Tuli Technologies, Inc. Partner Agreement
Last Modified: November 9, 2020
The Tuli Technologies, Inc. Partner Agreement (this “Agreement”) is a legal and binding agreement between the Partner identified within the online Partner registration page (“Partner”) and Tuli Technologies, Inc., a Delaware corporation (“Tuli”) with a place of business at 131 Avenida Del Mar, Suite C, San Clemente CA 92672. Tuli and Partner are sometimes referred to jointly as the “Parties” or singularly as a “Party.” This Agreement specifies the terms under which the Partner is authorized to access and use the Tuli Platform including any mobile applications, websites, or software (collectively the “Platform”), and Services (defined below). You, the person who affirmatively accepts the agreement by checking the check box and clicking “I Agree”, and/or logging into the Platform, on the Partners behalf, is executing and consenting to this Agreement, and represents and warrants that he or she is authorized to bind the Partner to the terms of this Agreement. PLEASE BE AWARE THAT THIS AGREEMENT CONTAINS ARBITRATION PROVISIONS. If the Partner does not agree to the terms of this Agreement or cannot comply with all terms in this Agreement, then Partner may not access or use the Platform provided by Tuli Technologies, Inc.
1.1 General Description of Services. Tuli is a software as a service technology company that may offer a Platform and associated Services to Partners that may include providing their customers the ability to participate in traditional online product, or services ordering (each an “Order”) using the Tuli Platform, in addition to participating in an online social community with other users. Tuli Technologies, Inc social community is comprised of individual public users and Merchant (Partner) users and any content (views, comments, recommendations, photos, video, or similar) posted by either of these users is the sole view and perspective of that user and doesn’t necessarily represent the views of Tuli.
1.2 Access. Subject to the terms and conditions of this Agreement, Tuli hereby grants to Partner, upon Partner Agreement acceptance and registration, (i) certain hosted “software as a service” (“Commission Services”) for a certain software application to Partner and their authorized Partner users, shown within their account, and (ii) if applicable, all other implementation services, customization, integration, data import and export, monitoring, technical support, maintenance, training, backup and recovery, and change management (“Professional Services” together with Commission Services, the “Services”) related to Partner’s access to, and use of, such Commission Services and Platform, as further set forth herein. If required, Tuli will supply Partner with a tablet and associated peripherals for receiving incoming orders from the Tuli Platform, if Tuli has no API integration with the Partners’ POS system. Tuli reserves the right to charge the Partner a set-up fee for the tablet and associated peripherals received and for any additional subsequent training related to the Professional Services.
1.3 Access Restrictions. Subject to the terms and conditions of this Agreement, during the timeframe Partner is a Tuli Partner, Tuli shall use commercially reasonable efforts to provide (i) Partner and Authorized Users access to the Platform, and (ii) Partner, the Professional Services. Subject to the terms and conditions of this Agreement, during the Agreement, Tuli hereby grants Partner and any Authorized Users a limited, non-exclusive, non-sublicensable, non-transferable (except as permitted under section 14 below), worldwide, revocable license to access and use Platform, solely for internal business purposes as set forth herein. Under no circumstances does the license granted in this section confer any future rights or license to the Partner for accessing the Tuli Platform beyond the current Agreement, or any ownership interest in the Platform or Services
1.5 Changes to Platform. Tuli may, in its sole discretion, make any changes to Platform that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of Tuli’s products or services to its Partners, (b) the competitive strength of, or market for, Tuli’s products or services, (c) such Platform’s cost efficiency or performance, or (ii) to comply with applicable law.
1.6 Claim Your Business. The Tuli Platform is preloaded with business information like business address and other location specific information. If a potential Partner’s business information is found on the Platform, Tuli allows potential Partners to “claim” their business by reviewing the applicable business information, editing it for accuracy, and then completing the registration process to join and access the Tuli Platform. No individual or entity can claim a Business on the Tuli Platform for which they have no ownership or authorization.
1.7 Partner Support. Partners may contact their account manager for assistance, or email when an issue or question arises. For self-help FAQs, articles, and chat support (Tuli strives to respond within a few hours and no more than 24 hours), Partners can access https://help.tuli.com. Tuli reserves the right to change the customer support URL, as well as changing the email address for support.
2. PLATFORM ACCESS AND AUTHORIZED USER
2.1 Account Information. During the configuration and set-up process for the Platform, Partner will identify an administrative username and password for creating and logging into the Partner business account. Tuli reserves the right to refuse registration of, or cancel usernames and passwords it deems inappropriate.
2.2 Authorized Users. Partner may allow such number of Partner’s employees and/or independent contractors to use the applicable Platform on behalf of Partner as “Authorized Users.” Authorized User means a designated Authorized User who is an individual Partner representative and cannot be shared or used by more than one Authorized User, but may be reassigned to new Authorized Users replacing former Authorized Users who no longer require ongoing use of the applicable Platform. If reassignment is used, the password should be updated accordingly.
2.3 Authorized User, Conditions to Use. As a condition to access and use Platform, (i) each Authorized User shall agree to abide by the terms of Tuli’s Terms of Service which it may adopt from time to time, (ii) Authorized Users shall agree to abide by the terms of this Agreement, or a subset hereof, and, Partner shall ensure such compliance. Partner shall immediately notify Tuli of any violation of the terms of any of the foregoing by any Authorized User upon becoming aware of such violation, and shall be liable for any breach of the foregoing agreements by any Authorized User.
2.4 Account Responsibility. Partner will be responsible for (i) all uses of any account that Partner has access to including any Authorized User accounts, whether or not Partner has authorized the particular use or user, and regardless of Partner’s knowledge of such use, (ii) the activities of all Authorized Users using the Platform and Service; and (iii) securing its Tuli account, passwords (including but not limited to administrative and user passwords) and files. Tuli is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords or access of Partners account by a third party.
2.5 Account Holds. From time to time, Tuli may place a hold (“Hold”) on a Partner’s account including the withholding of any proceeds owed to Partner. Some of the reasons that we may place a Hold on a Partner’s Account include but are not limited to the following: (1) if we have reason to believe that your actions have violated this Agreement, may harm our business, are deceptive, misleading, unlawful, or have harmed a third party or interfere with a third party contractual right; (2) at the request of another user of the Services or if you have an ongoing dispute with any User or Tuli; (3) if your Account has remained inactive for some period of time; or (4) if required in order to comply with a court order, subpoena, writ, injunction, or as otherwise required under applicable US federal, state, or local laws. If you have questions about a Hold we have placed on your account, or need information about how to resolve the Hold, please contact us. Additionally, we may suspend a Partner’s access to the Services while a Hold is in place.
2.6 Right to Audit. Where requested by Tuli, Partner shall cooperate with any reasonable requests to audit financial books and records of Partner in relation to Partner’s use of the Services and Platform.
3. ADDITIONAL RESTRICTIONS AND RESPONSIBILITIES
3.3 Cooperation. Partner shall provide all cooperation and assistance as Tuli may reasonably request to enable Tuli to exercise its rights and perform its obligations under, and in connection with, this Agreement, including providing Tuli with such access to Partner’s premises and its information technology infrastructure as is necessary for Tuli to perform the Services in accordance with this Agreement.
3.4 Training and Education. Partner shall use commercially reasonable efforts to train and educate its Authorized Users, at all times, in the proper use and operation of Platform, and to ensure that Platform is used in accordance with applicable manuals, instructions, specifications and documentation provided by Tuli from time to time.
3.5 Partner Systems. Partner shall be responsible for obtaining, configuring, and maintaining—both the functionality and security of—any equipment and ancillary services needed to connect to, access or otherwise use the Platform, including modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively “Partner Systems”). Tuli shall not be required to provide any Partner Systems, except where expressly agreed upon, for Partner and failure to properly obtain, maintain, or configure such Partner Systems may result in the inaccessibility of the Platform and the associated Services. Tuli shall have no liability to Partner for Partner’s failure to obtain, configure, or maintain any Partner Systems required for Partner to access the Platform or Services.
3.6 Restrictions on Export. Partner may not remove or export from the United States or allow the export or re-export of the Platform or anything related to Platform, Platform or Services, or any direct product thereof in violation of any restrictions, laws or regulations of any United States or foreign agency or authority.
3.7 Additional Representations, Warranties, and Covenants of Partner. In addition to the representations and warranties set forth in this Agreement; (ii) it shall periodically update the prices on the Platform; (iii) it shall timely and properly process all Orders, in the same manner that it would process other orders for customers not using the Platform; (iv) it shall not offer alcohol for purchase through the Tuli Platform or Tuli downloadable mobile device software, and if it attempts to do so, Tuli may, in its sole discretion, terminate this Agreement; (v) the Partner Content and the Partner Marks and Tuli’s exercise of any license granted hereunder, do not and will not, infringe the rights of any third party, including, without limitation, any intellectual property rights, rights of publicity, rights of personality, rights of privacy, rights to payment of royalties, moral rights, rights of attribution, or any other rights of third parties not specifically identified in this Agreement; (vi) Partner has acquired all third-party clearances, permissions, and licenses which are necessary in connection with Tuli’s use of the Partner Content and the Partner Marks and/or Tuli’s exercise of any license granted hereunder, and Tuli shall not be obligated to pay any fees in connection therewith; and (vii) Partner shall not accept Orders in excess of four thousand dollars ($4,000). For orders over four thousand dollars ($4,000) please email and enter “Bulk Custom Order” in the subject line and Tuli’s support team will respond as soon as possible for approval.
3.8 Contractual Relationship and Disputes with Users. Where Partner has a dispute with any other party (excluding Tuli) while using the Services, Partner agrees to solely resolve such dispute with such other party. Tuli is not a party to and not liable for resolving any such disputes. At its discretion, Tuli may assist Partner in resolving such dispute, but Tuli has no obligation to assist with any such disputes. Where Tuli assists in any disputes Partner agrees to reasonably cooperate with any informational requests related to such a dispute. Where a dispute has occurred or where Tuli suspects that a dispute may occur, Tuli may suspend the Services and place a Hold on any proceeds held within Partner’s Account with no liability to Tuli.
3.9 Refunds to Users. In the event a user requests a refund, it’s the sole responsibility of Partner to communicate such request directly to the Tuli support team. Once Tuli receives this request, as the merchant of record, our support team will research the issue and ultimately approve or deny the request, with appropriate actions taken to remedy the issue. Partner is solely responsible for handling order inaccuracies or basic customer service, including but not limited to, user credits or product replacements.
4.1 Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has been, and may be, exposed to or acquired business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information”). Confidential Information of Tuli includes non-public information regarding features, functionality and performance of Platform and Software. Confidential Information of Partner includes non-public data provided by Partner to Tuli to enable the provision of access to, and use of, the Platform and Services as well as all content, data and information recorded and stored by Platform for Partner (“Partner Data”). The terms and conditions of this Agreement, including all non-public pricing and related metrics, are Tuli’s Confidential Information.
4.2 Exceptions. Notwithstanding anything to the contrary contained herein, Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.
4.3 Non-use and Non-disclosure. With respect to Confidential Information of the Disclosing Party, the Receiving Party agrees to: (i) use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure, of such Confidential Information it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care, (ii) hold all such Confidential Information in strict confidence and not use, sell, copy, transfer reproduce, or divulge such Confidential Information to any third party, (iii) not use such Confidential Information for any purposes whatsoever other than the performance of, or as otherwise authorized by, this Agreement.
4.4 Compelled Disclosure. Notwithstanding Section 4.3, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent necessary to comply with a court order or applicable law; provided, however that the Receiving Party delivers reasonable advance notice of such disclosure to the Disclosing Party and uses reasonable efforts to secure confidential treatment of such Confidential Information, in whole or in part.
4.5 Remedies for Breach of Obligation of Confidentiality. The Receiving Party acknowledges that breach of its obligation of confidentiality may cause irreparable harm to the Disclosing Party for which the Disclosing Party may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any violation, or threatened violation, by the Receiving Party of its obligations under this Section, the Disclosing Party shall be entitled to seek injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of posting bond or proving actual damages.
5. PROPRIETARY RIGHTS
5.1 Ownership. Tuli shall own and retain all right, title and interest in and to (i) Platform, Software and the Services and all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed in connection with the Services, and (iii) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, “Services IP”). To the extent Partner acquires any right, title or interest in any Services IP, Partner hereby assigns all of its right, title and interest in such Services IP to Tuli. The trademarks, service marks, and logos of Tuli (“Tuli Trademarks”) used and displayed on the Platform and Services are registered and unregistered trademarks or service marks of Tuli Technologies, Inc., or its licensors. Tuli shall own all right, title and interest in and to any consumer information or data that is entered into and used by the Tuli Platform and Services for any and all Tuli business purposes. Partner provides authorization to Tuli Technologies Inc. to store and use Partner Data for any and all Tuli business purposes.
5.2 Partner Data. Partner hereby grants to Tuli an irrevocable, non-exclusive, perpetual, transferable, sublicensable, worldwide and royalty-free license to use and otherwise exploit (i) Partner Data to provide the Platform and Services to Partner hereunder and as necessary or useful to monitor and improve Platform, Software and the Services, both during the Partner Agreement and after the Partner Agreement terminates, for any lawful purpose. For the avoidance of doubt, Tuli may use, reproduce, create derivative works and disclose Platform-, Software- and Services-related information, data and material that is anonymized, de-identified, or otherwise rendered not reasonably associated or linked to Partner or any other identifiable individual person or entity for product improvement and other lawful purposes, all of which information, data and material will be owned by Tuli. Partner acknowledges that it will not have access to Partner Data through Tuli or its Platform following the expiration or termination of this Agreement.
5.3 No Other Rights. Absolutely no future rights or licenses are granted, pertaining to the Tuli Platform and Services, beyond expiration of the Partner Agreement, for any reason or purpose. No rights or licenses are granted except as expressly set forth herein.
5.4 Partner Content. Although we encourage you to email us if you have customer support questions or issues, we do not want, nor should you, email us any content that contains confidential information. We are free to use anything contained in your communications or content submitted to the Platform for any purpose, whatsoever, including but not limited to, the creation, production, and marketing of products and services that incorporate such information. Your rights to any content are subject to the “User Content” provisions stated within the Tuli Terms of Service. Partner is solely responsible for ensuring that any User Content submitted by Partner is at all times accurate, complete, and up to date on the Platform including, without limitation, Partner’s menu, product details, product(s) inventory listing, hours, address, pricing, promotions and other business details. Tuli is not responsible for any Partner User Content that is inaccurate or incomplete.
6. FEES & PAYMENT
6.1 Commission Fees. Fees for the access and use of the Tuli Platform and Services are on a commission basis. Information regarding all Fees (defined below) may be found within the Tuli Platform or Partner’s account information page. For each Order that Tuli assists Partner in scheduling, Partner will pay Tuli the then-applicable fees, which may include but are not limited to handling, processing, or commission fees, described in Tuli’s pricing policy, which may be displayed during the registration process or on the Tuli website at https://www.sell.tuli.com/get-started , in accordance with the terms set forth therein (“Fees”).
6.2 Intentionally Omitted.
6.3 Reimbursable Expenses. In addition to the Fees, if applicable, Partner shall reimburse Tuli for reasonable out-of-pocket expenses incurred by Tuli on behalf of Partner, in connection with performing the Professional Services.
6.4 Partner Commission Payments to Tuli. Tuli uses a third-party payment processor, Stripe, to complete payments for Partners. Partner Commission Fees will be automatically deducted through Stripe, based on Partner customer orders, and deposited into the Tuli Stripe Account, with the remaining funds from customer order payments deposited directly into the Partner merchant account (all deposit transactions processed by Stripe). See 6.9 for further details on payments to Partners. Tuli may charge and remit to itself the Fees owed by Partner during the Order process, after the Order process is complete or may invoice Partner for any Fees owed. Where Tuli invoices Partner for any Fees, full payment for invoices issued in any given month must be received by Tuli thirty (30) days after the mailing/emailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. In addition to any other remedies available, Tuli may suspend Partner’s access to the Platform or its Services in the event of payment delinquency.
6.5 Payment Disputes. If Partner believes Tuli has billed Partner incorrectly, or there is an issue with any automated funds transaction directly deposited into the Stripe Partner Merchant Account, Partner must contact Tuli no later than thirty (30) days after the closing date on the first billing statement in which the believed error or problem appeared or no later than thirty (30) days after the Stripe deposit date in which the perceived issue occurred, in order to receive an adjustment or credit. Inquiries should be directed to Tuli’s Partner support department at or the applicable Tuli account manager. Once Tuli receives this request, our support team will research the issue and ultimately approve or deny the request, with appropriate actions taken to remedy the issue. Where a payment dispute is active, Partner agrees that Tuli may temporarily suspend Partner’s access to the Platform and Services.
6.6 Taxes. Tuli Technologies Inc. is the merchant of record and therefore responsible for collecting and remitting all applicable taxes for items purchased on the Tuli Platform. Consumers are liable and responsible for paying the actual tax on each item, at time of purchase.
6.7 No Deductions or Setoffs. All amounts payable to Tuli hereunder shall be paid by Partner to Tuli in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason except as may be required by applicable law.
6.8 Subpoena Expenses. If Tuli has to provide information in response to a subpoena related to the Partner's account, then Tuli may charge Partner for Tuli’s costs. Such charges may include fees for attorney and employee time spent retrieving records, preparing documents and participating in depositions or other legal processes as well as other costs incurred in complying with such legal processes.
6.9 Payments for Orders Collected By Tuli. Where Partner wishes to use the Services to charge a User for an Order, you authorize and direct us to initiate a transaction on your behalf and allow us, as required, to initiate, process, receive, and settle any proceeds related to any charges initiated. Please be aware in order to collect payment, you may be required to create an account with our third-party payment processor and you must abide by all rules set forth by such third-party payment processor. Any proceeds from any Orders collected shall be reflected in the balance of your account upon confirmation by us. Tuli shall have the right but not obligation to monitor and review all charges for Orders issued by Partner. Tuli may cancel, suspend, reverse, or delay any charges for Orders or take any actions it deems necessary regarding at its sole discretion and without liability to Tuli. Please be aware there may be a reasonable delay in updating any account balances upon confirmation of a User completing an Order transaction. We may deduct any Fees, associated with processing an Order on your behalf, and such deduction shall be reflected accordingly in your account balance. Subject to the terms of this Agreement, we reserve the right to change our Fees at any time upon notice to you directly or by displaying the new Fees on the Tuli website or within the Tuli Admin Portal.
7. TERM AND TERMINATION
7.1 Term. This Agreement shall remain in effect until its termination as provided below (the “Term”). The Term’s effective date shall be determined by the date of online registration by Partner and execution of this Agreement and continue pursuant to this Agreement. Execution of this agreement will be accomplished during the onboarding process, with Partner having access to review this agreement and confirm acknowledgement and agreement with its terms, by checking the applicable box. Each registered Partner shall continue to be a Tuli Partner unless notified otherwise. If Partner doesn’t agree with the terms of this Agreement then Partner should not check the box, nor access and use the Tuli Platform and Services.
7.2 Termination. Tuli may terminate this Agreement without written notice to Partner if Partner fails to pay any Commission Fees owed, is more than 60 days past due, or violates any Tuli misconduct guidelines (please review Tuli Terms of Service). Termination of the Agreement, in this instance, includes denying Partner and all of its Authorized Users access to the Platform and Services. In addition to any other remedies it may have, either party may also terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days or as agreed upon by both Parties after receipt of written notice of such breach from the non-breaching party.
7.3 Effect of Termination. Upon termination of the Agreement, Partner shall immediately cease all use of, and all access to, the Platform and Services and Tuli shall immediately cease providing the Platform and Professional Services. At the time of termination of this Agreement, if the Partner still owes commission fees to Tuli, those fees become immediately due and payable.
7.4 Survival. For the purposes of this Agreement, all portions of this Agreement that one would reasonably believe to survive termination shall survive termination of this Agreement including but not limited to Sections [3.1, 4–7, and 8–17] All other rights and obligations shall be of no further force or effect.
8. WARRANTY AND DISCLAIMER
8.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TULI DOES NOT WARRANT THAT ACCESS TO THE PLATFORM, SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES TULI MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. FURTHER, TULI MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SERVICES PROVIDED BY THIRD PARTY TECHNOLOGY SERVICE PROVIDERS RELATING TO OR SUPPORTING THE PLATFORM, INCLUDING HOSTING AND MAINTENANCE SERVICES, AND ANY CLAIM OF PARTNER ARISING FROM OR RELATING TO SUCH SERVICES SHALL, AS BETWEEN TULI AND SUCH SERVICE PROVIDER, BE SOLELY AGAINST SUCH SERVICE PROVIDER. THE PLATFORM, SOFTWARE AND SERVICES ARE PROVIDED “AS IS,” AND TULI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8.3 Not A Party. Tuli is not a party to any contract or agreements created between a Partner and any Users and Partner is solely responsible for such contractual relationship. Partner agrees that it is solely responsible for providing any services, or products to any Users, and verifying all elements of any of an Order initiated with a User, including any errors or omissions. Partner is solely responsible for any losses that it may incur due to an inaccuracy, error, or fraud that may be incurred through the use of the Services or its relationship with any User, or its failure to verify any Order or transaction using the Platform.
8.4 No Recommendations. Neither Tuli nor any other third party makes any representations or guarantees regarding Partners or User utilizing the Service. Use of our Service in no way represents any endorsement by Tuli, of a Partner’s or User’s existence, legitimacy, ability, policies, practices, or ability to pay. Tuli does not have control of, or liability for, goods or services that are paid for with the Service. Tuli is not a party to any contract or agreements created between a Partner and any Users and Partner is solely responsible for such contractual relationship.
You will indemnify, defend and hold us and our processors, partners, and vendors harmless (and our and their respective employees, directors, agents, affiliates and representatives) from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys' fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a third party person or entity that arises out of or relates to: (a) any actual or alleged breach of this Agreement or any associated Tuli policies, including without limitation any violation of our policies or any terms of our third-party partners; (b) your wrongful or improper use of the Service or Platform; (c) any Order submitted by User through the Service ); (d) any liability we incur that results from your use of the Platform or services, (e) your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (f) your violation of applicable US federal, state or Local Laws; and (g) any Authorized User or other party's access and/or use of the Service with your unique username, password or other appropriate security code. Tuli reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you.
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL (I) EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED IN THE AGGREGATE THE TOTAL FEES PAID OR OWED BY PARTNER HEREUNDER DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT), AND (II) EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11. GOVERNING LAW AND DISPUTE RESOLUTION
11.1 Informal Negotiations. If a dispute of any kind arises, we want to understand and address your concerns quickly and to your satisfaction. Please contact Tuli support at with any dispute. If we cannot resolve your concerns, we agree to an informal dispute resolution process requiring an attempt to negotiate any dispute (except those “Disputes,” as defined below and expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding.
11.2 Binding Arbitration. Notwithstanding any other provision in this Agreement, and except as otherwise set forth in this section, you and Tuli agree to arbitrate all “Disputes,” defined as any claim, controversy or dispute (whether involving contract, tort, equitable, statutory or any other legal theory) between you and Tuli, including but not limited to any claims relating in any way to this Agreement (including its breach, termination and interpretation), any other aspect of our relationship, Tuli advertising, and any use of Tuli platform or Services. “Disputes” also include any claims that arose before this Agreement and that may arise after termination of this Agreement. Notwithstanding the foregoing, you or Tuli may choose to pursue a claim in court and not by arbitration if you fail to timely pay amounts due. Tuli may assign your account for collection, and the collection agency may pursue in any court of competent jurisdiction any claim that is strictly limited to the collection of past due amounts and any interest or cost of collection permitted by law or this Agreement. All Disputes are subject to California law.
ANY ARBITRATION UNDER THIS AGREEMENT WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED, AND YOU ARE WAIVING YOUR RIGHTS TO HAVE YOUR CASE DECIDED BY A JURY AND TO PARTICIPATE IN A CLASS ACTION AGAINST TULI. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration). All Disputes shall be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (www.adr.org) (“AAA”) according to this provision and the applicable arbitration rules. To initiate an arbitration proceeding, an arbitration claim must be submitted by the claimant (the “Claimant”) to the AAA, and a written Demand for Arbitration must be provided to the other party (the “Opposing Party”), pursuant to the AAA Rules. A form for initiating arbitration proceedings is available on the AAA's website at www.adr.org. The Federal Arbitration Act, 9 U.S.C. §§ 1-16 (“FAA”), fully applies. Arbitration hearings will be held in San Clemente, California or any other location that is mutually agreed upon by you and Tuli. You or Tuli may elect to have the arbitration conducted by telephone, video conference, or based solely on written submissions, which election shall be binding on you and Tuli subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone or video conference by you or by Tuli, unless the arbitrator requires otherwise.
A single arbitrator will be mutually selected by Tuli and you, and shall be (i) a practicing attorney licensed to practice law in California or a retired judge; and (ii) selected from the arbitrators on the AAA’s roster of commercial dispute arbitrators who have a background in payroll, health insurance, human resources, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the AAA’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If you and Tuli cannot mutually agree upon an arbitrator within ten (10) days of the Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the AAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. The prevailing party shall be entitled to an award of the costs and expenses of the arbitration, including reasonable attorneys’ fees and expert witness fees. The award rendered by the arbitrator shall be final and binding upon you and Tuli. A judgment on the award may be entered and enforced in any court of competent jurisdiction. Tuli may, in its sole discretion, commence an action in any state or federal court of competent jurisdiction within the County of Orange, California, for any monetary amounts that you owe to Tuli (each, an “Action”). You hereby waive any objection to jurisdiction or venue, or any defense claiming lack of jurisdiction or improper venue, in any Action brought by Tuli in such courts.
You and Tuli agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the FAA shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement. YOU FURTHER ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT YOU AND TULI ARE EACH WAIVING THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY AS TO DISPUTES HEREUNDER AND THAT YOU ARE WAIVING YOUR RIGHT TO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ARISING FROM THIS AGREEMENT.
The arbitration provisions shall not apply to (i) any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) any claim seeking emergency injunctive relief based on exigent circumstances (including but not limited to imminent danger or commission of a crime, hacking, or cyber-attack).
12. SECURITY AND AVAILABILITY
Tuli is dedicated to Platform security and uses service providers that employ a trusted industry standard for reliability, scalability, monitoring, management & compliance. Tuli shall generally make the Platform and Services available but does not make a commitment to any applicable service level. Tuli reserves the right to host and/or maintain the Platform using another third-party technology service provider with no notice to Partner and Partner acknowledges Tuli cannot offer any additional or modified procedures other than those put in place by such technology provider with respect to such technology service.
13. PUBLICITY AND LOCATION
13.1 Publicity. For the duration of the Partner / Tuli Agreement, Tuli shall have the right, but not the obligation, to publicly announce in any and all media, including on the Platform and through social media, that Partner is a client of Tuli and a user of the Platform. In addition, Partner agrees that Tuli may use the Partner's logo and trademark in Tuli’s promotional materials. Also, as part of Tuli’s standard Public Relations processes, Tuli reserves the right to issue press releases to communicate Partner Agreements, as well as any Partner public information, without approval of the Partner. Notwithstanding anything herein to the contrary, Partner acknowledges that Tuli may disclose the existence and terms and conditions of this Agreement to its advisors, actual and potential sources of financing and to third parties for purposes of due diligence.
13.2 Location. As part of Tuli’s online ordering system, Tuli uses Google Maps and the Google Maps API. By using Tuli’s web, iOS, or Android ordering systems you are also bound to the Google Maps API Terms of Service.
This Agreement is not assignable, transferable, or sub-licensable by Partner, except with Tuli’s prior written consent, except to a successor to all or substantially all of Partner’s assets or business (for which no consent of Tuli is required), and provided that, in the case of Partner’s assignment to such a successor of Partner’s assets, the assignee shall (i) assume all obligations of Partner hereunder (including equipment leases) and become a party to this Agreement, and (ii) provide Tuli with all necessary onboarding information including location and payment data, new Partner owner information and any and all additional information required for continuing to access and use the Tuli Platform and Services. Tuli may sublicense any or all of its obligations hereunder. For the avoidance of doubt, a third-party technology provider that provides features or functionality in connection with the Platform and Services shall not be deemed a sublicensee under this Agreement. Tuli will not be liable or responsible for any delays in service, for failing to provide its services or to operate the platform or provide the Platform or Services as a result of any event beyond its reasonable control, including, without limitation, adverse weather conditions, internet outage or interruption of service, power or telecommunications outage, fire, flood, civil disobedience, labor disruptions, strikes, lockouts, freight embargoes, terrorism, natural disaster, war or acts of God.
All notices, consents, and other communications between the Parties under or regarding this Agreement must be in writing (which includes email and facsimile). All notices, consents and other communications between the Parties will be sent to the recipient’s address specified thereon. All communications will be deemed to have been received on the date actually received. Either party may change its address for notices by giving written notice of the new address to the other party in accordance with this Section.
16. GENERAL PROVISIONS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement, entered into hereunder along with the Tuli Terms of Service and all exhibits, annexes and addenda hereto and thereto is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. Where this Agreement and the Tuli Terms of Service conflict this Agreement shall control and supersede. All waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. No agency, joint venture, or employment is created as a result of this Agreement. The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words “hereof,” “hereby,” “herein,” “hereto,” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular Section or paragraph of this Agreement; (ii) the words “include,” “includes” or “including” are deemed to be followed by the words “without limitation;” (iii) references to a “Section” or “Exhibit” are references to a section of, or exhibit to this Agreement; and (iv) derivative forms of defined terms will have correlative meanings.