These terms and conditions are an agreement between Tidelift, Inc. (“Tidelift”), a Delaware corporation, and the Customer identified in the applicable Order Form.
Tidelift wants to provide the Customer with access to Tidelift’s services, and information and technical expertise provided by Tidelift’s contractors (the “Services”, as further defined below). Customer wishes to purchase such Services.
Customer and Tidelift therefore agree as follows:
During the Subscription Term, Tidelift shall provide the Services to Customer in accordance with this Agreement, the Service Description, and any limitations set forth in the Order Form.
The Services may include optional technical support features, such as helpdesk services or service level commitments. If Customer purchases such additional services, as indicated in the Order Form, Tidelift will provide Customer with such services as described in the applicable portion of the Service Description.
Customer shall pay the amount set forth in the applicable Order Form. Unless otherwise stated in the Order Form, fees will be payable upon receipt of the applicable invoice. Tidelift may change subscription fees upon no less than 30 days prior written notice, subject to any longer fee commitments expressly set forth in the applicable Order Form. Subscription fees set forth in the Order Form exclude sales, excise, use, or similar taxes.
Tidelift may, at any time, update the Services. In the event that Tidelift discontinues any feature of the Services in a manner that substantially reduces the functionality of the Services, (a) Tidelift shall provide Customer with no less than 30 days prior notice of such changes; and (b) at Customer’s request given no later than the effective date of the change, shall discuss in good faith a pro rata credit for any fees pre-paid by Customer for the remainder of the current Subscription Term.
The Services will consist in part of identifying resources to maintain, normalize, analyze and update generally available open source and other third-party software. Any such software is licensed and generally made available by its copyright owners or licensees and not by Tidelift under this Agreement. This Agreement will not be construed to license or assign the intellectual property of either party. Tidelift makes no warranties, express or implied, with respect to such software.
Tidelift may update these terms and conditions upon no less than 30 days prior written notice to Customer; provided however, that any update will not apply until the end of Customer’s current Subscription Term.
“Confidential Information” means any information disclosed by either party to the other party that is designated as “Confidential,” “Proprietary” or some similar designation. The terms and conditions of this Agreement will be deemed the Confidential Information of each party. Confidential Information will not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party's files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party's obligations of confidentiality; (v) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information, as shown by documents and other competent evidence in the receiving party's possession; or (vi) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure.
Each party shall not disclose any Confidential Information of the other party for any purpose except to perform its obligations under this Agreement. Each party agrees not to disclose any Confidential Information of the other party to third parties or to such party's employees, except to those employees of the receiving party who are required to have the information in order to perform such party’s obligations under this Agreement. Each party shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees who have access to Confidential Information of the other party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees. Each party shall reproduce the other party's proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
Customer may, but is not obligated to, provide comments, suggestions, feedback, or ideas about the Services (“Feedback”). All such Feedback will be deemed non-confidential unless the parties agree in writing in advance otherwise Tidelift will be free to use, or otherwise exploit, the Feedback.
This Agreement is effective from the Effective Date, and will remain effective until all applicable Order Forms expire, or until otherwise terminated in accordance with its terms. Either party may terminate this Agreement for any reason by providing the other party no less than 30 days prior notice of intent to do so; subject to any longer Subscription Term agreed upon in the Order Form. If either party materially defaults in the performance of any of its obligations hereunder and if any such default is not corrected within 30 days after notice in writing from the other party identifying such breach, then the other defaulting party, at its option, may, in addition to any other remedies it may have, thereupon terminate this Agreement by giving written notice of termination to the defaulting party. Upon termination or expiration of this Agreement for any reason, Sections 1.5 (Software Licenses), 2 (Confidentiality), 4 (Warranties and Disclaimers), 5 (Limitation of Liability), 6 (Miscellaneous) and 7 (Definitions) will survive such termination or expiration.
Tidelift warrants that the Services will be provided in a good and workmanlike manner, in accordance with any written specifications published or agreed to in writing by Tidelift, and that Tidelift will use reasonable efforts, in accordance with its policies and processes generally applicable to the Service, to cause information included in the Services to the accurate. However, Tidelift does not warrant that information provided in the Services, or from Tidelift’s contractors, is accurate or complete. Tidelift’s sole obligation for breach of the foregoing warranty is to, at Tidelift’s option, refund the fees for the applicable Service. Without limiting the foregoing, the Services may include allocation of funds to maintain security of third-party software, but Tidelift does not warrant the security of any such software. OTHER THAN AS SET FORTH IN THE PRIOR SENTENCE, THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NEITHER PARTY WILL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR OTHER INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND EITHER PARTY’S MAXIMUM AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY.
If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the parties as closely as possible and remain enforceable. The relationship of the parties hereunder is that of independent contractors, and this Agreement will not be construed to imply that either party is the agent, employee, or joint venturer of the other. This Agreement is the entire agreement between the parties relating to the subject matter herein and supersedes any and all prior agreements relating thereto. There are no third-party beneficiaries intended under this Agreement. No partnership, joint venture, or similar relationship is intended by this Agreement. Either party may assign, transfer, or delegate this Agreement or any right or obligation or remedy hereunder. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. This Agreement shall be governed by and construed under the laws of the State of Massachusetts, without regard to its conflicts of laws principles. The parties agree that any dispute arising from or relating to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Boston, Massachusetts. Except as explicitly stated otherwise, legal notices shall be served on each party at the mailing address set forth in the Order Form. Tidelift may also deliver notices to Customer via its portal for the Services.
As used in this Agreement, the following terms will be as defined in the Order Form: Subscriber, Effective Date, Subscription Term.
“Agreement” means these terms and conditions, any attached or subsequently executed Order Forms, and any addenda or documents expressly referred to herein.
“Services” means the service generally made available by Tidelift as defined in the Service Description, and any additional services described in the applicable portion of the Order Form.
“Service Description” means Tidelift’s then-current description generally applicable to the Service. The current version thereof as of the Effective Date is available at https://tidelift.com/subscription.
50 Milk St, 16th Floor, Boston, MA 02109
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