Role and, if applicable, the Services for Customers.
3. PROHIBITIONS
a. Each party acknowledges and agrees that the other party invests substantial time and expense in the hiring and training of its personnel and that the same are valuable assets of the other party. Accordingly, each party hereby agrees that during the Term and for a period of twelve months thereafter, it will not, directly or indirectly solicit or induce any employee or consultant of the other party to terminate or negatively alter his or her relationship with the other party. Notwithstanding the foregoing, nothing in this agreement shall prevent a party (the “Hiring Party”) from soliciting for employment or hiring any employee of the other party (the “Non-Hiring Party”) who (i) makes contact with the Hiring Party on his own initiative and without any solicitation for employment by the Hiring Party, (ii) has been terminated by the Non-Hiring Party more than six months prior to the solicitation, (iii) responds to general solicitations of employment not specifically directed toward employees of the Non-Hiring Party, (iv) is brought to the Hiring Party through recruiters or similar channels that are not in possession of any Confidential Information and which have not targeted employees of the Non-Hiring Party, or (v) is brought to the Hiring Party through recruitment efforts directed to the Non-Hiring Party’s employees initiated before the date hereof.b. Company acknowledges and agrees that Tulip invests substantial time and expense in the development of its relationship with current and potential customers and vendors, and that in each case those relationships are a valuable asset of Tulip. Accordingly, Company hereby agrees that during the Term and for a period of twelve months thereafter, Company will not, directly or indirectly induce any then-current client, customer, supplier, vendor, consultant or other business associate of Tulip to terminate or negatively alter his, her or its relationship with Tulip. In addition, if Company or its Affiliates owns products that could be seen as competitive with Tulip Products (“Competitive Products”), Company shall not offer such Competitive Products to Tulip customers or and prospective customers with respect to which (i) Company and Tulip work together, or (ii) Company provides Services. Examples of Competitive Products are specified on the Order Form.
c. Each party acknowledges and agrees that the foregoing restrictions in Sections 3.a and 3.b are reasonable and necessary for the other party to protect its Confidential Information, inventions, assets and business. However, if any restriction set forth in this Sections is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities, then each party agrees that such provision shall be interpreted to extend only over the maximum period of time or range of activities as to which it may be valid and enforceable.
d. This Agreement is the means through which Tulip authorizes a company to provide the Services. Company shall not hold itself out as endorsed by Tulip or represent that Tulip has endorsed Company’s Services. Company shall not, without Tulip’s prior written consent, hold itself out as certified by Tulip, or represent that Tulip has certified Company’s Services.
4. COMPLIANCE
a. Each party will comply with all laws, rules and regulations applicable to performance of its obligations and exercise of its rights hereunder, including without limitation, in the case of the Company, the Company’s provision of the Services to Customers, including, without limitation, the following: (i) the U.S. Foreign Corrupt Practices Act of 1977 (15 U.S.C. §§78dd-1, et seq.) as amended ("FCPA"), the UK Bribery Act 2010, and other applicable anti-corruption laws; (ii) all data privacy laws, rules, regulations and guidelines; (iii) all export laws, rules, regulations and orders of the United States and all foreign jurisdictions, including without limitation the U.S. Export Administration Regulations (15 C.F.R. Parts 730 – 774), and any other applicable export control laws, rules, regulations or orders; and (iv) any licensing, notification and/or registration requirements relating to such Party’s activities hereunder. Each Party will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury.
b. Company will not directly or indirectly export, re-export, transmit, or cause to be exported, re-exported or transmitted, any Products to any country, individual, corporation, organization, or entity to which such export, re-export, or transmission is restricted or prohibited, including to any country, individual, corporation, organization, or entity under sanctions or embargoes administered by the United Nations, U.S Departments of State, Treasury or Commerce, the European Union, or any other applicable government authority unless such activity is authorized by law pursuant to a license or other government authorization.c. Company agrees that it will participate in Tulip training on legal and ethical requirements as requested by Tulip. In addition, Company agrees to (i) cooperate fully with Tulip in connection with any investigations involving potential violations of this Section 4, including without limitation, allowing Tulip access to relevant books and records, and (ii) submit to periodic background checks of Company by Tulip and provide the information necessary to carry out such background checks.
5. REPRESENTATIONS AND WARRANTIES; DISCLAIMER OF WARRANTIES
a. Representations and Warranties.
i. Each Party represents and warrants to the other the following: (A) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation; the execution, delivery and performance by such Party of this Agreement have been duly authorized by all necessary corporate, partnership or limited liability company action, as applicable, and do not and shall not violate any law; and this Agreement is valid obligation of such Party, enforceable against such Party in accordance with its terms; (B) it has obtained all licenses, authorizations, consents and approvals required by any governmental authority or other third party and necessary for such Party to carry on its business and to execute and deliver this Agreement; and such Party is in compliance with all laws that relate to this Agreement; and (C) neither the execution and delivery of this Agreement, nor the performance of any obligations under this Agreement shall conflict with or result in a default under any of the terms or conditions of any agreement or obligation to which such Party is bound.
ii. Company hereby represents and warrants to Tulip that neither it nor its principal officers, employees, or owners are officers, agents, employees, consultants, or appointees of any government agency, political party, or candidate for political office where Company performs activities hereunder (or elsewhere) that may be involved, directly or indirectly, with the licensing of Products or ordering of services from Tulip.
iii. Company represents and warrants to Tulip that that neither it, nor any of its employees, directors, officers, agents, or Affiliates are listed on, nor affiliated with, any entity or person that is subject to any sanctions or otherwise designated on any list maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority (each a “List”, and collectively the “Restricted Party Lists”). Further, Company hereby confirms that it does not have any business relationships, including any permitted subcontracting arrangement hereunder, with any person or entity identified on a Restricted Party List.
b. DISCLAIMER: Tulip DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, RELATING TO ANY AND ALL PRODUCTS, OR ANY OTHER MATERIALS PROVIDED BY OR ON BEHALF OF Tulip, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT AND/OR ANY WARRANTY THAT COMPANY WILL ACHIEVE ANY PARTICULAR RETURN ON INVESTMENT. Tulip does not warrant that the operation or other use of the Products will be uninterrupted or error free or will not cause damage or disruption to data, computers or networks.
6. INTELLECTUAL PROPERTY
a. Intellectual Property Rights
i. Company acknowledges and agrees that Tulip owns all right, title and interest in and to the Products, all documentation and user manuals for the Products, Tulip’s Confidential Information and Tulip’s trade names, trademarks, logos and service marks (collectively “Marks”) and all modifications, enhancements, improvements, and derivative works thereof, and all intellectual property rights in and to all of the foregoing, including as may incorporate Feedback (“Tulip Property”) and Tulip reserves all rights not expressly granted herein. Company hereby assigns to Tulip all other intellectual property rights it may now or hereafter possess in the Tulip Property and all derivative works, improvements and translations thereof, and agrees to execute all documents, and take all actions, that may be necessary to confirm such rights. Company also agrees to retain all proprietary marks, legends and patent and copyright notices that appear on the Tulip Property and Company agrees not to remove any Tulip Marks, Product identification, copyright notices or notices of proprietary restrictions from the Tulip Property. Company further agrees not to register or otherwise claim any rights to the Tulip Property or Tulip’s intellectual property rights therein.
ii. Notwithstanding the obligations of confidentiality set forth herein, without requiring the written consent of the other party, but subject to compliance with such party’s trademark usage guidelines, each party may (i) use the other party’s name and logo to line-list such party on its internal or public list of similar partners, including on its website listing of partners, and (ii) use the other party’s name, and other trademarks in any internal or public materials or presentations describing the overall relationship between the parties. Notwithstanding the foregoing, each party shall obtain the other party’s prior approval for any press release, any linking of a party’s web page with the other party’s web page, and any other publicity that contains claims, quotes, or endorsements of the other party. Except as explicitly set forth in this Agreement, nothing contained in this Agreement shall grant to Company any right, title or interest in or to Tulip’s Marks. At no time during or after the Term shall Company challenge or assist others to challenge the Tulip’s intellectual property rights in Tulip’s Marks or the registration thereof or attempt to register any marks confusingly similar to Tulip’s Marks. Company agrees not to use or register in any country any trademarks, trade names or internet domain names resembling or confusingly similar to, or consisting in whole or in part of, Tulip’s Marks. Whenever the attention of Company is called by Tulip to any such confusion or risk of confusion, Company agrees to take appropriate steps to remedy or avoid such confusion or risk of confusion at Company’s sole cost and expense. As between Company and Tulip, Company hereby confirms Tulip’s ownership of all of Tulip’s Marks and hereby agrees that any and all rights and goodwill that might be acquired by the use of Tulip’s Marks by Company shall inure to the sole benefit of Tulip. If Company obtains any rights in Tulip’s Marks, Company shall promptly transfer those rights back to Tulip upon Tulip’s request.
iii.
A. During the Term and in compliance with this Agreement, except as set forth in subsection 6.a.iii.B below, Tulip hereby grants to Company a limited, royalty free, terminable, non-exclusive, non-assignable right and license to create and publicly share video footage and photos of the Tulip Platform, including the Marks (such video footage and photos are referred to as “Materials”).
B. Company shall not in any way dispute, impugn, or in any way damage the validity of, Tulip’s right to use and control the use of, or remove, efface or obscure any copyright notices or other proprietary notices or legends from any or all of the Marks or other Tulip Property, either during the Term or thereafter, nor shall Company act or permit action in any way that would impair the rights of Tulip in the Marks or in other Tulip Property. Company acknowledges that its use of the Marks and other Tulip Property shall not create in it any right, title or interest in such Marks or Tulip Property. Company shall not include any Tulip Confidential Information in the Materials.
C. Company’s use of the Marks and other Tulip Property in the Materials shall be consistent with reasonable business judgment and shall display the “®” symbol, as applicable. Company shall provide Tulip with at least five (5) business days’ notice of (i) Company’s intent to publicly share Materials; and (ii) the platform on which Company intends to use for the sharing. Company must provide Tulip with such notice whenever Company intends to use a new platform. Tulip shall have the right to reasonably reject Company’s use of a particular platform for sharing the Materials. Tulip has the right to monitor the quality of the Materials and has the right to require that Company remove Materials from any platform within 24 hours of such request. Company has the right to request from time to time samples of the Company’s use of the Marks and of the Materials. Company shall not include any Beta features in the Materials without Tulip’s prior written consent in each instance.
b. Feedback. Company from time to time may submit feedback with respect to the Products to Tulip. Company 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 Company or any other person or entity.
c. Customer Content. As between the Parties, Company will retain all right, title and interest in and to Customer Content created by Company, except for those portions of such Customer Content containing Tulip Property, and provided, however, that Company acknowledges and agrees that (i) Tulip has an existing library of applications for the Tulip Platform (“Library Applications”) and is continuously adding new applications, some of which may be similar to Customer Content or have the same functionality as Customer Content, and nothing in this Agreement grants Company or a Customer ownership of any existing or future Library Applications and (ii) Tulip and third parties may develop applications for Tulip’s library of applications or as a service for other customers that are similar to, or which may have the same functionality as, Customer Content, provided, in each case of (i) and (ii) that such development is done without use of Company’s or its Customer’s Confidential Information. Further, Company acknowledges and agrees that nothing in this Agreement shall prevent Tulip from commercializing its library of applications and that Company shall not, directly or indirectly, bring any claim, demand, action, suit or proceeding against Tulip or its Affiliates or their officers, directors, employees, agents or customers with respect to their respective commercial exploitation of the library of applications, including without limitation any development, sale, license or distribution of applications that are substantially the same as or similar to the Customer Content.
7. CONFIDENTIALITY
a. Each party (the “Disclosing Party”) may from time to time during the Term 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 Products and the Tulip Materials constitute Confidential Information of Tulip.
b. 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 (i) 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 (ii) 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 7 (Confidentiality) 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 (1) an injunction restraining such breach, without being required to show any actual damage or to post security or other bond; or (2) a decree for specific performance of the applicable provision of this Agreement.
c. The Receiving Party’s obligations under this Section 7 will not apply to any portion of the Disclosing Party’s Confidential Information if the Receiving Party can document that such information: (i) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (ii) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (iii) is, or through no fault of the Receiving Party has become, generally available to the public; or (iv) 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 (1) approved in writing by the Disclosing Party, (2) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (3) required by law, rule, regulation 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 and discloses only that portion of the Confidential Information as it is advised by its legal counsel is legally required to be disclosed. Any Confidential Information required to be disclosed shall otherwise remain subject to the terms and conditions of this Agreement.
d. The Receiving Party acknowledges that all Confidential Information of the Disclosing Party that may be disclosed to the Receiving Party shall at all times, remain the exclusive property of the Disclosing Party.
e. Company 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 pursuant to Section 7.c(1) through (3) .
f. The obligation of confidentiality and non-use set forth in this Section 7 shall survive for a period of three (3) years beyond the expiration or termination of this Agreement; provided, that, with respect to trade secret information, such obligation shall continue until such information is no longer eligible for trade secret protection under applicable law through no fault of the receiving party.
8. INDEMNIFICATION
a. Company shall defend Tulip, its Affiliates and their respective directors, officers, shareholders, employee and agents, and their respective successors and permitted assigns, from and against any third party claim arising from or relating to (i) any Services or Customer Content, including but not limited to any claims by Customers or any claims that the Services or Customer Content violate, infringe or misappropriate the intellectual property rights, proprietary rights or rights of privacy or publicity of a third party or have caused harm or damage to a third party; (ii) to any acts or omissions of Company, or any of its Affiliates or subcontractors, or their respective officers, directors, employees, agents, including but not limited to (A) negligence, willful misconduct or other tortious conduct, (B) representations, warranties, or statements not specifically authorized by Tulip herein or otherwise in writing, or (C) violation of any applicable laws, rules, regulations, or guidelines; or (iii) unauthorized use, misuse or alteration of the Products or any violation by Company of the Terms or the Tulip Developer Policy.
b. Tulip will defend Company from and against any claim by a third party brought against Company contending that the Products when used as authorized under and during the Term of 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 Company from and against any damages and costs finally awarded against Company or agreed in settlement by Tulip (including reasonable attorneys’ fees) resulting from such claim. The obligations of Tulip under this Section 8.b will not apply: (i) if the Products are modified by any party other than Tulip or its authorized contractors, but solely to the extent the alleged infringement is caused by such modification; (ii) if the Products are 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; (iii) to any use of the Tulip in violation of this Agreement or not in accordance with the Documentation; (iv) to any action arising as a result of the Services or Customer Content; (v) an allegation that does not state with specificity that the Products are the basis of the claim; (vi) if Company settles or makes any admissions with respect to a claim without Tulip’s prior written consent; or (vii) an allegation made against Reseller prior to Reseller entering into this Agreement or any allegation based upon any action by Reseller prior to entering into this Agreement. THIS SECTION 8.b 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.
c. The indemnified party agrees to give the indemnifying party (i) prompt written notice of any claims for which the indemnifying party is obligated to indemnify the indemnified party under the foregoing indemnification (provided, that failure to provide prompt written notice shall not relieve the indemnifying party of its indemnification obligations except to the extent the indemnifying party’s defense of the claim is materially prejudiced); and (ii) the opportunity to defend, negotiate, and settle such claims at the indemnifying party’s expense (provided, that any settlement shall require the indemnified party’s prior written consent, which will not be unreasonably withheld). The indemnified party may participate in the defense of the claim by the indemnifying party at the indemnified party’s expense. The indemnified party shall provide the indemnifying party, at the indemnifying party’s expense, all information in its possession, all authority, and all assistance necessary to enable the indemnifying party to carry on the defense of such suit. If the indemnifying party fails to promptly assume the defense of the claim the indemnified party may do so at the indemnifying party’s expense and any settlement by the indemnified party shall require the indemnifying party’s consent, which will not be unreasonably withheld.
9. LIMITATIONS OF LIABILITY
a. EXCEPT FOR A PARTY’S VIOLATION, MISAPPROPRIATION OR MISUSE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, BREACH OF OBLIGATIONS OF CONFIDENTIALITY UNDER THIS AGREEMENT, INDEMNIFICATION OBLIGATIONS, OR VIOLATION OF APPLICABLE LAWS, EACH PARTY’S MAXIMUM AND CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER BASED UPON WARRANTY, CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE GREATER OF FEES PAID AND PAYABLE UNDER THE APPLICABLE ORDER FORM DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE AND $10,000.
b. EXCEPT FOR A PARTY’S VIOLATION, MISAPPROPRIATION OR MISUSE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, BREACH OF OBLIGATIONS OF CONFIDENTIALITY UNDER THIS AGREEMENT, INDEMNIFICATION OBLIGATIONS, OR VIOLATION OF APPLICABLE LAWS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT, ANTICIPATORY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS OR EXPENSES OR LOSS OF GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS OF USE OR COSTS TO PROCURE SUBSTITUTE GOODS OR SERVICES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CLAIMS OR DEMANDS.
c. A Party shall not bring any suit or action against the other Party for any reason whatsoever more than one year after the related cause of action has accrued.
10. TERM AND TERMINATION
a. This Agreement shall be effective as of the Effective Date and shall continue until the Expiration Date set forth on the Order Form (the “Initial Term”). This Agreement shall automatically renew for unlimited one-year periods (“Renewal Periods”) following the Initial Term (the Initial Term and all Renewal Periods are referred to together as the “Term”), unless terminated by either party in accordance with this Section.
b. This Agreement may be terminated: (i) by either party if the other party breaches any of its material obligations under this Agreement and, in the event the breach is of a curable nature, fails to remedy such breach within thirty (30) days after written notice of such breach is provided to the breaching party; provided, however, that Tulip may cancel this Agreement immediately, without opportunity for cure, in the event that Company violates Section 3.b.; (ii) immediately upon written notice by Tulip to Company (A) if Company attempts to sell, assign, delegate or transfer any of its rights and obligations under this Agreement without having obtained Tulip’s prior written consent thereto; or (B) in the event a background check reveals matters that in Tulip’s discretion make Company unsuitable for the Company Role hereunder; any such event in (A) or (B) will be a material breach of this Agreement which may result in its immediate termination; or (C) if there is any material change in the management, ownership or control of Company; (iii) by either party for convenience and without cause, by giving sixty (60) days’ prior written notice of termination to the other party; or (iv) automatically without notice in respect of either party if (A) any form of receiver, liquidator, or similar officer is appointed or petition of the same is made; (B) any form of creditor arrangement is entered into; (C) any dissolution, liquidation, proceedings for the same, or petition for the same filed and not dismissed within (60) days; or (D) any general inability to pay its debts, within the meaning of the insolvency or bankruptcy legislation.
c. Effect of Expiration or Termination Each party will return to the other party all of the other party’s Confidential Information (including without limitation all copies, extracts and summaries thereof) in such 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, and will certify in a writing signed by an officer of such party that it has fully complied with its obligations under this subsection. Upon expiration or termination of this Agreement, Company shall cease all access to and use of the Tulip Property (as defined in Section 6.a.i above). Expiration or termination of the Agreement shall not relieve the parties of any obligation accruing prior to such expiration or termination. The provisions of Sections 3 and 5 through 11 shall survive the termination or expiration of this Agreement.
11. MISCELLANEOUS
a. Entire Agreement; Headings; Amendments This Agreement constitutes the entire Agreement between Tulip and Company relating to the subject matter hereof and supersedes and cancels any prior and contemporaneous agreements, negotiations, commitments and writings in respect to the subject matter hereof. The headings of this Agreement are inserted for convenience only and shall not be deemed to constitute a part of this Agreement or to affect the construction hereof. No amendment, modification or alteration of the terms of this Agreement shall be binding unless the same shall be in writing and is executed by a duly authorized officer of the parties hereto, except that any of the terms or provisions of this Agreement may be waived in writing at any time by the party which is entitled to the benefits of such waived terms or provisions. No waiver of any of the provisions of this Agreement shall be deemed to or shall constitute a waiver or any other provision hereof (whether or not similar). No delay on the part of any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof.
b. Governing Law All disputes arising under, out of, or in any way connected with this Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts without reference to conflict of laws principles (and specifically excluding the Uniform Computer Information Transactions Act). The parties hereby expressly disclaim the application of the U.N. Convention for the International Sale of Goods. All disputes arising under, out of, or in any way connected with this Agreement shall be litigated exclusively in the state or federal courts situated in the Commonwealth of Massachusetts, and in no other court or jurisdiction. Notwithstanding the foregoing or anything to the contrary, Tulip shall have the right to bring a claim in any court of competent jurisdiction to enforce any intellectual property rights and/or protect any confidential information. Each party stipulates that the state and federal courts situated in the Commonwealth of Massachusetts shall have personal jurisdiction over its person, and each party hereby irrevocably (i) submits to the personal jurisdiction of said courts and (ii) consents to the service of process, pleadings, and notices in connection with any and all actions initiated in said courts. The parties agree that a final judgment in any such action or proceeding shall be conclusive and binding and may be enforced in any other jurisdiction. Each party waives its right to trial by jury in connection with any dispute arising out of this Agreement.
c. Force Majeure The parties shall not be liable for the failure or delay in performing any obligation under this Agreement if and to the extent such failure or delay is due to causes beyond the reasonable control of the affected party, including (i) acts of God; (ii) weather, fire or explosion; (iii) war, terrorism, invasion, riot or other civil unrest; (iv) governmental laws, orders, restrictions, actions, embargoes or blockages; (v) national or regional emergency; (vi) injunctions, strikes, lockouts, labor trouble or other industrial disturbances; (vii) shortage of adequate fuel, power, materials or transportation facilities; (viii) pandemics or epidemics; (ix) acts of government; or (x) any other event which is beyond the reasonable control of the affected party, provided that the party affected shall promptly notify the other of the force majeure condition and shall exert reasonable efforts to eliminate, cure or overcome any such causes and to resume performance of its obligations as soon as possible.
d. Assignment: Subcontracting Company will not assign this Agreement or assign its rights hereunder, without obtaining the prior written consent of Tulip, 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 Company shall be deemed an assignment hereunder and is not permitted without Tulip’s prior written consent. Tulip may freely assign this Agreement. Subject to the foregoing, the terms and conditions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to or shall confer upon any other person or entity other than the parties and their respective successors and permitted assigns any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement. Company will not engage subcontractors without the prior written approval of Tulip. Company shall be responsible for any actions or omissions of its subcontractors as if Company took such actions or omissions, and Company shall enter into an agreement with such subcontractors requiring that such subcontractors comply with all of the terms and conditions of this Agreement. Company may engage Tulip as a subcontractor pursuant to the Subcontractor Agreement attached hereto as Addendum A and pursuant to the related Statements of Work agreed to between the parties.
e. Counterparts; Electronic Signatures This Agreement may be executed in two (2) or more counterparts, each which shall for all purposes be deemed an original and all of which shall constitute 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 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.
f. Notices Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth in the preamble to this Agreement 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.
g. Remedies 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.
h. Severability If any provision of this Agreement is held to be invalid or unenforceable, all other provisions shall nevertheless continue in full force and effect and the parties shall in good faith amend the invalid/unenforceable provision(s) to replicate, as closely as possible, the original intent of the parties.
i. Relationship of the Parties. The parties hereunder are independent contractors. Neither party shall have any right to assume, create, or incur any expense, liability, or obligation, express or implied, on behalf of the other party. This Agreement is not intended to be nor shall it be construed as a joint venture, association, partnership or other form of a business organization or agency relationship.