Tulip Interfaces, Inc.

Last Updated: May 08, 2025

Important Note: The official language of all Tulip contracts and other legal documents is English, which shall prevail over any other language used in any translated document.

These Terms of Service (“Terms of Service” or “Agreement”) are entered into by and between Tulip Interfaces, Inc., a Delaware corporation with offices at 77 Middlesex Ave, Suite A, Somerville, MA, 02145 (“Tulip”) and the entity or person placing an order for or accessing the Services (“Customer” or “you”) and govern Customer’s use and Tulip’s provision of the Services (defined below). The terms of each Order Form (defined below), SOW (defined below), exhibit or addendum attached hereto, and document linked herein are incorporated into and made a part of this Agreement.

Orders by Affiliates: Subscriptions to Services are based on the needs of the particular customer and, thus, are not transferable. An Affiliate (defined below) of Customer may place orders for Services by executing a separate Order Form and/or SOW with Tulip and thereby agreeing to be bound by all terms and conditions of this Agreement, in which case all references to "Customer" in this Agreement shall also include the Customer Affiliate which executes the Order Form and/or SOW. If Tulip allows Customer to order Services on behalf of Customer Affiliates to enable each such Customer Affiliate to use Services on its own behalf, then Customer must enter into and execute this Agreement and any applicable Order Form or SOW on behalf of each such Customer Affiliate, and Customer must remain responsible for the compliance of such Affiliates with the terms of this Agreement and the applicable Order Forms and SOWs, including without limitation payment of all fees due thereunder.

Modifications to Terms of Service: From time to time, Tulip may modify these Terms of Service; provided, that Tulip will notify Customer of any modifications that are materially adverse to Customer, and such materially adverse modifications will not become effective until renewal of Customer’s then-current Subscription Term or Customer’s express acceptance of the modified Terms of Service. Continued use of the Services after the updated version of these Terms of Service go into effect will constitute Customer’s acceptance of such updated version.

NOTICE OF ARBITRATION AND CLASS ACTION WAIVER. Except for certain kinds of disputes described in Section 15, you agree that disputes arising under this Agreement will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND TULIP ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.

Definitions:

“Acceptable Use Policy” or “AUP” means Tulip’s Acceptable Use Policy which is the set of rules for what Users can and can’t do while using the Tulip Platform and is set forth at https://tulip.co/legal/acceptable-use-policy/ as the same may be updated from time to time.

“Access Credentials” means login information, API keys, passwords, security protocols, and policies through which Users access and use the SaaS Services.

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“Application” 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.

“Automations” means cloud-hosted, configurable workflows that run continuously and independently of Applications. A “Task” is a unit of work performed every time an Automation does an action or executes a decision (e.g., fetch data from an application by making an API call).

“Beta Versions” means versions of new functionality for the Tulip Products or Saas 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.

“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. The “Tulip Library” means a feature of the Tulip Platform that comprises Library Content, which is made available from time to time by Tulip for use with the Tulip Platform. “Library Content” is Content hosted on the Tulip Library that a Customer can import to their instance and all corresponding Updates provided by Tulip to Customer. Library Content does not include the Tulip Player. “Customer Content” means Content that is for use by a Customer solely for its own business purposes with the SaaS Services. The creation and use of all Customer Content is subject to Tulip’s online Developer Policy, which can be found at: https://tulip.co/legal/developer-policy/. “Tulip Content” means Integrations and the Tulip Library and its contents, including all corresponding Updates provided by Tulip to Customer.

“Contractors” means Customer’s independent contractors and consultants.

“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 (other than Usage Data).

“Device Drivers” means the device drivers which are used to connect Content to Customer’s Supported Devices, including, with respect to Device Drivers developed by Tulip, 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 Base (i.e., the Tulip online portal made available by Tulip to its customers at https://support.tulip.co/ as may be updated by Tulip from time to time).

“Integrations” means the object code version and all related Updates of any components, connectors, or code made available by Tulip to enable the Tulip Player, Tulip OS, and Tulip Hardware to connect to Third Party Platforms.

“Intellectual Property Rights” means 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.

“Interfaces” means the total number of devices that are enabled to run one or more applications on the Tulip Player, through a web browser or otherwise. Interfaces could comprise, without limitation, a touchscreen at a physical work station, a mobile station with a tablet, a mobile phone running Tulip Applications, an application-based dashboard and/or an application running on OEM equipment. An Interface is considered active in a given month if it has had activity during at least one day during that month. Activity for an Interface is defined as running one or more Tulip Applications on that Interface.

“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” means professional services provided by Tulip to Customer, which may include training services, installation, integration or other consulting services.

“SaaS Services” means the provision of access to Tulip’s proprietary Frontline Operations software service (the “Tulip Platform”), the Tulip Content running on such platform, and the Tulip Player. The SaaS Services are provided on a software as a service basis over the Internet, as hosted by Tulip or its third party hosting provider. The “Tulip Player” is the object code version of Tulip’s proprietary software product referred to as Tulip Player, which runs on Interfaces.

“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) any data that would require notification to government agencies, individuals or law enforcement if subject to unauthorized access, use or disclosure; (vi) any data that 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 SaaS Services, Support Services and Professional Services.

“Subscription Term” means the period of time set forth in an Order Form during which Customer has the right to access the SaaS Services.

“Support Services” means the technical support and maintenance services for the SaaS Services 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 OS and/or the Tulip Player.

“Taxes” means any sales, use, GST, value-added, withholding, or similar taxes, customs, and any tariffs, 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 separate or third party software, software-as-a-service, data sources or other products or services that are independent from, but interoperate with or connect to, the Tulip Platform in accordance with the Documentation and that are procured by Customer and are not provided by Tulip.

“Third Party Developer” means any third party that submits content for inclusion in the Tulip Library.

“Tulip APIs” means Tulip’s proprietary application programming interfaces.

“Tulip API License Agreement” means the terms and conditions required for access to and utilization of the Tulip APIs, which can be found at https://tulip.co/legal/api-license-agreement/ as the same may be updated from time to time.

“Tulip Hardware” means Tulip Edge IO and Tulip Edge MC and other hardware products Tulip may make generally commercially available to its customers for purchase from time to time.

“Tulip Products” means the Tulip Player, Tulip Hardware and the Tulip OS.

“Tulip Property” means the SaaS Services 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.

“Tulip SDK” means certain JavaScript code, software development kits (SDKs) and other code and tools provided by Tulip to Customer for use with the SaaS Services, including all Updates provided by Tulip to Customer.

“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 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 Products and Services, (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 Player, the Tulip OS, and/or Tulip Content made generally commercially available by Tulip pursuant to the Tulip Support Program during the applicable Subscription Term.

“Usage Data” (or telemetry data) means the analytics and usage information, metadata or other similar data collected or derived by Tulip from Customer’s and its Users’ use of the Tulip Platform.

“User” means any Admin User or App User. An “Admin User” means Customer’s employees and/or Contractors that Customer authorizes to access and use the SaaS Services, the Tulip OS, the Tulip Content, Tulip SDK and Tulip APIs. “App User” means Customer’s employees and/or Contractors that Customer authorizes to access and use the Tulip Player and Content.

1. Services.

1.1. Overview. Subject to the terms and conditions of this Agreement, including without limitation payment of all fees under each Order Form and SOW, Tulip will deliver the Services ordered by Customer in accordance with each Order Form and SOW. The SaaS Services are licensed to Customer on a subscription basis for the limited Subscription Term set forth in the applicable Order Form.

1.2. Access to SaaS Services. Subject to Customer’s compliance with the terms and conditions in this Agreement, the Documentation, and each Order Form, Tulip will make the SaaS Services available to Customer during the applicable Subscription Term.

1.2.1. License. Tulip grants to Customer a worldwide, revocable, non-exclusive, non-transferable, non-sublicensable right during the Subscription Term, solely in connection with Customer’s use of the SaaS Services and Tulip OS, if applicable, solely for Customer’s own internal business purposes, and not for the benefit of any third party to: (a) authorize (i) Admin Users to access and use the Tulip Platform solely for purposes of developing the Customer Content and setting up and maintaining a cloud backend for Content deployed using the Tulip Platform, and (ii) App Users to indirectly, through the use of Content, access the portion of the Tulip Platform necessary to enable the App User to access and use the Content, including without limitation to download Content from the Tulip Platform to the Tulip Player and to access and use the Content as deployed using the Tulip Player; (b) download, install, execute and use Tulip Player on Interfaces; (c) use any Tulip APIs made available by or on behalf of Tulip to Customer as part of the Tulip Platform for the sole purposes of accessing and using the Tulip Platform and only in accordance with the Tulip API License Agreement; and (d) to use, copy and deploy any Tulip Content and/or the Tulip SDK to which Tulip provides Customer access. Tulip reserves all other rights not expressly granted in this Agreement.

1.2.2 Non-Production Instances. If Tulip makes access to a non-production instance of the Tulip Platform available to Customer, Customer’s right to use the non-production environment shall be limited to evaluation and testing features and functionality of the Tulip Platform and the development of Content, and Customer shall not use any non-production environment for production purposes.

1.2.3 Tulip Content; Third Party Developers. The Tulip Content is not part of the SaaS Services or any other Services provided by Tulip and is made available to Customer as a free, optional offering. Thus, Customer’s sole and exclusive remedy for any issues with the Tulip Content is to cease use of the Tulip Content. Further, if Customer does not install an Update to the Tulip Content, the Tulip Content may cease to operate. Additionally, Third Party Developers voluntarily submit Content for inclusion in the Tulip Library for free use by others, which free use is also optional and not included in or required for use of the SaaS Services. Thus, Tulip is not responsible for Third Party Developers or any content created and/or submitted to the Tulip Library by them (“Third Party Developer Content”). However, with respect to Third Party Developer Content, Tulip conducts a security review of such Content before submission to the Tulip Library. In the event that a security vulnerability is discovered in Third Party Developer Content, Tulip will follow its Incident Response Handling protocol. Each security review involves a senior Tulip software engineer reviewing and testing any code that is part of Third Party Developer Content. THE TULIP CONTENT AND THIRD PARTY DEVELOPER CONTENT ARE PROVIDED BY TULIP AND OTHER CONTRIBUTORS “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL TULIP OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR SIMILAR DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF TULIP CONTENT AND/OR THIRD PARTY DEVELOPER CONTENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

1.2.4 Trial Subscriptions; Beta Versions. If Customer receives a trial subscription, evaluation subscription, or free educational license to a SaaS Service (a “Trial Subscription”), then Customer may use the SaaS Services which are subject to the Trial Subscription only for evaluation purposes, in accordance with this Agreement, and 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 SaaS Services and may have limited functionality and features. Customer’s right to access and use the SaaS Services will terminate at the end of the Trial Period unless Customer elects to purchase a non-trial or evaluation version of the SaaS Services under a separate Order Form with Tulip. Tulip has the right to terminate a Trial Subscription at any time for any reason. 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 discretion and risk. Due to the unproven nature of Beta versions, they are provided “as is” and without warranty. Notwithstanding anything to the contrary in the Agreement, the warranties, indemnities and other obligations of Tulip hereunder shall not apply to Trial Subscriptions or Beta Versions, all of which are provided “as is” and “as available.” Further, any data Customer enters into the Tulip Platform, and any customizations made by or for Customer, during Customer’s Trial Subscription will be permanently lost unless Customer orders a subscription to the same Services as those covered by the Trial Subscription or exports such data, before the end of the Trial Period.

1.2.5 Use by Contractors and Affiliates. Customer may permit its Contractors and Affiliates to serve as Users for Customer provided that any use of the Service by each such Contractor or Affiliate is solely for the benefit of Customer. Customer shall be responsible for each User’s compliance with this Agreement, and acts or omissions by any User shall be deemed acts or omissions by Customer.

1.2.6 Modifications of SaaS Services. Tulip reserves the right to modify the Saas Services from time to time, including without limitation implementing Updates, and Tulip will update the applicable Documentation accordingly. During the Subscription Term, Tulip will not make a Material Reduction, except as necessary to address (i) legal requirements, (ii) changes imposed by Tulip’s vendors or subcontractors (e.g. the termination of Tulip’s relationship with a provider of software or services which are required for the provision of the Tulip Products and Services), or (iii) security risks that cannot be resolved in a commercially reasonable manner. “Material Reduction” means a material reduction or discontinuation of any Core Functionality of the Tulip Platform or a Tulip Product, other than a reduction or discontinuation resulting from third party systems used by Customer and not included in the Documentation, for which Tulip does not make available one or more substitute functionalities. “Core Functionality of the Tulip Platform or a Tulip Product” means capabilities essential to the performance of the functionality set forth in the applicable Documentation and for which there is no workaround. Tulip will notify Customer of any Material Reduction as soon as reasonably practicable, and if Tulip does not cure such Material Reduction or provide one or more substitute functionalities within 30 days of such notice, Customer shall have the right to terminate the affected Order Form within and up to 30 days after the end of such cure period by sending Tulip a written termination request. In the event of such termination, Tulip will refund Customer any prepaid but unused fees applicable to the affected Order Form. In the event that Customer believes a Material Reduction has occurred and no notice has been provided by Tulip, Customer shall provide notice to Tulip of the alleged Material Reduction to Tulip immediately, and if Tulip confirms the Material Reduction, Tulip’s cure period will commence upon Tulip’s confirmation of such Material Reduction. Further, the support and service level availability terms described in the documentation for the applicable Tulip Support Program, as attached to the Order Form, and in the SLA, if applicable, 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.

1.3 Tulip AI. Any AI capability or functionality made available by Tulip, including without limitation any capability or functionality labeled or otherwise identified by Tulip as AI-powered shall be referred to as “Tulip AI.” Customer or Users may provide or make available input to be processed by Tulip AI (“Input”), and receive output generated by Tulip AI based on any Input (“Output”). For clarity Input does not include any input or information provided by Tulip for processing (e.g., to pre-generate responses or to train models).

When using Tulip AI, Input and Output are Customer Data for purposes of this Agreement. As such, all terms in this Agreement regarding use and ownership of Customer Data shall apply to Input and Output. Customer acknowledge that due to the nature of AI, Output may not be unique, and Tulip AI may generate the same or similar output for Tulip or other third parties. Responses that are requested by and generated for Tulip or other customer users are not considered Customer Data. When using Tulip AI, Customer must not represent that Output was human-generated when it is not.

Tulip uses technology provided by third party service providers in Tulip AI. In Customer’s use of Tulip AI, including Customer’s use of Input or Output, Customer acknowledges and agrees to comply with, and to require each of its Users to comply with, the policies available here, which may change from time to time.

1.4. Third Party Platforms; Tulip APIs. The Tulip Platform may support connections with certain Third-Party Platforms. Customer understands and agrees that the rights granted in Section 1.2 do not include a license to any Third-Party Platforms and that Customer is responsible to obtain its own license to any Third-Party Platform that Customer desires to use with the Tulip Platform. Any use of a Third-Party Platform by Customer, including but not limited to any implementation, customization, or any exchange of data between Customer and any Third-Party Platform, is solely between Customer and the applicable Third-Party Platform. In order for the Tulip Platform to communicate with 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. In addition, Tulip assumes responsibility for the connection of Tulip APIs with the Tulip Platform only and assumes no responsibility or liability with respect to the use of Tulip APIs with any Third Party Platforms or applications, systems, services or sources other than the Tulip 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 access to all required amendments to the associated Tulip Product Documentation. Updates to the Tulip Platform hosted by Tulip and automatic Updates to the Tulip Player, Tulip OS and On-Premise Connector Hosts will be deployed by Tulip. Customer will be responsible for installing manual Updates to the Tulip Player, the Tulip OS and On-Premise Connector Hosts, and all Updates to Tulip Content if any, and all Updates must be promptly installed by Customer. If Customer does not install a required Update, the Tulip Player, Tulip OS, On-Premise Connector Hosts, or Tulip Content, 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 shall use the updated Tulip SDK and updated Tulip APIs and cease use of the non-updated versions. Updates as part of Support Services do not include new features, functionality and products for which Tulip charges a separate fee or which Tulip does not make generally commercially available to customers. The content and timing of all Updates shall be decided upon by Tulip in its sole discretion.

3. Professional Services.

3.1 Overview – Professional Services. Tulip may provide Professional Services for a separate fee in connection with the provision of the SaaS Services. The purchase of Professional Services shall be listed in the applicable Order Form, and a Statement of Work (“SOW”) referencing this Agreement and executed by both Parties shall describe the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information.

3.2 Customer Obligations – Professional Services. 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: providing necessary materials, information, data, responses to inquiries, feedback, and access to Customer facilities, all as reasonably required.

3.3 Acceptance – Professional Services. As part of the Professional Services, Tulip may create for Customer deliverables, as detailed in the applicable SOW. Unless otherwise specified in the SOW or Order Form, upon completion of a deliverable, 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 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 its reasonable and good faith judgment, determines 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 and Tulip, in accordance with the procedures set forth in the SOW, will work together to correct any deficiencies or, if necessary, complete a change order. Acceptance of any Professional Services, including a deliverable, will not affect Customer’s rights or remedies under the “Warranty” section of this Agreement.

3.4 Rights in Contracted Property – Professional Services. Customer shall have the right to use any deliverables provided as part of the Professional Services in support of Customer’s authorized use of the Tulip Products and SaaS Services, subject to the terms and conditions of the Agreement, Order Form and applicable SOW. The parties acknowledge that Tulip does not perform custom development work of the Tulip Products or SaaS Services 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 Products and SaaS Services, modifications to the Tulip Products and SaaS Services, training materials and Documentation. Accordingly, except as set forth in Section 6.1 below, Tulip will retain all right, title and interest in and to any such deliverables, including without limitation all Intellectual Property Rights therein and thereto. Deliverables generated as part of Professional Services are developed solely to be used with the Tulip Platform.

3.5 Termination of Professional Services. Termination provisions are set forth in the applicable SOW. If the SOW does not have termination provisions, the terms in this Section 3.5 shall apply. Customer may terminate a SOW for Professional Services at any time for convenience upon 10 days’ written notice to Tulip. Tulip may terminate a SOW for Professional Services upon 10 days’ written notice to Customer if Customer is in breach of its obligations set forth in the applicable SOW or in Section 3.2 herein and fails to cure such breach within such 10-day notice period. Upon any termination of a SOW or Order Form, Customer will pay, in accordance with the payment terms set forth herein, 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 fixed cost basis, as appropriate).

4. Customer Obligations and Use Restrictions.

4.1. Use Obligations. 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.

4.2 License Conditions. Except to the extent expressly permitted under this Agreement, Customer agrees as a condition of the licenses provided herein that it must not (and will not permit any third party to): (a) rent, lease, provide access to, sublicense, transfer or otherwise make available the Tulip Products or Services to a third party; (b) use the Tulip Products or Services to provide, or incorporate the Tulip Products or Services 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 Products or Services, 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 Products or Services; (e) copy or modify the Tulip Products or Services or any Documentation, or create any derivative work based on any of the foregoing; (f) create Internet "links" to or from the SaaS Services or "frame" or "mirror" any content forming part of the Tulip Products or Services, 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 Products or Services; (h) without Tulip’s prior written consent, publicly disseminate information regarding the performance of the Tulip Products or Services; or (i) share its Access Credentials, or allow use of the same Access Credentials simultaneously by two or more Users. Customer is responsible for unauthorized access to its Access Credentials and 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.

4.3 Required Equipment. Customer is responsible for obtaining and maintaining any equipment and ancillary services needed to connect to the Internet in order to access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”), excluding the equipment and technology necessary for Tulip to host the Tulip Platform and make the SaaS Services available to you. Customer is responsible for maintaining the security of the Equipment and the security of the transmission of data to the Tulip Platform.

4.4 Customer Data; Customer Compliance. Customer is solely responsible for the accuracy, content and legality of all Customer Data submitted to the Tulip Platform. Tulip is solely the Service provider, and it is Customer’s own responsibility to ensure correct and compliant implementation and use of and output from the Services.

4.5 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 Products and Services are neither HIPAA nor PCI DSS compliant. Tulip will have no liability or responsibility under this Agreement for Sensitive Personal Information, notwithstanding anything to the contrary herein.

4.6 Suspension; Other Actions. Tulip 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. In addition, 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. Tulip will use reasonable efforts to notify you of any suspension or termination and give you the opportunity to resolve the issue prior to suspension or termination, if feasible.

5. Payment of Fees.

5.1. Subscription Fees. In consideration for the rights granted hereunder, Customer will pay to Tulip the fees set forth in the applicable Order Form in accordance with the terms therein. For clarity, Customer’s subscription payment grants Customer access to the Tulip Platform, and Customer’s subscription payment obligation is not conditioned upon the completion of any implementation or system integration activities. Fees set forth in the Order Form correspond to total subscriptions purchased and, as such, 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. If Tulip believes that Customer has exceeded such subscriptions and/or limitations through increased usage that is not in accordance with the terms of the applicable Order Form, Tulip will notify Customer. If 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, and Customer shall be responsible for such increased amount. Tulip may implement new or modified features or functionality (“New Features”) to the Tulip Platform and/or Tulip Products after the Effective Date; Tulip may condition Customer’s election to use New Features on the payment of additional fees provided that Tulip generally charges other customers for such New Features.

5.2 Subscription Payment. Unless otherwise specified in any Order Form, all invoices issued by Tulip will be due and payable upon execution of this Agreement. 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 Subscription Term and the license levels set forth in the Order Form for the initial Subscription Term only. Following the initial Subscription Term, fees for the same license levels may be subject to an automatic adjustment increase of up to ten percent (10%) per year. At any time, fees for other license levels may be different.

5.3. Professional Services Fees; Payment. Customer will pay Tulip for the Professional Services at the rates specified in the applicable SOW or Order Form. Professional Services are provided on either a time-and-materials or fixed fee basis, as provided in an SOW or Order Form. Tulip will periodically update Customer on the status of the Professional Services and the fees accrued under SOWs or Order Forms. Charges for Professional Services 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.

5.4 Late Payment (Undisputed Amounts); Suspension. Any late payments for undisputed amounts will be subject to a service charge equal to the lower of 1.5% per month of the amount due or the maximum amount allowed by law. Customer will be responsible for all reasonable expenses (including attorneys' fees) incurred by Tulip in collecting such delinquent amounts. Further, if Customer's payment for Services is overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Tulip may suspend Customer’s access to such Services until such amounts are paid in full.

5.5 Taxes. 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. If Tulip is obligated to collect or pay any Taxes, the Taxes will be invoiced to Customer and Customer will pay such Taxes to Tulip, unless Customer provides Tulip with a timely and valid tax exemption certificate in respect of those Taxes. Customer will be liable to pay (or reimburse Tulip for) any taxes, interest, penalties, or fines arising out of any mis-declaration by Customer.

5.6 Disputed Invoices. 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.

6. Customer Data and Customer Content.

6.1. Rights in Customer Data and Customer Content. 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 Products and Services 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 solely to perform services for or on behalf of Tulip solely to the extent necessary to provide the Tulip Products and Services to Customer and its Users. Customer will retain all right, title and interest (including any and all Intellectual Property Rights) in and to Customer Content created by or on behalf of Customer for its use with the Tulip Platform, except for those portions of such Customer Content comprising Tulip Property. Customer Content is by its nature only usable with the Tulip Platform. Further, Customer acknowledges and agrees that (i) Tulip has an existing library of Content for the Tulip Platform and is continuously adding new Content, some of which may be similar to Customer Content or have the same functionality as Customer Content, and nothing in this Agreement grants Customer ownership of any existing or future Library Content; and (ii) Tulip and third parties may develop content for Tulip’s library of Content or as a service for other customers that are similar to, or which may have the same functionality as, Customer Content developed by Tulip for Customer, provided, in each case of (i) and (ii) that such development is done without use of Customer’s Confidential Information. Customer acknowledges and agrees that nothing in this Agreement shall prevent Tulip from commercializing its library of content and that Customer 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 content, including without limitation any development, sale, license or distribution of content that is substantially the same as or similar to the Customer Content.

6.2.Usage Data. Tulip may collect and use Usage Data to analyze, improve, support and operate the Tulip Products and SaaS Services, to understand how Users interact with the Tulip Products and SaaS Services, to assist Users that experience difficulties in operating the Tulip Products and SaaS Services, and otherwise for any business purpose during and after the term of this Agreement; provided, however, that Tulip may not disclose Usage Data to any third party unless (a) the disclosure is made strictly in accordance with Section 12; or (b) the Usage Data has been aggregated and anonymized and does not identify, and cannot be reasonably associated with, Customer, any Customer Affiliate, any User or other identifiable individual, or any Customer Confidential Information.

6.3.Loss of Customer Data. In the event of a loss of Customer Data from the Tulip Platform, which loss is not due to the deletion of data from the Tulip Platform by or at the direction of Customer or as a result of an event, cause, or third party outside of Tulip’s reasonable control, Tulip will restore such data to the Tulip Platform online. In addition, Tulip will follow its Backup and Restore SOP with respect to the backup, storage, archiving and restoration of Customer Data stored in the Tulip Platform.

6.4 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. 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 the collection, use and disclosure by Tulip of personal information and/or personal data of Users. In addition, 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. In the course of processing Customer personal data, Tulip may process Customer Data that contains such personal data to analyze, improve, support and operate the Tulip Products and SaaS Services in connection with providing the Tulip Products and Services to Customer.

7. Term; Termination.

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 an individual Order Form, SOW or this Agreement (a) upon written notice to the other party, if the other party materially breaches this Agreement and such breach is incapable of cure, or with respect to a breach capable of cure, the breaching party does not cure such breach within 30 days of receiving notice of it; or (b) upon written notice to the other party without a cure period if the other party (i) ceases operation without a successor; or (ii) 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 Customer’s request made within 30 days following any termination or expiration of the Agreement, Tulip will provide Customer with a download of available Customer Data from the Tulip Platform. Also upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all Services (including any and all related Tulip Property) and will irretrievably delete (or, at Tulip request, return) any and all versions of the Tulip Players and Tulip OS, 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. Customer acknowledges that, except for internal copies of reports retained by Customer, 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. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Tulip prior to the effective date of termination. 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; if Customer terminates this Agreement pursuant to Section 7.2, Tulip will refund to Customer any fees Customer has pre-paid for the terminated portion of the applicable Subscription Term. Tulip shall have no liability to Customer or any third party for any termination or expiration of this Agreement.

7.4. Other Termination. Tulip shall have the right to terminate this Agreement immediately in the event the Tulip Platform and/or the Services are deemed by Tulip or alleged or determined by an appropriate governmental authority to violate any local, state or federal law, regulation or ordinance.

7.5. Survival. The following Sections will survive any expiration or termination of this Agreement: 5 (Payment of Fees), 6.1 (Rights in Customer Data and Customer Content), 6.2 (Usage Data), 7.3 (Effect of Termination), 7.5 (Survival), 9.6 (Warranty Disclaimer), 9.7 (Additional Warranty Disclaimer for Tulip AI), 10 (Indemnification), 11 (Limitation of Liability), 12 (Confidential Information), 15 (Governing Law; Dispute Resolution), and 16 (General Terms).

8. Publicity.

Customer hereby grants Tulip the right to list Customer’s name and logo (the “Materials”) 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. Customer may request that Tulip discontinue future use of the Materials by emailing Tulip at legal@tulip.co (or such other email address as Tulip directs), provided that Tulip will not be required to remove the Materials from any pre-printed materials or from any medium in which the Materials are already embedded.

9. Warranties.

9.1 Tulip Limited Software Warranty. Tulip warrants, for Customer’s benefit only, that the Tulip Player, the Tulip OS, and the Tulip Platform will include the functionality set forth in the applicable Documentation.

9.2 Tulip Professional Service Warranty. Tulip warrants, for Customer’s benefit only that the Professional Services will be provided in a professional and workmanlike manner. Customer’s sole and exclusive remedy for Tulip’s breach of this warranty will be for Tulip to re-perform the non-conforming portions of the Professional Services. If Tulip is unable to re-perform the non-conforming portions of the Professional Services, Customer will be entitled to recover the fees paid to Tulip attributable to the non-conforming portions of the Professional Services.

9.3 Remedies. Unless otherwise explicitly stated herein, Tulip’s sole liability (and Customer’s sole and exclusive remedy) for a breach of any of Tulip’s warranties set forth in this Section 9 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. Tulip’s warranties set forth in Section 9 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 Player, the Tulip OS, or the Tulip Platform, 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) if the nonconformity was caused by Customer’s failure to install an Update, (iv) to Trial Subscriptions or Beta Versions; or (v) to any noncomformity resulting from Third Party Developer Content.

9.4 Customer Warranties. 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 6.1 (Rights in Customer Data and Customer Content)) and that: (i) to the best of its knowledge, no Customer Data will violate or infringe any third party Intellectual Property Rights or any publicity, privacy or other rights; and (ii) no Customer Data will violate (a) any laws or regulations, (b) any terms of service, privacy policies or other agreements governing the Customer’s accounts with any Third-Party Platforms or (c) 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. In its use of the Tulip Products and Services, 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 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.

9.5 Mutual Warranties. Each party hereby represents and warrants to the other party that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement; (b) the execution, delivery, and performance of this Agreement constitutes a legal, valid, and binding agreement of such party; (c) it will comply with applicable laws in connection with its performance of its obligations and its exercise of its rights under this Agreement; and (d) 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. Each party agrees to fully comply with the provisions of the United States Foreign Corrupt Practices Act and/or the Organization for Economic Cooperation and Development prohibiting foreign bribery and improper payments.

9.6 Warranty Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 9.1, 9.2 AND 9.5, THE SERVICES AND ALL RELATED CONTENT AND DELIVERABLES ARE PROVIDED “AS IS.” TULIP MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, OR ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. TULIP DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICES WILL BE UNINTERRUPTED, SECURE, ERROR-FREE, OR FREE OF HARMFUL COMPONENTS. SUPPLIER FURTHER MAKES NO WARRANTY IN CONNECTION WITH UPLOAD OR DOWNLOAD OF SENSITIVE DATA TYPES. CUSTOMER IS RESPONSIBLE FOR ASSESSING THE SUITABILITY OF THE SERVICES FOR CUSTOMER’S INTENDED USE AND RESULTS, FOR ITS USE OF THE SERVICES, AND FOR ENSURING THAT THE SERVICES MEET CUSTOMER’S REQUIREMENTS TO ENABLE ITS COMPLIANCE WITH APPLICABLE LAWS. No Tulip reseller, agent, or employee is authorized to make any modification, extension, or addition to this warranty. Customer acknowledges that the SaaS Services have not been developed to meet the individual requirements of Customer.

9.7 Additional Warranty Disclaimer for Tulip AI. IN ADDITION TO THE DISCLAIMER IN SECTION 9.6, TULIP DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF TULIP AI OR THE ACCURACY OF ANY OTHER INFORMATION OBTAINED THROUGH TULIP AI. CUSTOMER UNDERSTANDS AND AGREES THAT ANY CONTENT OR OUTPUT OBTAINED THROUGH THE USE OF TULIP AI IS PROVIDED “AS-IS” AND OBTAINED AT CUSTOMER’S SOLE RISK. CUSTOMER SHOULD NOT USE OR RELY ON TULIP AI OUTPUT WITHOUT EVALUATING THE ACCURACY OF ANY OUTPUT AS APPROPRIATE FOR CUSTOMER’S USE CASE, INCLUDING BY USING HUMAN REVIEW OF THE OUTPUT, AS ANY OUTPUT MAY CONTAIN MATERIAL INACCURACIES OR UNVERIFIED INFORMATION DUE TO THE NATURE OF AI OR CHANGES TO THE DATA MODEL AND/OR THE UNDERLYING DATA AFTER AN OUTPUT IS GENERATED. NO INFORMATION, ADVICE, OR OTHER CONTENT, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM TULIP OR THROUGH TULIP AI SHALL CREATE ANY WARRANTY NOT EXPRESSLY SET FORTH HEREIN. TULIP AI IS SUPPLEMENTAL TO THE OTHER SERVICES BEING OFFERED UNDER THIS AGREEMENT, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, TULIP DOES NOT MAKE ANY WARRANTY REGARDING THE AVAILABILITY OR UPTIME OF TULIP AI AND MAY DISCONTINUE OR MODIFY TULIP AI AT ANY TIME IN ITS SOLE DISCRETION.

10. Indemnification.

10.1 By Tulip.

10.1.1 Indemnity. Tulip will defend Customer and its Affiliates and their respective employees, officers, directors and agents (the “Customer Indemnitees”) from and against any claim by a third party brought against Customer contending that the Tulip Player, the Tulip OS, the Tulip Platform, the Tulip SDK, or the Tulip APIs (subject to Section 1.4 above) (“Indemnified Items,” each an “Indemnified Item”) 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 the Customer Indemnitees or agreed in settlement by Tulip (including reasonable attorneys’ fees) resulting from such claim.

10.1.2 Remedy. If Customer’s use of an Indemnified Item 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 applicable Indemnified Item and either: (a) substitute substantially functionally similar software or services; (b) procure for Customer the right to continue using the affected Indemnified Item; 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 Indemnified Item 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 Indemnified Item 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 Indemnified Item in violation of this Agreement or not in accordance with the Documentation; (4) to any action arising as a result of Customer Data, Customer Content, Customer Device Drivers, Beta Versions, Trial Subscriptions, Third Party Platforms, or any third-party deliverables or components contained within the Indemnified Item; (5) if Customer settles or makes any admissions with respect to a claim without Tulip’s prior written consent; (6) 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; or (7) to the extent the alleged infringement is caused by or results in any way from Third Party Developer content.

10.2 By Customer. Customer will defend Tulip and its Affiliates and their respective employees, officers, directors and agents (the “Tulip Indemnitees”) from and against any claim by a third party brought against Tulip arising out of or in connection with (i) Customer’s or any User’s use of the Tulip Products and Services not in accordance with the terms of this Agreement or the Documentation; or (ii) the Customer Data, Customer Content, Customer Device Drivers, Third Party Platforms or any other non-Tulip software, hardware, equipment or materials used by Customer with the Tulip Products and Services, 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 and will indemnify and hold harmless the Tulip Indemnitees from and against any damages and costs finally awarded against the Tulip Indemnitees or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such claim.

10.3 Sole Remedy. SECTIONS 10.1 AND 10.2(ii) SET FORTH TULIP’S AND ITS SUPPLIERS’ AND CUSTOMER’S SOLE LIABILITY AND THE OTHER PARTY’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

10.4 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 relieve 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, using counsel of its own choosing, in the defense and settlement of a claim at the indemnified party’s expense.

11. Limitation of Liability.

11.1. SUBJECT TO SECTION 11.2, NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR: (A) ANY INDIRECT, SPECIAL, MORAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OR INTERRUPTION OF PROFITS, REVENUE, BUSINESS, USE, REPUTATION OR GOODWILL, LOSS OR CORRUPTION OF OR DAMAGE TO DATA, FAILURE OF SECURITY MECHANISMS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (B) AGGREGATE DIRECT DAMAGES EXCEEDING THE AGGREGATE AMOUNT ACTUALLY PAID BY CUSTOMER TO TULIP DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE ACTION THAT GAVE RISE TO THE LIABILITY. THE LIMITATIONS IN THIS SECTION APPLY REGARDLESS OF THE THEORY OF LIABILITY ASSERTED, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE FOREGOING NOTWITHSTANDING, IN NO EVENT WILL TULIP’S TOTAL LIABILITY TO CUSTOMER FOR ANY DAMAGES, LOSSES OR CAUSES OF ACTION, IN THE AGGREGATE, ARISING FROM OR RELATING TO TULIP AI, CUSTOMER’S USE OF TULIP AI, OR THE TULIP AI OUTPUT EXCEED $100.00.

11.2 Nothing in Section 11.1 will limit Customer’s obligation to pay Tulip for the Services pursuant to the Agreement. Further, the limitations in Section 11.1 do not apply to: (a) Customer’s liability arising out of use of the Services beyond the scope of any license granted under this Agreement; (b) any violation by a party of the other party’s intellectual property rights; (c) either Party’s liability for (i) death or bodily injury resulting from such Party’s negligence; (ii) willful misconduct; (iii) fraud; or (iv) loss or damage for which liability cannot be excluded or limited by law; or (d) any loss, damage or inconvenience suffered by a party (directly or as a result of a third party law claim) to the extent that such loss, damage or inconvenience is caused by the failure of such party to comply with its obligations under this Agreement.

11.3 Limitation of Action. To the maximum extent permitted by applicable law, 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. 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.

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 Products and Services, the Tulip Technology, these Terms of Service and any pricing provided in an Order Form, Usage Data and any performance or benchmarking information with respect to the Tulip Products and Services constitute Confidential Information of Tulip, and the Customer Data constitutes Confidential Information of Customer.

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, if legally permissible to do so, 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 be limited to the minimum required to be disclosed and 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. The foregoing notwithstanding, ​​Receiving Party may retain one (1) copy solely for recordkeeping and compliance purposes, subject to the ongoing obligation to maintain the confidentiality of such information in accordance with the terms herein.

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; Feedback.

Except for the rights expressly granted under this Agreement, Tulip and its licensors retain all right, title, and interest in and to the Saas Services, Documentation and Professional Services, including all related Intellectual Property Rights inherent therein. Customer grants Tulip a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into our SaaS Services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or its Users relating to the provision of the SaaS Services. Tulip shall have no obligation to use such feedback, and Customer shall have no obligation to provide such feedback.

14. Hardware.

In the event Customer opts to acquire Hardware from Tulip, the applicable terms set forth in this Section 14 shall apply. Tulip will sell and deliver the Tulip Hardware ordered by Customer through Tulip’s online ordering process or pursuant to an Order Form.

14.1 Shipping. The price of shipping is not included in the advertised price of Tulip Hardware. Unless otherwise specified, Customer is responsible for estimating and covering any duties, Taxes, fees and/or other costs associated with shipment to Customer’s location. Unless otherwise indicated, delivery terms for the Tulip Hardware shall be FCA (Tulip-named place of shipment) as defined in INCOTERMS 2020. Notwithstanding the applicable Incoterm, the following shall apply: (i) title and risk of loss to the Tulip Hardware shall transfer to Customer when Tulip tenders the Tulip Hardware to the freight forwarder at the Tulip-named place of shipment, (ii) Customer is responsible for insuring the Tulip Hardware against risk of loss or damage during shipment commencing upon tender to the freight forwarder, and (iii) Customer shall be responsible for and pay all applicable freight, insurance, fees, duties and charges for the export, import and delivery of the Tulip Hardware upon delivery at the Tulip-named place of shipment. Tulip will select the shipping method, unless the parties have otherwise mutually agreed. Tulip does not ship to PO boxes. More information regarding shipping and delivery is set forth at https://tulip.co/shipping-returns/.

14.2 Limited Hardware Warranty. Tulip’s warranty obligations for all Tulip Hardware sold by Tulip are limited to the terms set forth below. To be eligible for this Limited Hardware Warranty the Tulip Hardware must be purchased through Tulip or through a Tulip authorized reseller with a valid proof of purchase. Customer should access and review the online help resources referred to in the documentation accompanying any Tulip Hardware before requesting warranty service. To make a warranty claim, Customer should contact Tulip at support@tulip.co, and explain in English with specificity the reason(s) for the claim and the details of the original order (including serial number and date of purchased hardware). If Tulip determines that a return is appropriate, Tulip will issue Customer an RMA number, which Customer must include in the package with any returned item, along with a copy of the original order information. Tulip will not accept returned items for which an RMA has not been issued.

Tulip warrants Tulip Hardware against defects in materials and workmanship under normal use for a period of one year from the date of retail purchase by Customer (“Warranty Period”). If a hardware defect arises and a valid claim is received within the Warranty Period, as Customer’s sole and exclusive remedy and Tulip’s only liability, Tulip will either 1) repair the hardware defect at no charge, using new or refurbished replacement parts, or 2) exchange the Tulip Hardware with Tulip Hardware that is new or reconditioned by Tulip or that has been manufactured from new or serviceable used parts and is at least functionally equivalent to the original Tulip Hardware. Tulip may request that Customer replace defective parts with new or refurbished user-installable parts that Tulip provides in fulfillment of its warranty obligation. Replacement Tulip Hardware or parts, including a user-installable part that has been installed in accordance with instructions provided by Tulip, assumes any remaining warranty for the original Tulip Hardware or ninety (90) days from the date of replacement or repair, whichever provides longer coverage for Customer. When Tulip Hardware or parts are exchanged, any replacement item becomes Customer’s property and the replaced item becomes Tulip’s property. Parts provided by Tulip in fulfillment of its warranty obligation must be used in Tulip Hardware for which warranty service is claimed. When a refund is given, the Tulip Hardware for which the refund is provided must be returned to Tulip unless specified otherwise.

14.3 Exclusions from and Limitation to Warranty. This limited hardware warranty applies only to Tulip Hardware manufactured by or for Tulip that can be identified by the “Tulip” trademark, trade name, or logo affixed to them. The limited hardware warranty does not apply to any non-Tulip hardware products or any software, even if packaged or sold with Tulip Hardware. Manufacturers, suppliers, or publishers, other than Tulip, may provide their own warranties to the end user purchaser, but Tulip, in so far as permitted by law and subject to the Limited Hardware Warranty above, provides the Tulip Hardware “as is.” This warranty does not cover any software installed on the Tulip Hardware, and any such software is separately warranted under this Agreement.

Tulip does not warrant that the operation of the Tulip Hardware will be uninterrupted or error-free. Tulip is not responsible for damage arising from failure to follow instructions relating to the Tulip Hardware’s use.

This warranty does not apply: a) to damage caused by accident, abuse, misuse, flood, fire, earthquake, or other external causes; b) to damage caused by operating the Tulip Hardware outside the permitted or intended uses described by Tulip; c) to damage caused by service (including upgrades and expansions) performed by anyone who is not a representative of Tulip; e) to a Tulip Hardware or part that has been modified to alter functionality or capability without the written permission of Tulip; e) to consumable parts, unless damage has occurred due to a defect in materials or workmanship; f) to cosmetic damage, including but not limited to scratches, dents; or g) if any Tulip serial number has been removed or defaced. THIS WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR COUNTRY TO COUNTRY. TULIP’S RESPONSIBILITY FOR HARDWARE DEFECTS IS LIMITED TO REPAIR OR REPLACEMENT SERVICE AS DETERMINED BY TULIP IN ITS SOLE DISCRETION. Tulip may restrict warranty service outside of Europe and the United States.

THE CONTENTS OF CUSTOMER’S HARDWARE PRODUCT WILL BE DELETED AND THE STORAGE MEDIA REFORMATTED IN THE COURSE OF WARRANTY SERVICE. CUSTOMER’S HARDWARE PRODUCT WILL BE RETURNED TO CUSTOMER, CONFIGURED AS ORIGINALLY PURCHASED, TO THE EXTENT THAT ORIGINAL CONFIGURATION IS RECOVERABLE, SUBJECT TO APPLICABLE UPDATES.

14.4 Repair and DIY Service. If Tulip opts to service Customer’s Tulip Hardware, Customer will be responsible for packaging and shipping Customer’s Tulip Hardware to the service location requested. If Customer no longer has the original packaging, Tulip may send Customer packaging material. If Customer is located in the United States or Europe, Tulip will provide pre-paid shipping way bills. Customers who purchase outside the United States or Europe may be required to cover the cost of shipping to a repair service location.

Tulip may send Customer new or refurbished customer-installable replacement Tulip Hardware or parts to enable Customer to service or exchange Customer’s own Tulip Hardware (“DIY Service”). Upon receipt of the replacement Tulip Hardware or part, the original Tulip Hardware or part becomes the property of Tulip and Customer agrees to follow instructions, including, if required, arranging the return of original Tulip Hardware or part to Tulip in a timely manner. When providing DIY Service requiring the return of the original Tulip Hardware or part, Tulip may require a credit card authorization as security for the retail price of the replacement Tulip Hardware or part and applicable shipping costs. If Customer follows Tulip’s instructions, Tulip will cancel the credit card authorization, so Customer will not be charged for the Tulip Hardware or part and shipping costs. If Customer fails to return the replaced Tulip Hardware or part as instructed, Tulip will charge the credit card for the authorized amount.

15. Governing Law; Dispute Resolution

15.1 Arbitration. The parties will attempt in good faith to resolve any dispute arising out of or relating to the SaaS Services or this Agreement by negotiation. Any such dispute not so resolved, except for matters specifically excluded from arbitration hereunder, will be resolved by 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 who is knowledgeable in the commercial aspects of “software as a service” arrangements and intellectual property, 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.

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.

Exclusions to Arbitration: Matters related to the payment of amounts due and/or non-payment are specifically excluded from arbitration hereunder. In addition, the parties agree that a party may seek injunctive or other equitable relief in court to enjoin misuse, misappropriation or ownership of intellectual property, trade secrets or Confidential Information.

15.2 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 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.

15.3 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.

16. General Terms.

16.1. Assignment. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns. Customer may not assign this Agreement, or delegate its obligations 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 Customer shall be deemed an assignment hereunder. Tulip may assign its rights and obligations under this Agreement (in whole or in part) without Customer’s consent.

16.2. 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.

16.3. 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, and such notices will be deemed given when sent.

16.4. 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.

16.5. Entire Agreement; Amendments. To the maximum extent permitted by applicable law, these Terms of Service, together with the documents referenced herein and all Order Forms and SOWs 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. 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 Products or SaaS Services. Any terms or conditions stated in a Customer-provided purchase order or in any other Customer provided business forms or order documentation shall be null and void.

16.6. 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.

16.7. Subcontractors. 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 may use the services of its Affiliates and its and its Affiliates’ third party subcontractors and service providers in providing the Services 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. For clarity, Third Party Developers are not considered subcontractors under this Agreement.

16.8. No Third Party Beneficiaries. There are no third-party beneficiaries under this Agreement.

16.9. 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.

16.10. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any employees or agents of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

16.11. 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.

16.12. Order of Precedence. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form or SOW, (2) this Agreement, and (3) the Documentation.

16.13. 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. 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 and regulations 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.