Master Subscription and License Agreement

Last Update August 29, 2024

Any entity or individual using or logging into the Software Services as part of its offering to Customers or potential Customers (a “Client”) automatically agrees to be bound by this MASTER SUBSCRIPTION AND LICENSE AGREEMENT (this “Agreement”). This Agreement is entered into by and between Tulip, Inc., a Delaware corporation (“Tulip”) and the Client.

There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.

Definitions. Terms defined in this Section 1 and parenthetically defined elsewhere shall have the same meaning throughout the Agreement.

1.1

"Benchmark Data” means statistical, system, usage, and configuration data regarding the Client’s compliance with the Agreement and Client’s usage of the Software Services, including, but not limited to, user engagement statistics, sales and conversion data, or remote application performance measurement, and provided that such data: (i) does not specifically identify Client or Customers (as defined below); and, (ii) does not consist of any of Client’s Confidential Information, provided, however, that Client shall not consider statistical or aggregate data part of its Confidential Information.“

1.2

"Client Content” means any logos, videos, multimedia, reports, information, files, documents, data, or other content that Client, its employees, personnel, agents, or end users, share with Tulip.

1.3

"Confidential Information” means any nonpublic information (written, oral or electronic) disclosed by one party to the other party and shall be deemed to include the following information of the respective parties, without limitation: (i) the terms and conditions of the Agreement; (ii) customer lists, the names of Customer contacts, business plans, technical data, product ideas, personnel, contracts and financial information; (iii) patents, trade secrets, techniques, processes, know-how, business methodologies, schematics, employee suggestions, development tools and processes, computer printouts, computer programs, design drawings and manuals, and improvements; (iv) information about costs, profits, markets and sales; (v) plans for future development and new product concepts; (vi) all documents, books, papers, drawings, models sketches, and other data of any kind and description, including electronic data recorded or retrieved by any means, that have been or will be disclosed, as well as written or oral instructions or comments; and (vii) Client Content.

1.4

"Customers” means Client’s customers.

1.5

"Gross Revenue” means all revenue made from the sale of goods and services before returns but after discounts only at the time of purchase.

1.6

"Order Form” means the order form document that is executed by both parties and is subject to, governed by, and incorporates by reference, this Agreement, and sets forth the Software Services Tulip shall provide to Client.

1.7

"Paywall Services” means the online content delivery, payment, and subscription services that Tulip may provide to Client as part of the Software Services, as further set forth on an Order Form.

1.8

"Record” means a new customer account that is created on the Software Services by Customers, that Client uses in connection with its internal business.

1.9

"Registered User” means when a Customer provides and confirms their mobile phone number and engages with a representative of the brand or an affiliate using the Software Services.

1.10

“SLA” (or Service Level Agreement) means the specific terms governing support and delivery of the Software Services as set forth at https://www.gethumankind.com/sla which is incorporated herein.

1.11

"Software Services" means the software services as set forth on the Order Form, and provided by Tulip, running on one or more computer servers maintained by Tulip or a third party on behalf of Tulip, and made available to Client over the Internet, and as set forth in the SLA.

1.12

"Support Services" means the support and maintenance services provided by Tulip to Client set forth in the SLA or Order Form that describes the support and maintenance services to be provided by Tulip, which may include, but is not limited to, any basic implementation, troubleshooting, and help-desk services.

1.13

"Territory" shall mean the geographic location defined in the Order Form.

1.14

"Third-party Product" means all materials, hardware or software owned by a third party.

Software Services.

2.1

License Grant. Provided that Client pays all the required fees under the Agreement and complies with all other terms of the Agreement, T hereby grants to Client a limited, non-exclusive, terminable, non-transferable, non-sublicensable license to access and use the Software Services pursuant to the Agreement, in and under rights. Client shall notuse or otherwise access the Software Services in a manner that exceeds Client’s authorized use as set forth in the Agreement.

2.2

Restrictions Client shall not use the Software Services beyond the scope of the rights granted in the Agreement, including any usage outside of the site, record limits, or location restrictions as set forth on the Order Form. Client shall be solely liable for its users’ and Customers’ access to the Software Services and any misuse of the Software Services by any of Client’s workforce personnel. Client shall not directly or indirectly alter, modify, adapt, translate, copy, distribute, reverse engineer, decompile, disassemble, or create any derivative works of the Software Services. Client shall not remove, modify, or obscure any copyright, trademark or other proprietary rights notices that are contained in the Software Services.

2.3

Security. Tulip hereby agrees to have in place, a formal written information security program that provides safeguards for the protection of Client’s Confidential Information and Client Data, from loss, theft, and disclosure to unauthorized persons. Tulip agrees to maintain commercially reasonable information security and privacy standards, as applicable to the Software Services, that includes, at a minimum, the following:

2.3.1

Asset Management. Tulip creates and maintains an inventory of computer systems utilized by Tulip to process Client’s Confidential Information.

2.3.2

Human Resources Security. Tulip informs all personnel of Tulip’s security obligations under the Agreement and conducts identity verification and background checks of such personnel prior to such personnel performing any aspect of this Agreement.

2.3.3

Physical and Environmental Security. Tulip, or its subcontractors, maintain servers, databases, cabling, and other hardware and/or software components that process Client’s Confidential Information in a secured area that is protected by a defined security perimeter, with appropriate security barriers and entry controls.

2.3.4

Encryption. Tulip stores all Client’s Confidential Information in encrypted form using a commercially supported encryption solution. Encryption solutions will be deployed with no less than a 128-bit key for symmetric encryption and a 1024 (or larger) bit key for asymmetric encryption.

2.3.5

Access Control. Tulip implements the following access controls on computer systems associated with the Services: (1) user authentication uses unique identifiers (“User ID”) for each individual; (2) complex password policy enforced for each User ID requiring, at minimum, passwords of at least eight characters in length and passwords include at least three of lower case, upper case, numeric, and special characters; (3) user access rights/privileges to information resources containing Client’s Confidential Information are granted on a need-to-know basis consistent with role-based authorization; and (4) user access to Client’s Confidential Information is removed immediately upon user separation or role transfer eliminating valid business need for continued access.

Client’s Obligations.

3.1

Client shall be responsible for performing any obligations or activities as set forth on the Client responsibilities section of the Order Form (the “Client Responsibilities”). Client Responsibilities shall also include, without limitation, obtaining and purchasing all equipment, Internet access services, and Third-party Product(s), modifying its network, and doing all other things necessary in order to use the Software Services. Tulip shall be under no obligation to provide the Software Services unless Client fulfills the Client Responsibilities.

3.2

Client will provide reasonable cooperation with Tulip to assist Tulip in provision of the Software Services. Client shall make reasonable efforts to commercially launch its offerings via the Software Services within thirty (30) days of the date on which Tulip notifies Client that it may launch (such commercial launch shall mean the “Launch Date”). The reasonably anticipated Launch Date shall be as set forth on the Order Form and shall be subject to change upon mutual written agreement of the parties.

3.3

Tulip shall authorize access to and assign unique passwords and usernames to Client’s end users of the Software Services (“Client Accounts”). Client shall be responsible for any activity occurring through Client’s personnel’s Client Accounts, including unauthorized activity.

3.4

Client shall use reasonable efforts to prevent unauthorized access to or use of the Software Services and shall promptly notify Tulip in the event that Client knows or should have known after a reasonable inquiry, of any unauthorized access or use of the Software Services and any loss or theft or unauthorized use of any of the Client Accounts.

3.5

Client shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and industry standards (e.g. PCI-DSS), applicable to Client’s use of the Software Services, and any related Tulip services, including without limitation those related to privacy, electronic communications (e.g. TCPA), and anti-spam legislation.

3.6

Client will not (i) directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how or algorithms relevant to the Software Services or any software, documentation or data related to the Software Services; (ii) modify, translate, or create derivative works based on the Software Services (except to the extent expressly permitted by Tulip or authorized within the Software Services); (iv) use the Software Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) remove any proprietary notices or labels; or (vi) violate Tulip’s intellectual property rights.

Support Services.

4.1

Support Services. Client shall be entitled to receive Support Services, including implementation services, as set forth in the applicable Order Form and SLA. Client shall have the right to contact the Tulip’s support organization in accordance with the procedures specified in the Order Form. Client shall have the right, but shall not be obligated, to renew Support Services pursuant to an Order Form.

4.2

Client Delay and Changes. Tulip shall not be responsible for any delays in the performance of the Support Services or any implementation services caused by Client, or Client’s failure to perform the Client Responsibilities.

4.3

Client Platform Changes. Client Platform Changes (as defined below) may adversely affect the
configuration and operability of the Software Services. Tulip shall have no liability for changes to Client’s ecommerce platform caused by Client that are not conducted or authorized in writing by Tulip (“Client Platform Changes”). Support Services required to restore or maintain operability of the Software Services due to Client Platform Changes are not included in standard Tulip implementation or maintenance services and shall be performed at Tulip’s then-current rates or as set forth in a separate work order.

Payment Terms.

5.1

Fees.

5.1.1

Client shall pay the fees as set forth on the Order Form, including any: (i) recurring fees for licensing of the Software Services (the “Platform Fees”); (ii) fees to receive Support Services (the “Support Services Fees”); (iii) any third party (e.g. network carrier) fees, including any pass through expenses, interchange fees, surcharge fees, and convenience fees, payable by Tulip to the applicable third party (the “Third-party Fees”); and (iv) fees for Registered User leads that result in purchases generated through the Software Services (the “Usage Fees,” and together with the Platform Fees, the Support Services Fees, and the Third-party Fees, collectively, the “Fees”). All payments to Tulip shall be in USD. The pricing and related terms applicable during any Renewal Term will be as set forth in the new Order Form.

5.1.2

Unless set forth on an Order Form, all Fees shall be paid up-front and on a quarterly basis.

5.1.3

Client shall ensure all payments of Fees are made in accordance with the instructions and payment methods provided by Tulip to Client, from time-to-time.

5.1.4

Notwithstanding the foregoing, the parties may agree in writing to renew the Agreement for longer periods at other mutually agreed upon rates. Unless set forth on the applicable Order Form, Client shall commence paying the Subscription and Support Services Fees for the Initial Term or each Renewal Term within ten (10) days after the start of such term.

5.2

Usage Fees Calculation.

5.2.1

General. A Client shall pay a Usage Fee for any purchase of any product or service through the Brands and Websites by any Registered User at any time.

5.2.2

Amount. Usage Fees shall be calculated as a progressive percentage of Gross Revenue per month generated from purchases of Client products and services at the Brands and Websites by Registered Users according to the table set forth in the Order Form (the “Usage Fee Table”).For example, if the Usage Fee Table provides a 1% Usage Fee percentage for purchases for the range of $0 to $50,000 in Gross Revenue and a 0.75% Usage Fee percentage for purchases more than $50,000 in Gross Revenue, Client shall pay a 1% Usage Fee for all purchases made up to $50,000 and a 0.75% Usage Fee for all purchases for more than $50,000 and beyond (e.g. for a monthly Gross Revenue of $154,600, in this example, the Usage Fee would equal $1,284.50 (($50,000 x 1%) + ($104,600 x 0.75%)).

5.2.3

Timing. Unless otherwise set forth in an Order Form, starting at the Launch Date, Usage Fees shall be due and payable by Client in advance of each three (3) calendar month cycle based on an estimate of expected Gross Revenue for the products and services at the Brands and Websites from Registered Users. Tulip, in its sole discretion, shall set estimated expected Gross Revenue prior to each such cycle. In the event that the estimated Usage Fees are higher or lower than the actual Usage Fees for any such cycle, Tulip and Client shall true up the difference either through a credit or a charge on the next invoice.

5.3

Launch Date Delay. In the event that Client does not “go-live” with its offerings on the Software Services within thirty (30) days of the Launch Date, Tulip shall have the right to begin billing Client for Platform Fees in accordance with an applicable Order Form.

5.4

Taxes. Client shall pay all taxes (including without limitation sales, use, property, excise, value added, and gross receipts) levied on the Agreement or its personnel, except taxes based on Tulip’s income. Tulip reserves the right to suspend Client’s access and/or use of the Software Services for any accounts for which any payment of fees is due and unpaid, provided, however, that Tulip provides Client a delinquency notice of such nonpayment and at least thirty (30) days have passed since the transmission of such delinquency notice without full payment of the unpaid fees by Client. Client also shall pay to Tulip all reasonable expenses incurred by Tulip in connection with exercising any of its rights under the Agreement or applicable law with respect to the collection of any payments due Tulip (excluding with respect to amounts reasonably disputed by Client in good faith), including reasonable attorneys’ fees, court costs, and collection agency fees.

Intellectual Property Rights.

6.1

Proprietary Rights. Client acknowledges and agrees that Tulip retains sole and exclusive ownership of all right, title, and interest in and to: (i) any Support Services; and (ii) the Software Services, including any update, modification, improvement, enhancement, or configuration made to the Software Services, regardless of who creates, suggests, and/or contributes in any such modification, improvement, enhancement, or configuration. Nothing in this Agreement shall be construed, whether by implication, estoppel or otherwise, as transferring or as obligating any party to transfer ownership of any intellectual property rights to the other party; and (ii) each party reserves all rights in its own intellectual property rights other than the licenses expressly granted under this Agreement.

6.2

Client Content. Client acknowledges and agrees that in connection with this Agreement, Tulip may process and/or receive Client Content. Client shall own all title and intellectual property rights in and to the Client Content. Notwithstanding the foregoing, when Client, its employees, personnel, agents, or end users, upload, submit, or store Client Content in connection with this Agreement, Client grants Tulip a worldwide license to use, host, store, reproduce, modify, and create derivative works from the Client Content to perform its obligations under this Agreement. Tulip is not responsible for any electronic communications and/or Client Content which are delayed, lost, altered, intercepted, or stored during the transmission of any data by means of third-party networks (other than third parties providing computing or storage services under the Agreement on behalf of Tulip). Without limiting Client’s rights and remedies under the Agreement, Client acknowledges that Client Content and information regarding Client’s account will be processed by Tulip and stored and processed using online hosting services selected by Tulip. Client represents and warrants that it has all necessary rights in, and obtained all necessary consents to, the Client Content to grant Tulip the rights granted under this Section 6.4. Notwithstanding anything to the contrary in the Agreement, Client authorizes and agrees that Tulip may collect Benchmark Data and such Benchmark Data shall be the property of Tulip. Tulip shall have the right to retain, use, distribute, sell, and otherwise exploit such Benchmark Data.

6.3

Feedback. Tulip encourages Client to provide suggestions, proposals, ideas, recommendations or other feedback regarding improvements to Tulip’s services and related resources (“Feedback”). Tulip shall own all rights, title and interest, including all intellectual property rights, in and to any improvements to the Software Services or any new programs, upgrades, modifications or enhancements developed by Tulip in connection with rendering the Software Services to Client, even when refinements and improvements result from Client’s feedback or request. To the extent, if any, that ownership in such refinements and improvements does not automatically vest in Tulip by virtue of the Agreement or otherwise, Client grants to Tulip a royalty-free, fully paid, sub-licensable, transferable, non-exclusive, irrevocable, perpetual, worldwide right and license to make, use, sell, offer for sale, import and otherwise exploit Feedback (including by incorporation of Feedback into the Software Services) without restriction.

Paywall Services. Unless authorized by Tulip in writing, Client may not use or enable any other paywall or payment services on the Software Services. In the event Tulip provides Client with Paywall Services, the following shall apply.

7.1

Client acknowledges and agrees that Client shall be solely responsible for any promotions, discounts, awards, or any other incentives that Client provides to Customers in connection with the Paywall Services.

7.2

Client agrees to use the Paywall Services in accordance with applicable law, and all process, procedures, including but not limited to the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. and its regulations at 47 C.F.R. § 64.1200; the Do-Not-Call Implementation Act, 15 U.S.C. § 6101 et seq.; or any similar anti-spam, data protection, or privacy legislation in any jurisdiction, and rules that may be provided by Tulip from time to time.

7.3

When Customers pay for Client’s services or products using the Paywall Service, the amounts paid (the “Customer Fees”) shall be credited to Client. Once such Customer Fees are received by Tulip, such Customer Fees, will be disbursed to Client’s account within fourteen (14) business days, or as set forth on an applicable Order Form. Client acknowledges and agrees that Tulip shall have no obligation to pay any sums or disburse any amounts to Client, until and unless applicable Customer Fees are paid to Tulip.

7.4

In the event Tulip and Client agree that the Paywall Services shall make use of Client’s merchant account, Client shall be solely responsible for the creation and maintenance of such accounts. Tulip shall not be responsible for any loss connected to the Client’s merchant account. Prior to disbursement of any Customer Fees to Client, Tulip shall have the right to deduct any Third-party Fees applicable to the collection of Customer Fees, including, but not limited to, credit card processing fees, chargebacks, bank fees, and convenience fees.

Tulip Rights.

8.1

Tulip reserves the right to modify any of the services hereunder for any reason, without notice at any time, provided that Tulip will not modify the Software Services in a manner that is unreasonably and materially detrimental to Client. Tulip has no legal obligation to make any services or features available in any jurisdiction, and Client acknowledges and agrees that services and features are available only in accordance with applicable law.

8.2

Tulip shall have no responsibility for the actions or omissions of Customers, and Client shall be solely responsible for its Customers.

8.3

The use of the Software Services and any other products or services offered by Tulip may be subject to additional terms and conditions as may be provided to Client or Customers from time-to-time.

Warranties. Tulip represents, warrants, and covenants that: (a) it has the full corporate right, power and authority to enter into the Agreement; (b) the execution of the Agreement by and the performance of its obligations and duties hereunder do not and will not violate any agreement to which it is a party or by which it is bound; and (c) the Software Services will be provided in substantial compliance with applicable Documentation. In order to be entitled to any remedy based on a purported breach of the foregoing representation and warranty in (c) above, Client must inform Tulip of the purported deficiency in the Software Services within thirty (30) days of the day on which Client becomes aware of the condition giving rise to such claim. Tulip will have no responsibility for the quality, completeness, proper licensure, or workmanship of any item or action furnished by Client. Unless otherwise agreed in writing, Client will be solely responsible for obtaining all necessary rights in Client Furnished Equipment or non-Tulip-provided Third-party Products. Further, Tulip will have no responsibility for the adequacy or performance of: (i) the Client Furnished Equipment, or any software, hardware, or other materials Tulip did not provide under this Agreement, or (ii) any products or services provided by any third party except for any third-party software, hardware, or other materials Tulip directly provides under this Agreement. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 9, TULIP DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE AND ANY WARRANTIES OF ANY KIND WITH RESPECT TO ALL THIRD-PARTY PRODUCTS. THE MANUFACTURERS OR DISTRIBUTORS OF THE THIRD-PARTY PRODUCT(S) MAY PROVIDE WARRANTIES OF THEIR PRODUCTS THAT WILL EXTEND TO CLIENT, BUT IT IS CLIENT’S RESPONSIBILITY TO ACQUIRE AND IMPLEMENT SUCH WARRANTIES. CLIENT ACKNOWLEDGES AND AGREES THAT ALL TULIP SOFTWARE SERVICES AND ALL OTHER RELATED TULIP SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS.

10.

Indemnification.

10.1

Client will indemnify, defend and hold harmless Tulip and its officers, directors, employee and agents, from and against any third-party claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including reasonable legal and professional fees, arising out of or in any way connected with (i) Client’s access to or use of the Software Services otherwise than in accordance with this Agreement, or (ii) the Client Content as delivered to Tulip, provided that Tulip: (a) promptly notifies Client in writing of the claim; (b) grants Client sole control of the defense and settlement of the claim; and (c) provides Client, at Client’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. Notwithstanding anything to the contrary, Tulip may choose, at its sole discretion, to participate in the defense at its cost with counsel of its choosing, and must approve any settlements relating to non-indemnified liabilities or admissions.

10.2

Tulip will indemnify, defend and hold harmless Client and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including reasonable legal and professional fees, to the extent that it is based upon a third-party claim that the Software Services, as provided by under this Agreement and used within the scope of this Agreement, infringe or misappropriate any intellectual property right of another, and will pay all losses and reasonable attorneys’ fees attributable to such claim that are awarded against Client, provided that Client: (i) promptly notifies Tulip in writing of the claim; (ii) grants Tulip sole control of the defense and settlement of the claim; and (iii) provides Tulip, at Tulip’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim. If use of any of the Software Services are, or in Tulip’s reasonable opinion are likely to be, the subject of a claim specified in this Section, then Tulip may, at its sole option and expense: (a) procure for Client the right to continue using the Software Services; (b) replace or modify the Software Services so that it is non-infringing while maintaining substantially equivalent in function to the original Software Services; or (c) if options (a) and (b) above cannot be accomplished despite Tulip’s reasonable efforts, then Tulip or Client may terminate this Agreement and Tulip will provide pro rata refund of unused/unapplied fees paid in advance for any applicable subscription term. THE PROVISIONS OF THIS SECTION 10.2 SET FORTH TULIP’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CLIENT’S SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO INDEMNIFICATION OBLIGATIONS FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

11.

Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR: (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 2.2 OR FROM INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 EACH PARTY’S MAXIMUM AGGREGATE LIABILITY RELATED TO OR IN CONNECTION WITH THE AGREEMENT WHETHER UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WILL NOT EXCEED THE AGGREGATE AMOUNT OF FEES PAID OR PAYABLE BY THE CLIENT TO TULIP UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY.

12.

Confidentiality.

12.1

Non-Disclosure. Each party agrees not to use, disclose, sell, license, publish, reproduce, or otherwise make available the Confidential Information of the other party to any third party, and further agrees not to use the Confidential Information of the other party except and only to the extent necessary to perform their respective obligations under the Agreement. Each party agrees to secure and protect the other party’s Confidential Information in a manner consistent with the maintenance of such party’s own confidential and proprietary rights in the information (and in any event reasonable measures) and to take appropriate action by instruction or agreement with its employees, consultants, affiliates or other agents who are permitted access to the other party’s Confidential Information to satisfy its obligations under this Section 12.1.

12.2

Exclusions. The obligation to treat information as Confidential Information shall not apply to information which: (a) is publicly available through no action of the receiving party; (b) was rightfully in the receiving party’s possession on a non-confidential basis independent of its relationship with the disclosing party prior to the first disclosure by the disclosing party to the receiving party as evidenced by the receiving party’s then-existing written records; (c) has been or is developed by or become known to the receiving party without access to any of the disclosing party’s Confidential Information and outside the scope of any agreement with disclosing party with the receiving party having the burden of proof to demonstrate independent creation.

13.

Term and Termination.

13.1

Term. The initial term of the Agreement shall begin on the Order Form Start Date and remain in effect until the completion of Order Form Term Length as set forth on the Order Form (the “Initial Term”). Thereafter, the term of the Agreement shall automatically renew for twelve (12) month periods, unless otherwise set forth on the Order Form (each, a “Renewal Term”, and collectively with the Initial Term, the “Term”), unless one party provides written notice to the other party at least sixty (60) days in prior to the expiration of the then-current Term that it does not wish to renew the Agreement.

13.2

Termination for Cause. In the event that Client or Tulip breaches any material provision of the Agreement and fails to cure such breach within fifteen (15) days after written notice thereof (which notice reasonably details the alleged breach), the non-breaching party may terminate the Agreement immediately by written notice to the other party. In the event that Client or Tulip (i) becomes insolvent; (ii) files a petition in bankruptcy for Chapter 7 relief, or has such a petition filed against it (and fails to lift any stay imposed thereby within sixty (60) days after such stay becomes effective); (iii) has a receiver appointed with respect to all or substantially all of its assets; (iv) makes an assignment for the benefit of creditors; or, (v) ceases to do business in the ordinary course, the other party may terminate the Agreement immediately by notice in writing. All notices required by this Section 13.2 shall be in accordance with the notice requirements.

13.3

Rights upon Termination. Client acknowledges that in the event of a termination or expiration of this Agreement for any reason (including any under Section 14.2): (i) the rights and licenses granted by Tulip to Client will cease immediately; (ii) Tulip does not retain and shall not be responsible for any damage to or loss of Client Content or other data; (iii) Client shall pay Tulip for all Software Services and any other related services provided to Client up to and including the date of termination; (iv) Client shall not be entitled to any refund of the Fees (or portions thereof) except as set forth herein; and (v) Client shall have the right to retrieve Client Content for a period of thirty (30) days from the effective date of termination.

14.

General.

14.1

Law, Jurisdiction, and Venue. The Agreement shall be governed and construed according to the laws of the State of Delaware. The parties agree that the exclusive jurisdiction or any lawsuit related to or arising under the Agreement shall be in the state and federal courts of Los Angeles County, California provided that the foregoing submission to jurisdiction and venue shall in no way limit the obligation to arbitrate disputes set forth below.

14.2

Arbitration. Except for actions to protect a party’s intellectual property rights and to enforce an arbitrator’s decision hereunder, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules, or such applicable substantially equivalent rules as the AAA may adopt that are then in effect (the “AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA Rules. The arbitration shall be conducted remotely to the extent practicable and otherwise in Los Angeles County, California. The arbitrator shall apply the laws of the State of Delaware to all issues in dispute. The controversy or claim shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim or controversy of any other party. The findings of the arbitrator shall be final and binding on the parties and may be entered in any court of competent jurisdiction for enforcement. Enforcements of any award or judgment shall be governed by the Federal Arbitration Act.

14.3

Assignment. Client may not assign any of its rights or delegate any of its duties under the Agreement without the prior written consent of Tulip. Tulip may assign this Agreement in the context of any merger, acquisition, or sale of all, or substantially all, of its assets without the prior written consent of Client. Any unauthorized assignment or delegation will be null and void.

14.4

Notices. Any notice provided by a party to the other party hereunder shall be in writing. All notices shall be given by delivery to the parties at their physical or email addresses set forth on the Key Agreement unless a party notifies the other party in writing of a change to the contact person and/or the contact person’s contact information. Notwithstanding the foregoing, email notices are only effective twenty-four (24) hours after having been sent and email notices to Tulip must copy legal@gethumankind.com.

14.5

Independent parties. The Agreement is by and between independent parties. Nothing in the Agreement shall be construed or interpreted to give rise to an agency, partnership, franchise, employment, or joint venture.

14.6

Force Majeure. Neither party shall be liable in damages or have the right to terminate the Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to, weather and other Acts of God, government restrictions, acts of terrorism, widespread Internet outage(s), wars, insurrections and/or any other cause beyond the control of the party whose performance is affected.

14.7

Integration and Amendments. The Agreement, comprised of this Master Subscription and License Agreement, any applicable Order Form(s), any attached schedules, and any other expressly incorporated exhibits, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements with respect to such subject matter, whether express or implied, written or oral. The Agreement may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same agreement. The Agreement may not be modified except by written agreement signed by duly authorized representatives of both parties. The Agreement shall not be construed against any party by reason of its preparation of this Agreement. If one or more of the provisions contained in the Agreement are found to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions shall not be affected. In this event, the parties may replace the unenforceable provision with a mutually agreeable enforceable provision that preserves the original intent and position of the parties. Any other provisions that survive by their nature shall survive the expiration or termination of the Agreement for any reason. No term or provision of the Agreement shall be deemed waived, and no breach or default shall be deemed excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. No consent by any party to, or waiver of, a breach or default by the other, whether express or implied, shall constitute a consent to, waiver of, or excuse for any different or subsequent breach or default.

15.

Branding. The parties acknowledge that this Agreement only applies to marketing and co-branding for the brands and websites identified on the Order Form in the Territory (“Brands and Websites”). Client shall have no authorization to use the Software Services or the Tulip Marks defined below on any brand or website outside of the Brands and Websites or outside of the Territory. Promptly after the Effective Date, Client will implement the agreed co-branding of the Brands and Websites. Tulip shall, at its sole discretion, mark Client’s webpage(s) that are hosted or managed by Tulip related to the Brands and Websites, by including the mark “POWERED BY TULIP,” on such page(s). Client grants Tulip a limited, revocable, royalty-free, worldwide, non-sublicensable, non-transferable license to use Client’s trademarks related to the Brands and Websites on any such webpage(s). “POWERED BY TULIP” and any other logo, trademark, tradename, or service name (the “Tulip Marks”) are the sole and exclusive property of Tulip. Tulip grants Client a limited, revocable, royalty-free, non-sublicensable, non-transferable license to use the Tulip Marks as provided herein in the Territory during the Term of this Agreement. All use of the Tulip Marks shall inure to the benefit of Tulip. Client shall apply the Tulip Marks, if any, only to the approved promotional and marketing activities and materials including in publicity, website and other forms of advertising used in connection with such activities and materials, and subject to the terms and conditions of this Agreement, and in accordance with branding guidelines as may be provided by Tulip to Client from time-to-time.