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 5 Michael St., Suite 201, Kitchener, ON, Canada N2G 1L7, and the Customer named on the Order Form.
1. Services. Tulip.io Inc., a Canada Corporation (“Tulip”) agrees to provide, and Customer agrees to purchase, the services (“Services”) consisting of the cloud-based delivery of one or more products (“Product(s)”) specified in one or more order forms (“Order Form(s)”) executed by an authorized representative of Customer which reference this Agreement. Upon execution, each Order Form will be incorporated into and form a part of this Agreement.
2. Implementation; Professional Services. Tulip may perform certain 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 fees therefor on an Order Form. Upon payment of any applicable fees set forth in each Order Form, 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 upgrades, 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 Agreement; provided that Tulip shall have no obligation under this Agreement or otherwise to provide any such Updates.
5. Product License. Subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) Tulip grants Customer the non-exclusive, non-transferable, non-sublicensable right to use the Product(s) specified in such Order Form during the applicable Service Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with Tulip’s applicable official user documentation for such Product (the “Documentation”). As between the parties, Tulip retains all right, title, and interest in and to the Products, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Tulip for the purposes of this Agreement, including any copies and derivative works of the foregoing. Any software, Documentation, instructions or other ancillary materials which are distributed or otherwise provided to Customer hereunder (including without limitation any software identified on an Order Form) shall be deemed a part of the Products and subject to all of the terms and conditions of this Agreement. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. 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 license to use and exploit the Feedback for any purpose. Nothing in this Agreement 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.
6. Fees; Payment. Customer shall pay Tulip fees for the Services and Professional Services as set forth in each Order Form (“Fees”). Unless otherwise specified in an Order Form, all Fees shall be invoiced annually in advance and all invoices issued under this Agreement are payable in U.S. dollars upon receipt. Past due invoices that have remained unpaid for more than thirty (30) days from the date of such invoices are 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 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 Agreement and any Addenda and Order Form to the applicable collecting agency or party. In the event that Tulip pays Taxes on behalf of the Customer, the Customer will reimburse Tulip for its payment of all Taxes, fees or assessments imposed by any governmental authority upon the 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 on an Order Form, then (i) Tulip shall invoice Customer for such additional users or usage at the overage rates set forth on the Order Form (or if no overage rates are set forth on the Order Form, 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 Order Form Initial Term or then-current Order Form Renewal Term (as applicable), and (ii) if such Order Form Term renews (in accordance with Section 9), such renewal shall include the additional fees for such excess users and usage.
7. Restrictions. Except as expressly set forth in this Agreement, 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 knowingly 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, contractual or other proprietary rights.
8. Customer Data. For purposes of this Agreement, “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 Data Processing and Security Terms 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 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) internally 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) freely 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 personal data 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 Agreement. 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 Agreement 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 Agreement 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 to permit Tulip to process data from and about Customer, including, without limitation, data from endpoints, servers, cloud applications and logs.
9. Confidentiality. “Confidential Information” means all trade secrets, know-how, software, pricing, and other financial, business or technical information disclosed by or for a party in relation to this Agreement that is designated as confidential or which a reasonable person would understand as confidential or proprietary given its nature and the circumstances surrounding disclosure. Confidential Information does not include any information the receiving party can demonstrate is (a) already known by it or rightfully furnished to it by a third party without restriction, (b) generally available to the public without breach of this Agreement, or (c) independently developed without reference to the disclosing party’s Confidential Information. Except for the specific rights granted by this Agreement, neither party shall use or disclose any of the other party’s Confidential Information without its prior written consent. A party receiving Confidential Information shall use reasonable care to protect it. If required by law, the receiving party may disclose Confidential Information of the disclosing party, but will give adequate prior notice of such disclosure to permit the disclosing party to intervene and request protective orders or other confidential treatment therefor.
10. Term; Termination. The term of this Agreement (the “Term”) shall commence as of the Effective Date. If no Order Form has been executed by the parties within one (1) year of the Effective Date, this Agreement shall automatically terminate. Upon execution of an Order Form, the Term shall continue, and shall last until the expiration of all Order Form Terms. For each Order Form, unless otherwise specified therein, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on such Order Form (the “Order Form Initial Term”), and (y) following the Order Form Initial Term, shall automatically renew for additional successive periods of one year each (each, an “Order Form Renewal Term”) unless either party notifies the other party of such party’s intention not to renew no later than sixty (60) days prior to the expiration of the Order Form Initial Term or then-current Order Form Renewal Term, as applicable. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Tulip may suspend or limit Customer’s access to or use of a Service if (i) Customer’s account is more than sixty (60) days past due, or (ii) Customer’s use of such Service results in (or is reasonably likely to result in) damage to or material degradation of such Services which interferes with Tulip’s ability to provide access to such 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 use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation; 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. Either party may terminate this Agreement 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 Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability. In the case of expiration or termination of this Agreement, 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 billable at Tulip’s standard rates then in effect.
11. 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).
12. 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, Customer Data or Customer’s provision or use thereof in connection with the Services infringe, violate, or misappropriate any third party intellectual property right. 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 do not apply with respect to the 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, or (vi) Customer’s use of the Products is not strictly in accordance herewith.
13. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES AND ADDITIONAL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
14. Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS, 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 AGREEMENT (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 (OR PAYABLE) BY CUSTOMER TO TULIP HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
15. Miscellaneous. This Agreement represents 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 Agreement). The Agreement shall be governed by and construed in accordance with the laws of the State of New York, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction in the courts located in the State of New York. All notices under this Agreement 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 facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. 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 Agreement shall be effective unless agreed by both parties in writing, and no waiver of any provision of this Agreement 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; 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. 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 to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Tulip may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement 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 Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement 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.
Schedule A. Maintenance Support
Tulip shall maintain a service desk accessible by email and phone number (primary telephone number: 1-855-834-4587, e-mail at [email protected]) for the purpose of responding to any issues relating to the use or operation of the Service. The service desk will be monitored 7 days a week, 24 hours a day.
Tulip shall provide to Customer support for Tulip problems (i.e., material bugs, errors or defects in the performance of the Service) via email, telephone or other means as determined by Tulip in accordance with the Severity 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 emails and telephone calls for maintenance in accordance with the Severity 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 upgrades of the Service, in each case as Tulip makes same available to its general client base. All such problem resolutions, corrections, fixes, modifications, enhancements, improvements new releases and upgrades shall be considered part of the Service for purposes of this Agreement.
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 process, 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.
1. Severity Levels
Customer shall establish in its initial phone call or email to Tulip requesting support (subject to confirmation by Tulip) the Severity Level for a support service based on the urgency of the problem as follows:
|Response Time Objective1
|Response Time Coverage
|1 – Critical
|Entire Service is inoperable (i.e., no features are available); no operation is possible; and critical adverse impact on Customer’s essential business operations (including any failure of the Mobile POS module such that transactions cannot be processed across all or a significant portion of the mobile device fleet).
|2 – Significant
|A portion of Tulip is inoperable (i.e., some key features not available or not functioning properly); some operation still possible; and material adverse impact on Customer’s essential business operations.
|3 – Low
|Localized Problem: intermittent problem that affects productivity or ease of use of Tulip; and less than material adverse impact on Customer’s essential business operations.
|4 – Minimal
|Other inquiries, questions, or service requests.
1Response time above indicates Tulip’s target to respond to Customer’s contact, acknowledge receipt of the incident and assign an engineer to triage and investigate the incident. Response time objectives describe Tulip’s goals and do not represent a guarantee of performance.
2Problems which are not reproducible shall not be subject to the service levels set out herein.
3 “Business Hours” means between the hours of 8:00 am – 10:00 pm, Eastern Time on Business Days.
Tulip will begin working on problem resolution or a work-around for each reported incident as follows:
- For Severity Level 1 incidents – within 1 hour of receiving Customer’s report;
- For Severity Level 2 incidents – within 1 business day of receiving Customer’s report;
- For Severity Level 3 or Severity Level 4 incidents – within 7 days of receiving Customer’s report;
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.