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TUPLO MASTER SERVICES AGREEMENT
1. Services.
1.1. General. Tuplo provides (a) a hosted software-as-a-service product designed to assist companies with inventory and order management , e-commerce sales and point of sale (the "Services") and (b) a desktop software application for use in connection with the Services (the "Software"). Tuplo may also provide additional professional services (the "Professional Services") or maintenance services ("Maintenance Services") in connection with the Services or Software. This Master Services Agreement (this "MSA"), together with any applicable Orders, SOWs and Maintenance Annexes (each as defined below), will govern the Services, Professional Services and Maintenance Services (collectively, the "Tuplo Offerings"). This MSA, all Orders, SOWs and Maintenance Annexes are collectively referred to as this "Agreement."
(a) Orders. Customer may obtain the Services pursuant to one or more mutually executed order forms (each, an "Order"). Each Order will outline (i) the Services selected by Customer, (ii) the initial period the Services will be accessible and provided (the "Initial Subscription Period") and any renewal periods (each, a "Renewal Subscription Period" and, collectively, the "Subscription Period"), and (iii) the fees for the Services per Initial Subscription Period and any Renewal Subscription Period (the "Subscription Fees").
(b) SOWs. Customer may obtain the Professional Services pursuant to one or more mutually executed statements of work (each, an "SOW"). Each SOW will outline (i) the Professional Services performed, (ii) the period the Professional Services will be performed (each, a "Professional Services Term"), and (iii) the fees for the Professional Services (the "Professional Services Fees").
(c) Maintenance Annexes. Customer may obtain the Maintenance Services pursuant to one or more mutually executed maintenance annexes (each, a "Maintenance Annex"). Each Maintenance Annex will outline (i) the Maintenance Services performed, (ii) the period the Maintenance Services will be performed (each, a "Maintenance Services Term"), and (iii) the fees for the Maintenance Services (the "Maintenance Services Fees")
(d) Additional Terms. Capitalized terms utilized but not defined in this MSA are defined in the Order, SOW or Maintenance Annex, as applicable. To the extent that a conflict arises between the terms and conditions of an Order, SOW or Maintenance Annex, on the one hand, and the terms and conditions of this MSA, on the other, the terms and conditions of this MSA will govern unless the Order, SOW or Maintenance Annex specifically identifies the section of this MSA that is superseded by the Order, SOW or Maintenance Annex. This MSA is incorporated by reference into all Orders, SOWs and Maintenance Annexes.
1.2. Customer Data. Customer hereby instructs and authorizes Tuplo to: (a) use any data or information of or about any of Customer or Customer's users that is provided by Customer to Tuplo or collected through the Services ("Customer Data") to provide the Services to, and communicate with, Customer and its users; and (b) create and use aggregated or de-identified information, data and statistics derived from the Customer Data or related to Customer's usage of the Services ("Usage Data") to monitor the performance of the Services, improve the Services, and to develop new product and service offerings.
2. Rights and Restrictions.
2.1. Customer Rights. Subject to the terms and conditions of this Agreement: (a) upon the parties' mutual execution of an Order, during the applicable Subscription Period, Tuplo (i) will provide access to the Services to Customer and (ii) hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable license to install and run one (1) copy of the Software on one (1) Customer-owned and -controlled desktop computer per Software seat license (as specified in the applicable Order); (b) upon the parties' mutual execution of an SOW, during the applicable Professional Services Term, Tuplo will use commercially reasonable efforts to perform the Professional Services described in that SOW; and (c) upon the parties' mutual execution of a Maintenance Annex, during the applicable Maintenance Services Term, Tuplo will use commercially reasonable efforts to perform the Maintenance Services. Tuplo reserves all rights not expressly granted in this Agreement, and no licenses are granted Tuplo to Customer under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement.
2.2. Restrictions. Except as expressly authorized by this Agreement, Customer may not, in whole or in part, (a) copy, modify, or create derivative works of the Services or Software, (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Services or Software, (c) reverse engineer, decompile, disassemble, decrypt, re-engineer, reverse assemble, reverse compile or otherwise translate, create, or attempt to create the source code of the Services, Software, or their structural frameworks, or perform any process intended to determine the source code for the Services or Software, (d) use the Services or Software to store or transmit any viruses, software routines or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions, (e) copy, frame or mirror any part or content of the Services or Software, (f) build a competitive product or service, or copy any features or functions of the Services or Software, (g) interfere with or disrupt the integrity or performance of the Services or Software, (h) attempt to gain unauthorized access to the Services or Software or their related systems or networks, (i) disclose to any third party any performance information or analysis relating to the Services or Software, (j) circumvent or attempt to circumvent any technological protection measures intended to restrict access to or use of any portion of the Services or Software or the functionality of the Services or Software, (k) take any action that imposes an unreasonable or disproportionately large load on the Services or Software, (l) use the Services or Software for any purpose that is illegal in any way or that advocates illegal activity, or (m) cause or permit any individual or entity to do any of the foregoing. Customer will be liable to Tuplo for any act and omission of any employee, contractor or user of the Services or Software to the same extent that it would have been had it committed that act or omission.
3. Fees and Payment Terms.
3.1. Fees. Customer will pay to Tuplo (a) the Subscription Fees in accordance with the payment terms set forth in the applicable Order, (b) the Professional Services Fees in accordance with the payment terms set forth in the applicable SOW and (c) the Maintenance Service Fees in accordance with the payment terms set forth in the applicable Maintenance Services Annex ((a), (b) and (c), collectively, the "Fees"). The Fees do not include taxes. Unless otherwise set forth in the Subscription based Order, Maintenance Annex or SOW, as applicable, Customer will pay Tuplo by debit/credit card or ACH on or before the renewal date. Unless otherwise set forth in the Non-Subscription based Order, Maintenance Annex or SOW, Tuplo will invoice Customer on a monthly basis in advance for all Fees and Customer will pay all invoiced Fees and other charges to Tuplo within 15 days of the date of the invoice. All payments made under this Agreement, the Order, the applicable SOW and the applicable Maintenance Annex will be made (i) in U.S. Dollars and (ii) by check or by bank wire transfer in immediately available funds to an account designated by Tuplo or by credit/debit card/ACH via an authorized Tuplo payment processor. If by credit/debit card, Customer hereby (1) authorizes Tuplo (or its authorized payment processor) to charge the credit/debit card number provided to Tuplo, and (2) represents and warrants that Customer is authorized to use and have Fees charged to the credit/debit card number provided to Tuplo.
3.2. Interest and Taxes. Customer will be responsible for, and will pay all sales and similar taxes, all license fees and similar fees levied upon the provision of the Tuplo Offerings, excluding only taxes based solely on Tuplo's net income. Notwithstanding any terms to the contrary in this Agreement, (a) Tuplo will not be obligated to issue any refunds for Fees paid, and (b) Tuplo, at its sole discretion, may modify the Subscription Fees during any Subscription Period, provided that modifications will only be effective as of the directly subsequent Subscription Period.
(a) Customer will be responsible for collection and remittance of all applicable state sales taxes in accordance with each state’s economic nexus requirements. If Customer is required to collect and remit sales tax in any state, Tuplo will upon request offer collection of estimated sales tax as a part of the Tuplo Offerings. Tuplo provides no guarantee that the estimated amount of sales tax collected for Customer is sufficient to meet Customer’s sales tax collection obligations. Customer shall be responsible for any discrepancies between the estimated sales tax and the actual sales tax required to be collected and remitted by Customer to the applicable taxing authority. Tuplo shall not be held liable for any interest, penalties, or other charges resulting from the non-payment, overpayment, or late payment of sales tax by the Customer to any taxing authority.
3.3. Suspension. If any Subscription Fees are overdue or any other Fees or charges under this Agreement are 30 days or more overdue, Tuplo may, without limiting its other rights or remedies, (a) suspend all Services until those Fees are paid in full or (b) immediately terminate this Agreement without any further cure period and accelerate Customer's unpaid Fee obligations such that all those obligations become immediately due and payable upon termination.
4. Confidentiality. "Confidential Information" means all information disclosed (whether in oral, written, or other tangible or intangible form) by one party (the "Disclosing Party") to the other party (the "Receiving Party") concerning or related to this Agreement or the Disclosing Party (whether before, on or after the Effective Date) that the Receiving Party knows or reasonably should know, given the facts and circumstances surrounding the disclosure of the information by the Disclosing Party, is confidential information of the Disclosing Party. The Receiving Party will maintain in confidence the Confidential Information and will not use such Confidential Information except as expressly permitted in this Agreement. The Receiving Party will use the same degree of care in protecting the Confidential Information as the Receiving Party uses to protect its own confidential and proprietary information from unauthorized use or disclosure, but in no event less than reasonable care. Confidential Information will be used by the Receiving Party solely for the purpose of carrying out the Receiving Party's obligations or exercising the Receiving Party's rights under this Agreement. Each party agrees that the terms and conditions of this Agreement will not be disclosed to any third party; provided, however, that each party may disclose the terms and conditions of this Agreement: (a) to that party's equity holders, affiliates, consultants, legal counsel and financing sources; (b) in connection with the enforcement of this Agreement or rights under this Agreement; or (c) in connection with an actual or proposed equity investment, financing, change of control, merger, acquisition of all or a portion of the business or assets of that party, or any similar transaction. The foregoing confidentiality obligations will not apply to the extent that a party is required, in the reasonable opinion of that party's legal counsel, to disclose information by applicable law, regulation, rule (including rule of a stock exchange, listing agency or automated quotation system), order of a governmental agency or a court of competent jurisdiction or legal process, including tax authorities.
5. Representations and Warranties. Each party represents and warrants that (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation, (b) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement, (c) the person signing this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement, and (d) this Agreement is valid, binding and enforceable against it in accordance with its terms. Further, Customer represents, warrants and covenants that (i) it possesses all necessary rights and consents to grant Tuplo the rights set forth in this Agreement with respect to all Customer Data, (ii) it has collected all Customer Data in accordance with all applicable laws, rules, and regulations, (iii) neither the Customer Data, nor Tuplo’s use of the Customer Data in accordance with this Agreement, will (x) infringe, misappropriate, or otherwise violate any rights of any third party or (y) violate applicable laws, rules, or regulations and (iv) Customer will use the Services in accordance with all applicable laws, rules, and regulations.
6. Disclaimer and Limitation of Liability.
6.1 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5, THE TUPLO OFFERINGS ARE PROVIDED OR OTHERWISE MADE AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE WARRANTIES EXPRESSLY INCLUDED IN SECTION 5 ARE IN LIEU OF, AND TUPLO EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE.
6.2 Limitation of Liability. TUPLO'S SOLE AND AGGREGATE LIABILITY TO CUSTOMER ON ANY AND ALL CLAIMS, LOSSES, OR LIABILITIES ARISING OUT OF THIS AGREEMENT AND THE RELATIONSHIP BETWEEN CUSTOMER AND TUPLO WILL BE LIMITED TO DIRECT DAMAGES AND WILL IN NO EVENT EXCEED THE FEES ACTUALLY PAID TO TUPLO IN THE PRECEDING 12 MONTH PERIOD UNDER THE ORDER, SOW OR MAINTENANCE ANNEX GIVING RISE TO THE LIABILITY AND ASSOCIATED WITH SERVICES, PROFESSIONAL SERVICES OR MAINTENANCE SERVICES PROVIDED. IN NO EVENT WILL TUPLO BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES OR FOR ANY LOSS OF PROFITS OR BUSINESS.
7. Indemnification.
7.1 Indemnification by Tuplo. Tuplo will defend Customer against any third-party claim, suit, action, or proceeding (a "Claim") alleging that the Services or Software infringe any intellectual property rights of any third party and will pay all resulting damages finally awarded against Customer by a court of competent jurisdiction or agreed in a settlement approved by Tuplo in accordance with this Section 7. Tuplo’s obligations in this Section
7.1 will not apply to the extent the Claim results from or arises in connection with (a) any combination of the Services (or any portion thereof) with any equipment, software, data or any other materials not provided by Tuplo, (b) any modification to the Services by any party other than Tuplo or its authorized personnel, (c) the use of the Services in a manner contrary to the terms of this Agreement, or (d) the continued use of the Services after Tuplo has provided substantially equivalent non-infringing software or services.
7.2 Indemnification by Customer. Customer will defend Tuplo and its directors, officers, employees and agents ("Tuplo Indemnitees") from any Claims, and will indemnify and hold harmless the Tuplo Indemnitees from and against all related damages, liabilities, costs and expenses, resulting from or arising in connection with (a) Customer Data, (b) any negligence or willful misconduct by Customer or a party acting on its behalf, or (c) any alleged or actual breach of Customer's obligations under this Agreement.
7.3 Infringement Claims. In the event of a Claim pursuant to Section 7.1, or if Tuplo believes that that Claim may be brought, Tuplo may, at Tuplo's option and at Tuplo's expense, (a) replace the applicable Services or Software with a non-infringing equivalent, (b) modify the applicable Services or Software so they are non-infringing, (c) procure for Customer the right to continue using the Services or Software, or (d) terminate this Agreement upon 30 days written notice to Customer. Section 7.1 and this Section 7.3 set forth Customer's sole remedy and Tuplo's sole obligation for the Claims described in Section 7.1.
7.4 Procedures. The indemnifying party's indemnification obligations under this Section 7 are conditioned upon the indemnified party (a) giving prompt written notice of the Claim to the indemnifying party once the indemnified party becomes aware of the Claim (provided that failure to provide prompt written notice to the indemnifying party will not alleviate an indemnifying party's obligations under this Section 7 to the extent any associated delay does not materially prejudice or impair the defense of the related Claims), (b) granting the indemnifying party the option to take sole control of the defense (including granting the indemnifying party the right to select and use counsel of its own choosing) and settlement of the Claim (except that the indemnified party’s prior written approval will be required for any settlement that reasonably can be expected to require an affirmative obligation of the indemnified party), and (c) providing reasonable cooperation to the indemnifying party, and at the indemnifying party’s request and expense, assistance in the defense or settlement of the Claim.
8. Term, Termination and Effect of Termination.
8.1 Term. This Agreement commences on the date of last signature below or on the date where Customer submits their Order electronically where this Agreement is presented. Each Order, SOW and Maintenance Annex commences on the effective date specified therein. Unless earlier terminated as set forth in Section 8.2 or as otherwise provided in the Order, SOW or Maintenance Annex, (a) each Order continues through the Initial Subscription Period and automatically renews for successive Renewal Subscription Periods unless and until one party provides written notice to the other party of its intent not to renew the Initial Subscription Period or then-current Renewal Subscription Period at least 30 days prior to its expiration, (b) each SOW continues through the Professional Services Term and (c) each Maintenance Annex continues through the Maintenance Services Term.
8.2 Termination. Either party may terminate this Agreement in its entirety or any Order, SOW or Maintenance Annex individually for cause if the other party materially breaches this Agreement or the applicable Order, SOW or Maintenance Annex and does not remedy the breach within 30 days after its receipt of written notice of the breach. Further, notwithstanding any terms to the contrary in this Agreement, Tuplo may immediately terminate this Agreement in its entirety or any Order, SOW or Maintenance Annex individually on written notice to Customer if Customer is in breach of Section 2.2 of this MSA. The Order, SOW, or Maintenance Annex may specify additional termination rights.
8.3 Effect of Termination or Expiration. Termination of this Agreement in its entirety automatically terminates all Orders, SOWs and Maintenance Annexes. Termination of an Order, SOW or Maintenance Annex individually does not terminate any other Orders, SOWs or Maintenance Annexes in effect. Upon any termination or expiration of this Agreement (or any Order, SOW or Maintenance Annex), (a) all rights granted to Customer under this Agreement (or that Order, SOW or Maintenance Annex) and all obligations imposed on Tuplo under this Agreement (or any Order, SOW or Maintenance Annex) will immediately cease, (b) Customer will immediately pay to Tuplo all amounts due and payable up to the effective date of termination of this Agreement (or that Order, SOW or Maintenance Annex), (c) each party will promptly return to the other party all Confidential Information of the other party then in its possession or destroy all copies of Confidential Information of the other party, at the other party's sole discretion and direction, provided, that a party may retain electronically-archived copies of Confidential Information subject to the terms of this Agreement while retained, and (d) notwithstanding subsection (c), Customer will uninstall, delete and destroy all copies of the Software under this Agreement (or the terminated Order) and certify the same in writing to Tuplo. Notwithstanding any terms to the contrary in this Agreement, (i) all defined terms and Sections 1.1(d), 2.2, 3, 4, 6, 7, 8.3 and 9 will survive any termination or expiration of this Agreement (or the applicable Order, SOW or Maintenance Annex) and (ii) no refunds will be issued upon any termination or expiration of this Agreement (or the applicable Order, SOW or Maintenance Annex).
9. General Provisions.
9.1 Independent Contractors. Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
9.2 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Oregon, without resort to its conflict of law provisions. Each party irrevocably submits to the exclusive jurisdiction of any Oregon state court sitting in Deschutes County, Oregon or U.S. federal court sitting in Portland, Oregon (the "Chosen Courts") in any litigation arising out of or relating to this Agreement, agrees that all claims in respect of that litigation will be heard and decided only in that Chosen Court, waives any claim of inconvenient forum or other challenge to venue in that Chosen Court, and agrees not to bring or maintain that litigation before any tribunal other than the Chosen Courts (except, for clarity, in any proper appeal from a Chosen Court).
9.3. Publicity. Notwithstanding any terms to the contrary in this Agreement, Customer consents to Tuplo's use of Customer's name and logo on the Tuplo website and on Tuplo’s promotional and marketing related materials, identifying Customer as a customer of Tuplo and describing Customer's use of the Services.
9.4. Third-Party Services. Customer acknowledges and agrees that Tuplo may use software, hosting infrastructures, or other services provided by third parties in connection with the Services or Software ("Third-Party Services") and, notwithstanding any terms to the contrary in this Agreement, Tuplo disclaims any liability with respect to the Third-Party Services. Customer agrees to abide by the terms and conditions provided by Tuplo with respect to the Third-Party Services.
9.5. Maintenance and Modifications. Notwithstanding any terms to the contrary in this Agreement, Customer acknowledges and agrees that (a) Tuplo may conduct maintenance on the Services from time to time without prior notice to Customer and (b) Tuplo may modify features of the Services from time to time at Tuplo's sole discretion, provided that those modifications will not materially degrade the Services.
9.6. Assignment. Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by a party, by operation of law or otherwise, without the prior written consent of the other party, and any attempted transfer, assignment or delegation without that consent will be void and without effect. Notwithstanding the foregoing, Tuplo may freely assign this Agreement or any right or duty under this Agreement to an affiliate or to any successor to substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization, or other transaction. This Agreement will be binding upon and enforceable against any successor or permitted assignee.
9.7. Amendments and Waivers. No modification, addition or deletion, or waiver of any rights under this Agreement will be binding on a party unless clearly understood by the parties to be a modification or waiver and signed by a duly authorized representative of each party. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.
9.8. Notices. Any notice or communication required or permitted to be given hereunder will be in writing, signed or authorized by the party giving notice, and may be delivered by hand, deposited with an overnight courier, sent by confirmed email, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as identified on this Agreement or at any other address as may hereafter be furnished in writing by either party to the other party. That notice will be deemed to have been given as of the date it is delivered. Notice is effective on the earlier of 10 days from being deposited for delivery or the date on the confirmed facsimile, confirmed email or courier receipt.
9.9. Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, (a) that invalidity, illegality or unenforceability will not affect any other provision of this Agreement or invalidate or render unenforceable that provision in any other jurisdiction, and (b) that provision, in that jurisdiction, will be replaced by a valid, legal and enforceable provision that best reflects the parties' intent for that first provision.
9.10. Audit. Tuplo may, by itself or through an independent third party, audit Customer’s use of the Services or Software to verify Customer is in compliance with the terms and conditions of this Agreement. Customer agrees to provide reasonable access to Customer’s systems and records for purposes of conducting these audits.
9.11. Counterparts. This Agreement may be executed (a) in two or more counterparts, each of which will be deemed an original and all of which will together constitute the same instrument; and (b) by the parties by exchange of signature pages by mail, facsimile or email (if email, signatures in Adobe PDF or similar format).
9.12. Force Majeure. Except for payments due under this Agreement, neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control including, but not limited to, acts of God (fire, storm, floods, earthquakes, etc.), acts of terrorism, civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of any services provided by any Third-Party Services providers, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party.