Master Services Agreement

This Master Services Agreement (the “Agreement”) is entered into as of the date of the Order Form (the “Effective Date”) between Tulip.io Inc., a Canada corporation (“Tulip”) with offices at at 210-137 Glasgow Street, Office #192, Kitchener, Ontario, Canada N2G 4X8, and the Customer named on the Order Form.

1. Subscription Services. Subject to Customer’s compliance with the terms and conditions of this MSA, Tulip agrees to provide the services (“Subscription Services”) consisting of the cloud-based delivery of one or more products (“Product(s)”) specified in one or more subscription order forms (“Subscription Order Form(s)” or “SOF”) executed by an authorized representative of each Party which reference(s) this MSA.  Upon execution, each SOF will be incorporated into and form a part of this MSA.  For the avoidance of doubt, in the event of a conflict between this MSA and a SOF, SOW or CR, the terms and conditions of the SOF, SOW or CR shall take precedence.

2. Implementation; Professional Services. Tulip may perform additional services for Customer (e.g., implementation, training, or installation services in connection with the Services) (“Professional Services”), by describing such Professional Services and any applicable fees in a statement of work to be executed by the Parties (“SOW”).  Upon execution, each SOW will be incorporated into and form a part of this MSA. Upon payment of any applicable fees set forth in each SOW, Tulip agrees to use reasonable commercial efforts to provide the Professional Services described therein for the term specified therein (if any).

3. Support. Subject to Customer’s payment of all applicable fees, Tulip will provide support for the Services in accordance with Schedule “A” attached hereto.

4. Product Updates. From time to time, Tulip may make updates, patches, enhancements, changes, or fixes for the Products generally available to its customers without additional charge (“Updates”), and such Updates will become part of the applicable Products and subject to this MSA; provided that Tulip shall have no obligation under this MSA or otherwise to provide any such Updates.

5. Product Subscription. Subject to Customer’s compliance with the terms and conditions of this MSA (including any limitations and restrictions set forth on the applicable SOF), Tulip grants Customer the non-exclusive, non-transferable right to access and use the Product(s) specified in such SOF during the applicable service term specified in such SOF (the “Service Term”) for internal business purposes only, in each case only as provided herein and in accordance with Tulip’s applicable official user documentation for such Product that Tulip makes available to Customer (the “Documentation”), and the usage parameters specified in the applicable SOF. Customer acknowledges that the Products are provided as hosted software-as-a-service offerings. Customer receives no software to download, install, or host, and obtains no license to any software code. All access to and use of the Products occurs through Tulip’s hosted environment via the internet. 

6. Intellectual Property. As between the Parties, Tulip retains all right, title, and interest (including intellectual property rights) in and to the Products, and all software, products, works, and other property and deliverables related thereto or created, used, or provided by or on behalf of Tulip pursuant to this MSA, and any copies, updates, patches, enhancements, changes, fixes, and derivative works of and to any of the foregoing.  Any Documentation, instructions or other ancillary materials which are distributed or otherwise provided to Customer hereunder shall be deemed a part of the Products and subject to all of the terms and conditions of this MSA. No rights or licenses are granted except as expressly set forth in this MSA. Nothing in this MSA will impair Tulip’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Customer may develop, produce, market, or distribute.  

7. Feedback. Customer may (but is not obligated to) provide suggestions, comments or other feedback to Tulip with respect to the Products (“Feedback”).  Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Tulip notwithstanding anything else.  Tulip acknowledges and agrees that all Feedback is provided “AS IS” and without warranty of any kind. Customer shall, and hereby does, grant to Tulip a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up subscription to use and exploit the Feedback for any purpose.  

8. Fees; Payment; Taxes. Customer shall pay Tulip the fees for the Services and Professional Services as set forth in each SOF and/or SOW and/or Change Request (“CR”) plus any additional fees or other amounts that are payable by Customer for the Services or Professional Services pursuant to this MSA (“Fees”).  Unless otherwise noted in a SOF, SOW, or CR, all Fees are in United States dollars and are payable upon execution of said SOF, SOW or CR.  Each past due invoice that has remained unpaid for more than thirty (30) days from the date of such invoice is subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law.  All Fees are exclusive of any bank fees, taxes, levies, duties or similar governmental assessments of any nature including but not limited to, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”).  Customer will be responsible for self-assessment of and self-remission of any and all Taxes associated with this MSA, SOF, SOW or CR between the Parties to the applicable collecting agency or party.  In the event that Tulip pays any bank fees or Taxes on behalf of the Customer in relation to a transaction with Customer, the Customer will reimburse Tulip for its payment of all bank fees, Taxes, fees or assessments imposed by any governmental authority or financial institution upon the Services or Professional Services provided hereunder to Customer (excluding taxes based upon Tulip’s net income).  All Fees paid are non-refundable and are not subject to set-off. If Customer exceeds any user or usage limitations set forth in an SOF, then (i) Tulip shall invoice Customer for such additional users or usage at the overage rates set forth in the SOF (or if no overage rates are set forth in the SOF, at Tulip’s then-current standard overage rates for such usage), in each case on a pro-rata basis from the first date of such excess usage through the end of the SOF initial term or then-current SOF renewal term (as applicable) set out in the applicable SOF, and (ii) if such SOF term renews, such renewal shall include the additional fees for such excess users and usage.

9. Restrictions. Except as expressly set forth in this MSA, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of any Product (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on any Product; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to any Product; (iv) use any Product for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from any Product or any portion thereof; (vi) use any Product to build an application, product or service that is competitive with any Tulip product or service; (vii) interfere or attempt to interfere with the proper working of any Product or any activities conducted on any Product; or (viii) bypass any measures Tulip may use to prevent or restrict access to any Product (or other accounts, computer systems or networks connected to any Product); or (ix) use or permit the use of any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of any Product. Customer (a) shall use all Products in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Products (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use any Products in a manner that violates any third party intellectual property, proprietary, contractual or other third party rights. 

10. Customer Data. For purposes of this MSA, “Customer Data” shall mean any data, information, logos, trademarks or other material provided, uploaded, or submitted by Customer, including without limitation by its users, employees, contractors, agents or customers, to Tulip in the course of using the Services.  Customer shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein.  Customer, not Tulip, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use, of all Customer Data.  Tulip shall use commercially reasonable efforts to maintain the security of the Services and the Customer Data in accordance with Tulip’s then-current Data Processing and Security Terms (“DPA”) hosted at: www.tulip.com/documents/legal/dpst.

Tulip is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Services except to the extent that such access is due to Tulip’s negligence or willful misconduct.  Customer is responsible for the use of the Services by any person or third party to whom Customer has given access to the Services, even if Customer did not authorize such use.  Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is ninety (90) days or more delinquent.  Notwithstanding anything to the contrary, Customer acknowledges and agrees that Tulip may (i) use and modify (but not disclose) Customer Data for the purposes of (A) providing the Services to Customer and (B) generating Aggregated Anonymous Data (as defined below), and (ii) use and make available Aggregated Anonymous Data for Tulip’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Tulip’s products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Tulip in connection with Customer’s use of the Services, but only in aggregate, anonymized form which (x) does not incorporate any personally identifiable information, and (y) can in no way be linked specifically to, or otherwise be used to identify, Customer or to any of Customer’s users, employees, contractors, agents or customers.  To the extent that Tulip processes personally identifiable information about any living individual in the course of providing the Services (“Personal Data”), it will do so only as a data processor acting on behalf of Customer (as data controller) and in accordance with the requirements of this MSA and the DPA. Tulip will process the Personal Data in accordance with Customer’s lawful instructions and will not (i) assume any responsibility for determining the purposes for which and the manner in which the Personal Data is processed or (ii) process the Personal Data for its own purposes (other than Aggregated Anonymous data for purposes outlined above). Tulip will have in place and maintain throughout the term of this MSA appropriate technical and organizational measures to protect the Personal Data against unauthorized disclosure or access, and against all other unlawful forms of processing. In this Section, the terms “controller”, “processor” and “personal data” will bear the meanings given to them in General Data Protection Regulation (EU) 2016/679. Customer represents and warrants that the collection of such data as contemplated by this MSA does not violate any laws, regulations or any rights of a third party. Customer further represents and warrants that it has obtained all necessary rights and consents to permit Tulip to process data from and about Customer, including, without limitation, data from endpoints, servers, cloud applications and logs and for Tulip to otherwise use and modify the Customer Data as contemplated herein.

11. Confidential Information.

a. Definitions.  For the purposes of this MSA, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of Discloser means any and all information of Discloser or any of its service providers, licensors or customers that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this MSA, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business,  and where Discloser is Customer includes Customer Data; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations. 

b. Confidentiality Covenants.  Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or Affiliates that have a “need to know” for the purposes of receiving or providing the Services and that have entered into written agreements no less protective of such Confidential Information than this MSA; (ii) use Confidential Information of the Discloser other than to exercise its rights or perform its obligations under this MSA; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type. 

c. Exceptions to Confidentiality.  Notwithstanding clause (b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business.

12. Term; Termination. The term of this MSA (the “Term”) shall commence on the Effective Date.  If no SOF or SOW has been executed by the Parties within one (1) year of the Effective Date, this MSA shall automatically terminate.  Upon execution of an SOF, the Term shall continue until the expiration of all SOFs.  In the event of a material breach of this MSA or a SOF, SOW or CR by either Party, the non-breaching Party may terminate the breached agreement by providing written notice to the breaching Party if the breaching Party does not cure such material breach within thirty (30) days of receipt of notice of such material breach.  Either Party may terminate this MSA immediately if the other Party ceases doing business or is the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding, that is not dismissed within sixty days of filing.  All provisions of this MSA and/or a SOF, SOW or CR which by their nature should survive expiration or termination shall survive expiration or termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability. 

13. Effects of Expiration or Termination. In the case of expiration or termination of this MSA, upon request by Customer made before, or within sixty (60) days after, the effective date of expiration or termination, Tulip shall make available to Customer a complete download of all Customer Data in a file or database format in Tulip’s discretion. For clarity, any services provided by Tulip to Customer, including the downloading set out above, and any assistance in exporting the Customer Data, shall be payable by Customer at Tulip’s standard rates then in effect.

14. Suspension. Tulip may immediately suspend or limit Customer’s access to or use of any Service or Professional Service if: (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of such Service or Professional Service results in (or is reasonably likely to result in) damage to or material degradation of such Service or Professional Service which interferes with Tulip’s ability to provide access to such Service or similar professional services to other customers; provided that in the case of subsection (ii): (a) Tulip shall use reasonable good faith efforts to work with Customer to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Tulip shall where practicable provide advance notice to Customer describing the nature of the damage or degradation, and where advance notice is not practicable, Tulip shall provide notice to Customer in a timely manner following the suspension or limitation; and (c) Tulip shall reinstate Customer’s use of or access to such Services, as applicable, if Customer remediates the issue within thirty (30) days of receipt of such notice.  

15. Third Party Products. The Services may be integrated with, interoperate with, provide Customer with access to, or contain links or references to, products, services, data, information, sites or other materials which are provided or operated by third parties (collectively, “Third Party Products”). Third Party Products may include, without limitation, eCommerce, PIN, inventory and payment gateway products or services, as well as related data.  Third Party Products are not provided by Tulip, are not under Tulip’s control, and Customer acknowledges that Tulip is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of Third Party Products. Any provision by Tulip of Third Party Products, and any exchange of data between Customer and any third-party provider of a Third Party Product, is solely between Customer and the applicable third-party provider. To the extent that Customer directs Tulip to integrate the Products with any Third Party Products, (i) Customer consents to Tulip performing such integration, and (ii) Customer represents and warrants that such integration will not cause any conflict with or infringement of any third party rights (including without limitation any terms and conditions applicable to such Third Party Products).

16. Pilots; Beta Services. From time to time, Customer may receive access to and use of the Products or Services on a trial or pilot basis for internal evaluation purposes (the “Pilot”). Customer acknowledges that any Pilot: (a) may be subject to different fees and functionality from those applicable to the Products or Services; (b) may include Beta Services; and (c) will be provided “as is” and “as available”, and Tulip will have no liability or indemnification obligations for any harm, loss or damage arising out of or in connection with any Products or Services during the Pilot. Customer acknowledges that Products and Services accessed during the Pilot or use of Beta Services are not intended for production use. For the purposes of this section, “Beta Services” means any products, services, features, or functionality that Tulip makes available to Customer on a trial, pilot, beta, or evaluation basis, which are identified as such in an SOF or within the Products or Services. 

17. Indemnification. Each Party (“Indemnitor”) shall defend, indemnify, and hold harmless the other Party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim (i) in the case of Tulip as Indemnitor, that the Services infringe, violate, or misappropriate any third party intellectual property right, or (ii) in the case of Customer as Indemnitor, that the Third Party Products with which Customer directs Tulip to integrate, Customer Data or Customer’s provision or use thereof in connection with the Services, or any Customer Data infringe, violate, or misappropriate any third party rights including intellectual property rights.  Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense).  The foregoing obligations of Tulip as Indemnitor do not apply with respect to any Products or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Tulip (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Tulip, (iv) combined with other products, processes or materials not provided by Tulip (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (vi) Customer’s use of the Products is not strictly in accordance herewith, or (vii) Customer’s use of the Products or Services as part of a Pilot (including any use of Beta Services).

18. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

19. Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND CUSTOMER’S OBLIGATION TO PAY FEES DUE IN ACCORDANCE WITH THIS MSA AND THE ASSOCIATED SOF(S), SOW(S) AND/OR CR(S), IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS MSA (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID BY CUSTOMER TO TULIP HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER. NOTWITHSTANDING THE FOREGOING, TULIP SHALL HAVE NO LIABILITY WHATSOEVER ARISING OUT OF OR RELATED TO ANY PILOTS OR BETA SERVICES.

20. Press Materials. Customer consents to the identification as a customer of Tulip on Tulip’s websites. Customer also agrees to be identified in press releases and case studies prepared by Tulip (collectively “Tulip Press Materials”), subject to Customer’s approval.  Customer also agrees to cooperate with Tulip to serve as a reference account upon Tulip’s request.  The foregoing shall be deemed a worldwide, nonexclusive and (except as set forth below) irrevocable license to the use of Customer’s name, trademarks, service marks and logos for these specified purposes. The Parties agree that such license and consent shall terminate upon termination of Customer’s subscription to all Services.

21. Miscellaneous. This MSA and any associated SOFs, SOWs and/or CRs represent the entire agreement between Customer and Tulip with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Tulip with respect thereto (including, without limitation, any nondisclosure agreement entered into by the Parties in the course of negotiating or entering into this MSA). The Parties agree that all terms stated within a purchase order or other similar document from Customer shall be null and void and are expressly rejected. The MSA shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein, excluding conflicts of law rules, and the Parties consent to exclusive jurisdiction in the courts located in the Province of Ontario. All notices under this MSA shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by  e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.  Except as provided in the following sentence, notices must be sent to the contacts for each Party set forth on the signature blocks below.  Either Party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, no modification or amendment of any provision of this MSA shall be effective unless agreed by both Parties in writing, and no waiver of any provision of this MSA shall be effective unless in writing and signed by the waiving Party.  Except for payment obligations, neither Party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such Party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; pandemnic, epidemic, vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts (each, a “Force Majeure Event”). Neither Party may assign any of its rights or obligations hereunder without the other Party’s consent; provided that (i) either Party may assign all of its rights and obligations hereunder without such consent pursuant to a corporate reorganization, merger, or to a successor-in-interest in connection with a sale of substantially all of such Party’s business relating to this MSA, and (ii) Tulip may utilize subcontractors in the performance of its obligations hereunder.  Tulip’s relationship to Customer is that of an independent contractor, and no agency, partnership, joint venture, or employment relationship is created as a result of this MSA and neither Party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this MSA, the prevailing Party shall be entitled to recover costs and attorneys’ fees. If any provision of this MSA is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable or, if the foregoing is not possible will be severed from this MSA and all other provisions of this MSA will remain in full force and effect.   The failure of either Party to act with respect to a breach of this MSA by the other Party shall not constitute a waiver and shall not limit such Party’s rights with respect to such breach or any subsequent breaches. It is the express wish of the Parties that this MSA and all related documents be drawn up in English.  C’est la volonté expresse des Parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.

 

SCHEDULE A

MAINTENANCE & SUPPORT AGREEMENT

Tulip shall maintain a service desk accessible by email ([email protected]) for the purpose of responding to any issues relating to the use or operation of its Services.  

Tulip shall provide support to Customer for Tulip-related problems (i.e., material bugs, errors or defects in the performance of the Service) via Tulip’s support platform/portal or other means as determined by Tulip in accordance with the Priority Levels set forth below.  Customer support will include the answering of inquiries concerning the problem and Tulip attempts at correction or work-around on a commercially reasonable basis.

Tulip shall respond to Customer requests for maintenance and support in accordance with the Priority Levels set forth below.

Tulip shall also provide to Customer (a) any known problem resolutions, corrections or fixes relating to Tulip, and (b) all modifications, enhancements, improvements, new releases and updates to the Service, in each case as Tulip makes the same available to its general client base.  All such problem resolutions, corrections, fixes, modifications, enhancements, improvements, new releases and updates shall be considered part of the Service for purposes of the MSA.

Customer is expected to put in place first level incident management processes and to perform basic triage and problem determination before escalating an incident to the Tulip service desk. In this way incidents related to training, business processes, customer systems or customer hardware can be filtered out and addressed locally where possible. Customer is also expected to participate in problem determination activities with Tulip service desk personnel as part of isolating problems, determining resolutions and workarounds, and effecting a return to service.  Problems which are not reproducible shall not be subject to the service levels set out herein.

1. Priority Levels

Customer shall establish in its initial email to Tulip requesting support (subject to confirmation by Tulip) the Priority Level for a support service based on the urgency of the problem as follows:

Standard Support for Clienteling and/or Appointments

Priority Level	Priority Description	Response Time Objective1	Response Time Coverage	Examples
P1 – Urgent	Entire Service is inoperable (i.e., no features are available); no operation is possible.	<1 hour	Business Hours2	Site down No features available Imports not working Frequent alerts indicating the system is or will soon be unstable
P2 – High	A portion of Tulip is inoperable (i.e., some key features not available or not functioning properly).	<4 hours	Business Hours	A single feature is not working Performance of entire app is not optimal Includes any component related to production environment (App or backend services that impact end user business function) Pricing-related issues which are system-wide
P3 – Normal	Localized Problem: intermittent problem that affects productivity or ease of use of Service; (oftentimes a workaround is available.) There is a time-sensitive issue important to long term productivity that is not causing an immediate work stoppage.	<3 Business Days3	Business Hours	A single user receives an error A single user can’t access the app A feature is not working as expected
P4 – Low	Other inquiries, questions, or service requests.	<5 business days	Business Hours	‘How do I’ questions Functionality clarification

Notes:

1. The response time objectives above indicate Tulip’s target to respond to Customer’s contact, acknowledge receipt of the incident and potentially assign an engineer to triage and investigate the incident in the event of a P1/P2. Response time objectives describe Tulip’s goals and do not represent a guarantee of performance.
2. “Business Hours” means between the hours of 9:00am – 5:00pm, Eastern Time Monday to Friday, excluding Canadian statutory holidays.
3. “Business Days” means Monday to Friday, excluding Canadian statutory holidays.

Resolutions to the above problems may, as decided by Tulip, be deployed by Tulip as an urgent fix, as part of a scheduled fix ahead of the next scheduled update, or in a scheduled quarterly release.

2. Uptime Requirements

Tulip shall use commercially reasonable efforts to provide an uptime of any Service (“Uptime”) that is no less than 99.5% within any calendar month during the applicable Service Term (the “Uptime Requirement”).  

Uptime is measured as time that the applicable Service is available without a complete or material partial outage outside of Permitted Outages.  Permitted Outages are (i) any scheduled or announced maintenance outages; (ii) any interrupted host system availability as a result of a cause beyond Tulip’s reasonable control; (iii) any cause due to third parties upon which the Service depends (e.g. components, systems, hardware, equipment, API’s, etc.) not controlled by Tulip, such as, but not limited to third party service providers; (iv) failure of Customer, or any third party who provides services to Customer, to perform in a timely manner any obligation under the MSA, or any other failure caused by Customer, such third party, or their representatives or designees; (v) Customer’s use of hardware or software that is not listed in the MSA, an SOF, an SOW, or otherwise approved in writing by Tulip for use with the Service, or that has been modified without approval in writing by Tulip; (vi) any Force Majeure Event; or (vii) DNS slowness, instability or unavailability, or any third party components over which Tulip exercises no control, including, without limitation, the Internet or Customer’s own network connections.

Maintenance shall be scheduled between the hours of 12:00am Wednesday and 1:00am Wednesday Eastern time each week. Customer shall be notified of non-scheduled maintenance a minimum of 24 hours prior to maintenance, via email or telephone. Customer is responsible to log an incident with the Tulip support center for any downtime outside of the Permitted Outages.