Terms of Use

TULLI

TERMS OF USE AND MASTER SUBSCRIPTION AGREEMENT

Revised May 13, 2020

1. CONTRACT STRUCTURE & ORDER-OF-PRECEDENCE

This Tulli Terms of Use and Master Subscription Agreement (“Agreement”) is entered into between Tulli, Inc., a Delaware Corporation (or its predecessor in interest Mach49, LLC) (collectively known as “Tulli”) and the customer (“Customer”) identified on the first order document signed by both Parties referencing this Agreement (“Order Form”), effective as of the effective date identified in that Order Form (“Effective Date”).  Capitalized terms in this Agreement are defined in Section 17 (Definitions) and elsewhere in this Agreement. This Agreement and all Order Forms govern Customer’s access to and use of Tulli’s Service, and SOW govern any Professional Services Tulli provides to Customer.  Customer and Tulli may be referred to in this Agreement individually as a “Party” and collectively as the “Parties.”  In the event of any conflicts between this Agreement, any Order Form, and/or any SOW, the following order-of-precedence applies: SOW take precedence and prevail over Order Forms solely with respect to the subject matter of SOW; and Order Forms and SOW take precedence and prevail over this Agreement solely with respect to their respective subject matter.

THIS IS A LEGAL AND ENFORCEABLE CONTRACT BETWEEN TULLI AND CUSTOMER. CUSTOMER IS RESPONSIBLE FOR CAREFULLY READING ALL TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE SIGNING AN ORDER FORM, CLICKING “ACCEPT,” OR ACCESSING OR USING ANY TULLI SERVICE. BY SIGNING AN ORDER FORM, OR ACCESSING OR USING ANY TULLI SERVICE, CUSTOMER CONFIRMS THAT CUSTOMER HAS ACCESSED ONLINE AND/OR BEEN PROVIDED A COPY OF THIS AGREEMENT AND HAS READ AND ACCEPTS THIS AGREEMENT IN ITS ENTIRETY. NOTWITHSTANDING ANY DIFFERENT OR ADDITIONAL TERMS CUSTOMER MAY REFERENCE OR PROVIDE, TULLI’S OFFER OR ACCEPTANCE TO ENTER INTO AN AGREEMENT WITH CUSTOMER WITH RESPECT TO ANY TULLI SERVICE IS EXPRESSLY LIMITED TO THE TERMS OF THIS AGREEMENT AND CONDITIONED ON CUSTOMER’S CONSENT TO THIS AGREEMENT.

2. OWNERSHIP OF SERVICE & CUSTOMER DATA

2.1 Ownership of the Service.  The Service is the property of Tulli, and is protected by copyright, patent, trade secret and other intellectual property laws. Tulli and its licensors retain any and all rights, title and interest in and to the Service (including, without limitation, all Intellectual Property Rights), including all copies, modifications, extensions and derivative works thereof. Customer’s right to use the Service is limited to the rights expressly granted in this Agreement and the applicable Order Form(s). All rights not expressly granted to Customer are reserved and retained by Tulli and its licensors.

2.2 Ownership of Customer Data.  As between Customer and Tulli, (a) all Customer Data is the property of Customer, and (b) Customer retains any and all rights, title and interest in and to the Customer Data, including all copies, modifications, extensions and derivative works thereof.

3. GRANT OF RIGHTS

Subject to the terms and conditions of this Agreement, Tulli hereby grants to Customer the non-exclusive, non-transferable (except as specified in Section 16.2 (Assignment)), worldwide, royalty-free right to access and use the Service during the Service Term in accordance with the terms of this Agreement and all applicable Order Form(s) and SOW (e.g., any usage volume terms and limitations to particular Customer legal entities, business units, projects, brands, products and/or services set forth therein). The number of Production Tenants and Trial Tenants to which Customer is entitled generally depends on the edition of the Tulli Service to which Customer subscribes, as further detailed in Tulli’s online Knowledge Center.

4. CUSTOMER RESPONSIBILITIES

4.1 Customer Responsible for User Accounts.  Customer is responsible for all activity occurring under Customer’s User accounts (except to the extent any such activity is caused by Tulli), and for complying with all laws and regulations applicable to Customer’s use of the Service. Customer also must (a) notify Tulli promptly upon becoming aware of any unauthorized use of any Customer password or account (or any other breach of security of the Service), and (b) notify Tulli promptly upon becoming aware of, and make a reasonable effort to stop, any unauthorized copying, distribution or other misuse of any aspect of the Service.

4.2 Use Restrictions.  Customer must not, without Tulli’s prior written consent, cause or permit the: (a) use, copying, modification, rental, lease, sublease, sublicense, transfer or other commercial exploitation of, or other third party access to, any element of the Service, except to the extent expressly permitted by this Agreement; (b) creation of any modifications or derivative works of the Service; (c) reverse engineering of the Service; (d) gaining of unauthorized access to the Service or its related systems or networks (for example, by impersonation of another user of the Service or provision of false identity information); (e) interference with or disruption of the integrity or performance of the Service or the data contained therein (for example, via unauthorized benchmark testing or penetration testing); (f) sending, storing or use of any Customer Data in connection with the Service for which Customer lacks sufficient ownership or other rights; or (g) sending, storing or use of any infringing, obscene, threatening, libelous or otherwise unlawful or tortious material in connection with the Service (including, without limitation, any illegal spam, or any material that is harmful to children or violates any third party privacy rights). Customer also must use reasonable security measures to access the Service, and must not knowingly send, store or use any material containing any viruses, worms, Trojan horses or other malicious or harmful computer code, files, scripts, agents or programs in connection with the Service. Tulli also reserves the right to take all steps reasonably necessary to protect the security, integrity or availability of the Service (e.g., by temporarily suspending access by anyone who introduces malicious code or attempts to do so), notwithstanding anything to the contrary in this Agreement.

4.3 Customer PCI Responsibilities.  If Customer or its third party service provider processes any credit card information using the Service, Customer (and/or such service provider, as applicable) will: (a) comply with their responsibilities under the Payment Card Industry Data Security Standard (“PCI DSS”); (b) implement and maintain reasonable security measures to protect all cardholder data in their possession or control; and (c) not take any action in connection with using the Service that places Tulli in non-compliance with the PCI DSS (for example, storing any cardholder data in any custom fields of the Service).

5. PRIVACY, SECURITY, CUSTOMER DATA, CONTINUITY & SUPPORT

5.1 Compliance with Privacy Laws.  Tulli and Customer will at all times comply with all Privacy Laws. Tulli will only use Customer Data in the manner permitted by this Agreement and all Privacy Laws; provided, however, that: (a) Customer hereby authorizes Tulli and its Affiliates to use Customer Data solely to provide the Service to Customer and otherwise meet Tulli’s obligations under this Agreement, including engaging sub-processors and contractors to provide the Service to Customer in accordance with this Agreement (Tulli remains liable for such Affiliates’, sub-processors’ and contractors’ compliance with this Agreement); and (b) Customer hereby warrants that, to the extent required by Privacy Laws applicable to Tulli’s provision of the Service to Customer and the parties’ respective obligations under this Agreement, Customer has provided all proper notices under Privacy Laws and obtained from its personnel, customers and all legally-required third parties all rights and permissions legally required in order to grant the authorizations in Section 5.1(a) and to use the Service in the manner contemplated by this Agreement.  Notwithstanding anything to the contrary in this Agreement, if (i) complying with any Privacy Laws would materially change Tulli’s costs or risks in providing the Service (including, without limitation, by requiring that any Tulli data centers be located outside the U.S., or requiring Tulli to operate in violation of any U.S. laws), and (ii) after the Parties’ respective legal counsel meet to discuss the problem, Tulli provides written notice that it does not wish to incur such costs or risks, then each Party will have the right to terminate this Agreement (including all Order Forms and SOW) in writing within thirty (30) days after Tulli provides such written notice – in which case the termination will be effective thirty (30) days thereafter. In the event of such a termination, Customer’s sole right and Tulli’s sole obligation (except to the extent otherwise expressly stated in this Agreement) will be for Tulli to promptly refund to Customer, on a pro rata basis, any Fees paid under all Order Forms and SOW then in effect that are unused as of the termination effective date.

5.1.1    Unless otherwise mutually agreed to in writing by the Parties, Customer’s Tenant(s) will be hosted in Tulli’s US and/or European Union Data Center(s).  Customer’s Tenant(s) may be accessed remotely for support and technical operations purposes from outside of the US and EU.

5.2 Security of the Service, and PCI DSS Compliance.  Throughout the term of this Agreement, Tulli will maintain a data security program for the Service that will: (a) include reasonable administrative, physical, technical, organizational and other security measures to protect against unauthorized access to, or destruction, loss, unavailability or alteration of, any Customer Data processed or stored by the Service; (b) comply with the PCI DSS (or prevailing successor industry standard, if replaced); and (c) include reasonable and appropriate controls pursuant to Tulli’s Service Organization Control (“SOC”) 1 & 2 audit (or other name if replaced).

5.3 Export and Deletion of Customer Data. In the current version, the Service does not allow Customer to export and/or back-up Customer Data, provided, however, on Termination of this Agreement Tulli will certify deletion of Customer Data within thirty (30) days.

5.4 Data Retention. Regardless of the basis for expiration or termination of this Agreement, Tulli will not be obligated to retain any Customer Data for longer than thirty (30) days after any such expiration or termination, unless otherwise agreed in advance by the Parties in writing.

5.5 Business Continuity & Disaster Recovery.  Tulli will implement and maintain throughout the term of this Agreement reasonable business continuity and disaster recovery plans to help ensure availability of the Customer Data following any significant interruption or failure of critical business processes or systems affecting the Service.

5.6 Support & Service Level Agreement.  Tulli will provide technical support for the Service in accordance with Exhibit A to this Agreement (Support and Service Level Agreement) as long as Customer is entitled to receive support under the applicable Order Form and this Agreement.

6. TERM, TERMINATION & EFFECT OF TERMINATION

6.1   TERM

6.1.1 Term of Agreement.  This Agreement will begin on the Effective Date and continue in effect until all Order Forms and SOW expire or are terminated in accordance with this Agreement (e.g., Section 6.2.2), which may be done concurrently with termination of this Agreement.

6.1.2 Term of Order Forms.  The term of each Order Form will be set forth therein, starting on the Effective Date specified therein and continuing for the initial Service term specified therein (“Initial Service Term”).  PLEASE CAREFULLY REVIEW THESE AUTOMATIC RENEWAL TERMS AND THOSE IN SECTION 7.2. Unless otherwise set forth in the applicable Order Form, or unless the Order Form is terminated in accordance with Section 6.2.2, upon expiration of the Initial Service Term, the relevant Order Form will renew automatically on an annual basis for subsequent renewal terms of twelve (12) months (each a “Renewal Service Term“), unless either Party notifies the other Party in writing, at least thirty (30) days (subject to Section 7.2) prior to the end of the then-current Service Term, that it chooses not to renew. The Initial Service Term and all Renewal Service Terms (if any) are referred to in this Agreement collectively as the “Service Term.”

6.2   TERMINATION

6.2.1 Termination of Agreement.  Neither Party will have the right to terminate this Agreement without legally valid cause (no termination “for convenience”). Either Party may terminate this Agreement, but only by providing written notice to the other Party, and only after all Order Forms and SOW have expired or been terminated in accordance with this Agreement (e.g., Section 6.2.2), or concurrently therewith.

6.2.2 Termination of Order Form or SOW.  Either Party may terminate any Order Forms and/or SOW in accordance with their respective terms. If not specified in the applicable Order Form or SOW, then subject to the exclusive remedy provisions in this Agreement (e.g., in the sections regarding warranties and Service Credits): either Party may terminate any Order Forms or SOW for cause upon written notice if the other Party fails to cure any material breach thereof, or any material breach of this Agreement, within thirty (30) days after receiving reasonably detailed written notice from the other Party alleging the breach. Either Party may terminate this Agreement, but only by providing written notice to the other Party, and only after all Order Forms and SOW have expired or been terminated in accordance with this Agreement (e.g., Section 6.2.2), or concurrently therewith.

6.3   EFFECT OF TERMINATION

6.3.1 Effect of Expiration or Termination of Agreement.  Sections 1, 2, 4.2, 5.3, 6, 8, 9, 10, 11, 12.3, 13, 14, 15, 16 and 17 of this Agreement will survive any expiration or termination of this Agreement. The applicable Order Forms and SOW may identify additional terms that will survive any expiration or termination of this Agreement.

6.3.2 Effect of Termination of Order Form or SOW.  Subject to the exclusive remedy provisions in this Agreement (e.g., in the sections regarding Compliance with Privacy Laws, Indemnification, Warranties and Service Levels): (a) if Customer terminates an Order Form, SOW and/or this Agreement for uncured material breach in accordance with this Agreement, Customer will be entitled to a refund, on a pro rata basis, of any Fees paid thereunder that are unused as of the termination effective date; and (b) if Tulli terminates an Order Form, SOW and/or this Agreement for uncured material breach in accordance with Section 6.2, all amounts owed by Customer thereunder will become due and payable.

7. ORDER PROCESS

Customer orders the Tulli Service via one or more Order Forms (any of which may be electronic documents, processes or communications) and Customer may also order Tulli’s Professional Services via one or more SOW.  Customer’s Affiliates shall not be permitted access to the Services unless Customer’s Affiliates are also explicitly listed and sign Order Forms and/or SOW with Tulli that are governed by this Agreement, in which case all references to “Customer” in this Agreement shall be interpreted to refer to the relevant Customer Affiliate for purposes of interpreting such Affiliate Order Forms and SOW; provided, however, that Tulli’s maximum liability under Section 14 to Customer and all of its Affiliates who sign Order Forms or SOWs under this Agreement shall not exceed, in the aggregate, the limits stated in Section 14.

7.1 Purchase Orders.  If Customer requires that a purchase order (“PO”) be issued before making payment under an Order Form or SOW, Customer must provide to Tulli such valid PO conforming to the applicable Order Form or SOW in time for Customer to meet its payment obligations. The terms and conditions of any PO (or of any other unilateral Customer document not agreed in writing by authorized representatives of both Parties) will have no effect on the rights or obligations of the Parties, regardless of any failure to object to such terms and conditions.

7.2. Modification of Fees Upon Renewal.  Tulli reserves the right to modify the Fees for its Service under one or more Order Forms, effective upon commencement of the next Renewal Service Term of the relevant Order Form(s), by notifying Customer of such change in writing at least thirty (30) days before the end of the then-current Service Term, unless Customer notifies Tulli in writing, at least twenty (20) days prior to the end of the then-current Service Term, that Customer chooses not to renew such Order Form(s).

8. FEES & PAYMENT

8.1 Payment Details.  Customer must pay all fees and charges in accordance with this Agreement and each mutually executed Order Form and SOW (“Fees”).  Except to the extent otherwise expressly stated in this Agreement or in an Order Form or SOW: (a) all obligations to pay Fees are non-cancelable and all payments are non-refundable; (b) Customer must make all payments without setoffs, withholdings or deductions of any kind; (c) Customer must pay all Fees due under all Order Forms and SOW within thirty (30) days after Customer receives each invoice (invoices are deemed received when Tulli emails them to Customer’s designated billing contact); and (d) all payments must be in U.S. Dollars.  Except to the extent otherwise expressly stated therein, if an applicable Order Form or SOW provides for payment via credit card or electronic money transfer (e.g., ACH), Tulli is permitted to process such payment on the date of Tulli’s invoice.  Upon Order Effective Date, Tulli invoices and collects in advance annual fees for use of the Service based on the edition of the Service subscribed to by Customer, and Customer’s anticipated usage volume using the Service (after the Initial Service Term, Tulli will invoice Customer for such annual fees at the start of each Renewal Service Term); and if Customer’s use of the Service exceeds the committed volume specified above, Customer will pay the additional usage-based fees described in this Order Form in arrears as invoiced.

8.2 Taxes.  Tulli’s Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities in connection with any Order Forms or SOW. Customer is responsible for paying all such taxes, levies, or duties. Customer is not, however, responsible for paying any taxes based solely on Tulli’s income or which do not arise from any Order Form or SOW. If Tulli has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer unless Customer provides Tulli a valid tax exemption certificate authorized by the appropriate taxing authority.

8.3 Customer Contact Information.  Customer agrees to provide Tulli accurate billing and other contact information for each Order Form and SOW at all times during the Service Term, including the name of Customer’s applicable legal entity, and the street address, e-mail address, name and telephone number of an authorized billing contact. Customer shall update this information within thirty (30) days after any changes, via email to Tulli’s Accounts Receivable team at accounts@Tulli.com for billing contact information. Customer shall also maintain, at all times during the Service Term, at least one User who is a current employee and is authorized to administer Customer’s use of the Service (e.g., by creating accounts and resetting passwords).

8.4 Consequences of Non-Payment.  If Customer fails to make any payments required under any Order Forms or SOW, then in addition to any other rights Tulli may have under this Agreement or applicable law: (a) Customer will owe Tulli an interest penalty of one and one-half percent (1.5%) per month on any outstanding balance under each delinquent invoice, or the maximum permitted by law (whichever is less); (b) Tulli will be entitled to recover its reasonable attorneys’ fees, other legal expenses (including expert witness fees and expenses on appeal) and other reasonable costs to collect such amounts; and (c) If Customer’s account remains delinquent (with respect to payment of a valid invoice) for thirty (30) days after receipt of a delinquency notice from Tulli, which may be provided via email to Customer’s designated billing contact, Tulli may temporarily suspend Customer’s access to the Service for up to ninety (90) days to pursue good faith negotiations before pursuing termination in accordance with Section 6. Customer will continue to incur and owe all applicable Fees irrespective of any such Service suspension based on such Customer delinquency.

9. NON-PRODUCTION AND/OR TRIAL USAGE

From time to time, to the extent applicable, Customer may use the Service for evaluation, testing or other purposes where such use is outside a Production Tenant (e.g., by using as a Trial Tenant or another non-production service environment). By using the Service on such a non-production basis, Customer accepts the Service on an “as is” basis and acknowledges Tulli provides no express or implied warranties, indemnities or security commitments, and Tulli will have no liability, in connection with such use, notwithstanding anything to the contrary in this Agreement.

10. THIRD PARTY INTERACTIONS

To the extent use of the Service requires use of any third-party products or services not made available by Tulli, Customer may be required to separately purchase/license such products or services directly from the applicable third party. In addition, in connection with using the Service, Customer may choose to purchase/license certain other third-party products and/or services made available by Tulli. Any third-party products and services (even if included on an Order Form or otherwise made available via a Tulli-controlled site) and any terms associated therewith (even if presented by Tulli) are between Customer and the relevant third parties. Tulli does not support, license, control, endorse or otherwise make any representations or warranties regarding any third-party products or services under this section, and in no event will Tulli have any liability whatsoever in connection therewith.

11. PROFESSIONAL SERVICES

If Customer wishes to purchase any training, implementation or other professional services from Tulli relating to the Service (“Professional Services”), the Parties will mutually execute one or more separate SOW containing the relevant terms and conditions. Tulli Professional Services are separate and apart from the Service, and neither Party’s obligations in connection with the Service are dependent in any way on any Professional Services. Except to the extent expressly set forth to the contrary in any applicable SOW, the following provisions will apply to all SOW: (a) As between Customer and Tulli, Customer will retain all ownership rights in and to all copyrightable works, deliverables, designs, inventions, know-how, software, techniques, trade secrets, work product and other materials created by or for Customer without any contribution by Tulli and provided to Tulli under the SOW. Customer grants Tulli a non-exclusive, non-transferable, worldwide, royalty-free license to reproduce, perform, display, distribute, create derivative works of, and otherwise use such Customer-owned materials in connection with providing the Service during the Term of this Agreement and otherwise performing its obligations under this Agreement; (b) As between Customer and Tulli, Tulli will retain all ownership rights in and to all copyrightable works, deliverables, designs, inventions, know-how, software, techniques, trade secrets, work product and other materials created by or for Tulli (either alone or jointly with Customer or others) and provided to Customer under the SOW, and any derivative works thereof, excluding any incorporated Customer Confidential Information (collectively, “Tulli PS Materials”); and (c) Subject to the terms of this Agreement, Tulli grants Customer a non-exclusive, non-transferable, worldwide, royalty-free license to reproduce, perform, display, create derivative works of, and otherwise use internally the Tulli PS Materials solely in connection with the Service during the Term of this Agreement.

Nothing in this Agreement will prohibit, restrict or limit (i) Tulli from performing similar Professional Services for any third party, or (ii) Customer from hiring any third party to perform similar Professional Services (though Customer is not permitted to give any direct competitor of Tulli access to the Service or any Tulli PS Materials without Tulli’s prior written consent).

12. WARRANTIES & DISCLAIMERS

12.1 Mutual Warranties.  Each Party represents and warrants to the other that it has the legal power and authority to enter into this Agreement, and that this Agreement has been duly authorized, executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms.

12.2 Additional Tulli Commitments.  Tulli further represents and warrants that: (a) It will use reasonable technical means to screen for and detect disabling devices, viruses, trojan horses, trap doors, back doors, Easter eggs, time bombs, cancelbots and other computer programming routines designed to damage, detrimentally interfere with, surreptitiously intercept or expropriate any other software or data; (b) The Service will perform substantially in accordance with the relevant Service description found at http://tulli.ai or such other location as Tulli shall, from time to time, advise Customer, under normal use and circumstances; and (c) It will make reasonable efforts to notify Customer, at least five (5) days in advance via Tulli’s Normal Communication Channels, of any scheduled changes Tulli believes are likely to have a material, adverse impact on Customer’s use of the Service (“Material Changes”). (As a multi-Tenant SaaS vendor, Tulli reserves the right to make enhancements and other changes to the Service, including occasional deprecation and removal of certain features and functionality, subject to the Service warranty in Section 12.2(b).). If Tulli breaches any warranties in this Section 12.2, Customer’s exclusive remedy and Tulli’s sole obligation will be for Tulli to make reasonable efforts to correct the non-conformity or, if Tulli is unable to correct the non-conformity within ninety (90) days after receipt of Customer’s written notice, for Customer to terminate the applicable Order Form(s) and receive a refund, on a pro rata basis, of any annual fees prepaid under such Order Form(s) that are unused as of the termination effective date.

12.3 Warranty Disclaimers.  EXCEPT TO THE EXTENT EXPRESSLY STATED IN SECTIONS 5 OR 12 OF THIS AGREEMENT OR IN EXHIBIT A HERETO: (A) TULLI AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED (IN FACT OR BY OPERATION OF LAW), REGARDING THE SERVICE, PROFESSIONAL SERVICES, OR ANY MATTER WHATSOEVER; AND (B) TULLI AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICE OR ANY PROFESSIONAL SERVICES ARE OR WILL BE ERROR-FREE, MEET CUSTOMER’S REQUIREMENTS, ACHIEVE ANY PARTICULAR RESULTS, OR BE TIMELY OR SECURE. TULLI AND ITS LICENSORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICE AND ANY PROFESSIONAL SERVICES, AND CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON TO ANY THIRD PARTY ANY REPRESENTATION OR WARRANTY BY TULLI.

THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET OR ELECTRONIC COMMUNICATIONS. TULLI IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE, LOSS OR LIABILITY RESULTING FROM SUCH PROBLEMS NOT CAUSED BY TULLI.  CUSTOMER AGREES THAT ITS SUBSCRIPTION TO THE SERVICE AND FEES DUE OR PAID UNDER THIS AGREEMENT ARE NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES, NOR BASED ON ANY ORAL OR WRITTEN COMMENTS REGARDING ANY FUTURE FUNCTIONALITY OR FEATURES. MORE GENERALLY, IN ENTERING INTO THIS AGREEMENT, NEITHER PARTY IS RELYING ON ANY OTHER COMMITMENTS, STATEMENTS OR OTHER MATTERS NOT EXPRESSLY ADDRESSED IN THIS AGREEMENT, AN ORDER FORM OR AN SOW.

13. INDEMNIFICATION

13.1  By Tulli.  Tulli will defend Customer, its Affiliates, officers, directors and employees from and against any claims asserted by a third party based on an allegation that use of the Service in accordance with this Agreement and the applicable Order Form(s) infringes a copyright or a patent of the U.S.A., a member state of the European Union, Canada or Australia (collectively, “Claims”). Tulli will also indemnify Customer and its Affiliates, officers, directors and employees by paying all damages, costs and expenses (including reasonable legal fees and costs) awarded by a court of competent jurisdiction in a final, non-appealable judgment, or agreed in a written settlement agreement agreed in writing by Tulli, arising out of such Claims.  If (a) any aspect of the Service is found by a court in a final, non-appealable judgment, or in Tulli’s reasonable opinion is likely to be found by a court in a final, non-appealable judgment, to infringe upon a third party Intellectual Property Right, or (b) the continued use of the Service is enjoined, then Tulli will promptly and at its own expense: (i) obtain for Customer the right to continue using the Service in accordance with this Agreement and the applicable Order Form(s); (ii) modify the item(s) in question to no longer be infringing; or (iii) replace such item(s) with a non-infringing functional equivalent. If, after reasonable efforts, Tulli determines in good faith that options (i), (ii) and (iii) are not feasible, Tulli will remove the infringing item(s) from the Service and refund to Customer on a pro rata basis any Fees paid by Customer for such infringing element(s) that are unused as of the removal date.  Tulli will have no obligation or liability for any Claim under this section to the extent arising from: (x) the combination, operation or use of the Service with any product, device, software or service not supplied by Tulli to the extent the combination creates the infringement; (y) the unauthorized alteration or modification by Customer of the Service, or (z) Tulli’s compliance with Customer’s designs, specifications, requests, or instructions in providing Professional Services to the extent the Claim is based on such compliance.

13.2 By Customer.  Customer will defend Tulli, its Affiliates, officers, directors and employees from and against any claims asserted by a third party based on a breach by Customer of Section 4 (Customer Responsibilities) of this Agreement. Customer will also indemnify Tulli and its Affiliates, officers, directors and employees by paying all damages, costs and expenses (including reasonable legal fees and costs) awarded by a court of competent jurisdiction in a final, non-appealable judgment, or agreed in a written settlement agreement agreed by Customer in writing, arising out of the third party claims described in this section.

13.3 Requirements for Indemnification.  Each Party’s respective defense and indemnity obligations under Sections 13.1 and 13.2 are contingent upon the indemnified Party: (a) promptly giving notice of the third party claim to the defending/indemnifying Party once the claim is known; (b) giving the defending/indemnifying Party sole control of the defense and settlement of the claim and not compromising or settling the claim without the defending/indemnifying Party’s approval (though the defending/indemnifying Party must not settle such claim unless the settlement unconditionally releases the other Party of all liability and does not adversely affect the other Party’s business or service in a material manner); and (c) providing appropriate information and reasonable cooperation to the defending / indemnifying Party in connection with the claim.  THE FOREGOING ARE THE DEFENDING / INDEMNIFYING PARTY’S SOLE OBLIGATIONS, AND THE INDEMNIFIED PARTY’S EXCLUSIVE REMEDIES WITH RESPECT TO INDEMNIFICATION AND THE MATTERS ADDRESSED IN THIS SECTION 13.

14. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, BUT ONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:

14.1 EXCEPT FOR SUMS DUE TULLI UNDER APPLICABLE ORDER FORMS AND SOW, AND EXCEPT WITH RESPECT TO CUSTOMER’S OBLIGATIONS AND CUSTOMER’S LIABILITY UNDER SECTIONS 4.2 (USE RESTRICTIONS), 4.3 (CUSTOMER PCI RESPONSIBILITIES) AND 13 (INDEMNIFICATION), NEITHER PARTY’S TOTAL AGGREGATE LIABILITY OR RESPONSIBILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY ORDER FORMS OR SOW WILL EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY;

14.2 EXCEPT WITH RESPECT TO CUSTOMER’S OBLIGATIONS AND CUSTOMER’S LIABILITY UNDER SECTIONS 4.2 (USE RESTRICTIONS), 4.3 (CUSTOMER PCI RESPONSIBILITIES) AND 13 (INDEMNIFICATION), IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES OR LICENSORS BE LIABLE OR OTHERWISE OBLIGATED TO THE OTHER PARTY OR ANYONE ELSE FOR ANY LOSS OF PROFITS, REVENUE, OPPORTUNITIES, ECONOMIC ADVANTAGE, GOODWILL, DATA OR USE, OR FOR ANY INDIRECT, CONSEQUENTIAL, HYBRID, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S AFFILIATES OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMAINING AVAILABLE REMEDY FAILS ITS ESSENTIAL PURPOSE; AND

14.3 THE TERMS OF SECTION 14 APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT (INCLUDING, BUT NOT LIMITED TO, BREACH OF WARRANTY), TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY.  THE PROVISIONS OF SECTION 14 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND TULLI, AND THE FEES CHARGED FOR THE SERVICE ARE BASED ON THIS ALLOCATION OF RISKS AND THESE LIMITATIONS OF LIABILITY.

15. CONFIDENTIALITY

15.1 Definition.  As used in this Agreement, “Confidential Information” means information and materials provided by the disclosing Party (“Discloser”) to the Party receiving such information or materials (“Recipient”) that (a) are identified as confidential at the time of disclosure, or (b) a reasonable person in the relevant industries should understand to be confidential based on the nature of the information and materials and all other relevant factors. For the avoidance of doubt, Customer’s Confidential Information includes, without limitation, the Customer Data and Customer’s non-public business plans, and Tulli’s Confidential Information includes, without limitation, all pricing terms offered to Customer under any Order Form, Tulli’s non-public business plans, all non-public aspects of the Tulli Technology, and the results of any evaluation of the Service performed by or on behalf of Customer for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

15.2 Purpose.  Recipient must not use any of Discloser’s Confidential Information for any purpose other than carrying out Recipient’s obligations or exercising its rights under this Agreement (the “Purpose”). For the avoidance of doubt, use of Confidential Information in an aggregated and anonymized manner that does not include Personal Data is not prohibited.

15.3 Permitted Disclosures and Obligations.  Recipient also must not disclose to any third party any Confidential Information, other than to Recipient’s Affiliates, contractors and consultants who (a) need to know such information in order to fulfill the Purpose, and (b) are bound by confidentiality obligations substantially similar to Recipient’s under this Agreement (each Party is fully responsible for its respective Affiliates’, contractors’ and consultants’ compliance with this Agreement). Recipient must treat all Discloser Confidential Information with the same degree of care Recipient gives to its own Confidential Information, but not less than reasonable care. Further, neither Party may disclose publicly the existence or nature of any negotiations, discussions or consultations in progress between the Parties without the prior written consent of the other Party.  Recipient and its Affiliates, contractors and consultants who receive Confidential Information hereunder must: (i) not use any such Confidential Information to compete with Discloser or in any other way except as reasonably necessary for the Purpose; (ii) not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects received from Discloser under this Agreement that embody Confidential Information; (iii) promptly notify Discloser of any unauthorized use or disclosure of its Confidential Information of which Recipient becomes aware; and (iv) reasonably assist Discloser in remedying any such unauthorized use or disclosure. For the avoidance of doubt, a security breach involving Customer Data will be governed by Section 5.2, and not Section 15.

15.4 Exclusions.  Recipient’s obligations under Section 15 will not apply to any Discloser Confidential Information that Recipient can prove: (a) is or becomes part of in the public domain through no fault of Recipient; (b) is rightfully in Recipient’s possession free of any confidentiality obligation; (c) was independently developed by Recipient without use of any Discloser Confidential Information; or (d) is communicated by Discloser to an unaffiliated third party free of any confidentiality obligation. A disclosure by Recipient of any Confidential Information (i) in response to a valid order or other legal process issued by a court or other governmental body having jurisdiction, (ii) as otherwise required by law, or (iii) necessary to establish the rights of either Party under this Agreement will not be a breach of this Agreement if, to the extent legally permitted, Recipient gives Discloser prompt notice and reasonable cooperation so Discloser may seek to prevent or limit such disclosure.

15.5 Ownership and Destruction of Confidential Information.  As between Discloser and Recipient, all Discloser Confidential Information is the property of Discloser, and no license or other rights are granted or implied hereby. All materials provided to Recipient by Discloser, whether or not they contain or disclose Confidential Information, are Discloser’s property. Promptly after any request by Discloser, Recipient will (a) destroy or return to Discloser all Confidential Information and materials in Recipient’s possession or control, and (b) upon written request by Discloser, confirm such return/destruction in writing; provided, however, that the Recipient may retain electronic copies of any computer records or electronic files containing any Discloser Confidential Information that have been created pursuant to Recipient’s standard, reasonable archiving and backup practices, as long as Recipient continues to comply with this Agreement with respect to such electronic backup copies for so long as such Confidential Information is retained.

15.6 Export. Exchange of Confidential Information under this Agreement is subject to all applicable export laws and regulations. Except to the extent permitted by a separate written agreement, the Parties will not disclose any information requiring an authorization to be exported. Each Party also specifically agrees to comply with all applicable laws, regulations, orders and sanctions relating to prohibitions or limitations on relationships or transactions with prohibited countries or individuals (e.g., those administered by the U.S. Commerce or Treasury Departments).

15.7 Confidentiality Period.  Recipient’s obligations with respect to Discloser’s Confidential Information under Section 15 will remain in effect for the term of this Agreement and for three (3) years after any expiration or termination of this Agreement.

16. GENERAL

16.1 Governing Law and Dispute Resolution.  This Agreement is governed by Delaware law and controlling United States federal law, without regard to conflicts of law provisions of any jurisdiction. The Service is a service, not a good, and is not subject to the Uniform Commercial Code, the Uniform Computer Information Transactions Act, or the United Nations Convention on the International Sale of Goods. Any disputes, actions, claims or causes of action arising out of or relating to this Agreement or the Service will be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, USA. However, other than with respect to seeking injunctive relief in connection with matters that qualify for such an extraordinary remedy under applicable law, neither Party may initial any litigation against the other Party until after providing clear written notice of its intention to do so and first making a good faith effort to resolve the dispute informally through escalation to an appropriate level of executive management of both Parties for at least thirty (30) days after providing such notice.

16.2 Assignment & Other Transfers.  Neither Party may assign, sublicense or otherwise transfer (by operation of law or otherwise) this Agreement, or any of a Party’s rights or obligations under this Agreement, to any third party without the other Party’s prior written consent, which consent must not be unreasonably withheld, delayed or conditioned; provided, however, that upon written notice to the other Party, either Party may assign or otherwise transfer this Agreement, along with all associated Order Forms and SOW (and all its rights and obligations thereunder), (a) to a successor-in-interest in connection with a merger, acquisition, reorganization, assignment, or a sale of most or all of its assets, or other change of control, or (b) to its Affiliate.  Notwithstanding anything to the contrary in this section, however: (i) in the event of any permitted transfer by Customer under this section to a direct competitor of Tulli, Tulli will have the right to terminate this Agreement, including all associated Order Forms and SOW, for cause under Section 6.5  (in the event of such a termination, Tulli will promptly refund to Customer, on a pro rata basis, all Fees prepaid by Customer under all Order Forms and SOW then in effect that are unused as of the termination effective date); and (ii) Customer is not allowed to transfer to a successor-in-interest or Affiliate a subscription to the Growth Edition (or other name if replaced) version of the Service if Tulli otherwise would not allow the proposed transferee to subscribe to that version, e.g., because Tulli believes the size or complexity of the proposed transferee’s business warrants a subscription to the Enterprise Edition or Nine Edition (or other name if replaced) version of the Service.

In the event of a transfer by Customer that is permitted under this section, the rights granted under this Agreement shall continue to be subject to the same usage limitations that applied under applicable Order Forms prior to the transfer (e.g., any transaction volume terms, and any limitations to particular Customer legal entities, business units, projects, brands, products and/or services set forth therein). Any purported assignment or other transfer in violation of this section is void. Subject to the terms of this section, this Agreement will bind and inure to the benefit of the Parties and their respective permitted successors and transferees.

16.3 Force Majeure. If either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement (other than payment obligations) due to any cause beyond its reasonable control, e.g., war, riots, pandemic, labor unrest, fire, earthquake, flood, hurricane, other natural disasters and acts of God, Internet service failures or delays, and denial of service attacks (collectively, “Force Majeure”), the affected Party’s performance will be excused for the resulting period of delay or inability to perform.

16.4 Marketing. Tulli is permitted to identify Customer as a Tulli customer on Tulli’s website and marketing materials and, within thirty (30) days after Customer goes live on the Service, Customer and Tulli will also issue a mutually agreed joint public announcement relating thereto.

16.5 Independent Contractors.  The Parties are independent contracting parties. Neither Party has, or will hold itself out as having, any right or authority to incur any obligation on behalf of the other Party. The Parties’ relationship in connection with this Agreement will not be construed as a joint venture, partnership, franchise, employment, or agency relationship, or as imposing any liability upon either Party that otherwise might result from such a relationship.

16.6 Notices.  All legal notices (e.g., notice of termination of this Agreement or an Order Form based on an alleged material breach) required under this Agreement must be delivered to the other Party in writing (a) in person, (b) by nationally recognized overnight delivery service, or (c) by certified U.S. mail (requiring signature) to the other Party’s corporate headquarters, Attention: Legal Department. With respect to all other notices, Customer may email Tulli at support@tulli.ai, and Tulli may email Customer’s billing contact identified on the applicable Order Form(s) or SOW. Either Party may change its notice address by giving written notice to the other Party.

16.7 Anti-Corruption.  Customer acknowledges it has not received or been offered any illegal or otherwise improper bribe, kickback, payment, gift or other thing of value by any Tulli employee, representative or agent in connection with this Agreement. Customer will use reasonable efforts to promptly notify Tulli at legal@tulli.ai if Customer becomes aware of any circumstances that are contrary to this acknowledgment.

16.8 Government Users.  If Customer is a U.S. government entity, or this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that the Service constitutes software and documentation provided as “Commercial Items” under 48 C.F.R. 2.101 and developed solely at private expense, and are being licensed made accessible to U.S. government Users as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.

16.9 Execution. This Agreement may be signed electronically and in counterparts, in which case each signed copy will be deemed an original as though both signatures appeared on the same document.

16.10 Entire Agreement.  This Agreement, together with any applicable Order Forms and SOW (including any other terms referenced in any of those documents), comprises the entire agreement between Customer and Tulli regarding the subject matter of this Agreement, supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding such subject matter, and may only be modified by a document signed by authorized representatives of both Parties.

17. DEFINITIONS

As used in this Agreement:

“Affiliate” means a company, corporation, individual, partnership or other legal entity that directly or indirectly controls, is controlled by, or is under common control with a Party to this Agreement. For purposes of this definition, “control” means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;

Trial Tenant” means a Non-Production Tenant identified as an “Trial Tenant” (or its equivalent, if renamed) on the applicable Order Form;

Business Day” means Monday through Friday excepting regular holidays and based on the time zone of Tulli’s primary place of business;

Content” means the audio and visual information, documentation, software, products and services contained in or made available via the Service, other than Customer Data and Customer Confidential Information;

Customer Data” means any data, information or material received by the Service from Customer or Customer’s Users (or from a Free User but only that data, information or material which is not from or that of a Customer) in the course of accessing or using the Service;

“Free User” is a non-paying User of the Services whether gaining access to the Services by virtue of authorization by a Customer or otherwise;

Intellectual Property Rights” means rights under any copyright, patent, trademark, trade secret and other intellectual property laws worldwide;

Non-Production Tenant” means a Tenant the use of which is restricted to processing non-production data solely for evaluation and/or testing of the Services;

Normal Communication Channels” means the online channels through which Tulli normally communicates important information to its customers, e.g., Tulli’s online Knowledge Center and community site when available in Tulli’s discretion, and/or the email address(es) provided by Customer. (Customer must opt-into Tulli’s online community site to receive certain important information regarding such changes and to take other required action relating to use of the Service.);

“Personal Data” means information relating to a natural person as such term is defined by the applicable Privacy Laws, including the General Data Protection Regulation (EU) 2016/679 (GDPR);

“Privacy Laws” means all laws and regulations regarding data privacy and transmission of Personal Data that apply to Tulli’s provision of the Service to Customer (e.g., storing and processing Customer Data in connection with the Service);

Production Tenant” means a Tenant that Customer is permitted to use to process live Customer Data for production use of the Services in accordance with the applicable Order Form;

Service” means (i) the Tulli® SaaS service for technician knowledge workers, accessible via https://www.tulli.ai and/or another Web site or IP address designated by Tulli and which Tulli provides to Customer under an Order Form to this Agreement.  “Service” also includes, without limitation, all other components of the applicable Service, and all related Content and Tulli Technology;

SOW” means Statement(s) of Work, Work Authorization(s) or other contract(s) under which Tulli provides its Professional Services, if any;

User(s)” means Customer’s customers, employees, representatives, consultants, contractors and agents who have been authorized by Customer to use the Service;

Tenant” means a single, discrete operational environment within Tulli’s SaaS environment in which Customer may use the Service;

Tulli’s Normal Support Channels” means as made available in Tulli’s discretion: Tulli’s online support portal, Tulli’s online community site, the “Trust” support status page, and emails sent to the contact duly designated by Customer; and

Tulli Technology” means all of Tulli’s and its licensors’ proprietary technology that Tulli makes available to Customer as part of or in connection with the Service (including, without limitation, any and all software, hardware, products, processes, APIs, algorithms, user interfaces, trade secrets, know-how, techniques, designs and other tangible or intangible technical material or information).

Exhibit A

(SUPPORT AND SERVICE LEVEL AGREEMENT)

This is Exhibit A to Tulli’s Master Subscription Agreement (the “Agreement”). Capitalized terms not defined herein have the meaning indicated in the Agreement and its associated Order Form(s).

I. SUPPORT CONTACTS, TULLI COMMUNITY & CUSTOMIZATIONS:

A. For “Team” - level support (or the equivalent, if renamed), Customer will have access to automated response system, sufficiently up to date in the discretion of Tulli, regarding the Service for purposes of technical support issues with the Service.

B. For “Company” - level support (or the equivalent, if renamed), Customer will Customer will have access to automated response system, sufficiently up to date in the discretion of Tulli, and will have reasonably available live support contact persons (during regular business hours) who are knowledgeable regarding the Service for purposes of technical support issues with the Service.

C. For “Enterprise” - level support (or the equivalent, if renamed), Customer will appoint a reasonable of designated support contact persons knowledgeable regarding the Service for purposes of contacting Tulli’s support team about technical support issues with the Service.

D. Customer must opt-into Tulli’s online community site, to the extent it is made available by Tulli in its discretion: (i) to receive certain important information about updates and other changes to the Service and about the sub-processors (if any) which Tulli uses to provide the Service.

E. The commitments under this exhibit do not apply to customizations, enhancements or other non-standard modifications to the Service requested or made by Customer.

II. SUPPORT FOR TULLI FREE USER TENANTS AND ANY NON-PRODUCTION USERS FOR ALL CUSTOMERS AND ALL EDITIONS:

A. RESPONSE TIMES:  For all support issues relating to Tulli Free Users or Tulli Non-Production Tenants, Tulli will make efforts to respond promptly (via Tulli’s Normal Support Channels, defined below) to all tickets submitted through Tulli’s designated support portal / channel, in any event within two (2) Business Days after receipt. If Tulli fails to meet this response time commitment, Customer’s exclusive remedy and Tulli’s sole obligation will be: (a) for Tulli to make efforts to respond promptly after Customer notifies Tulli that it failed to meet this response time commitment; and (b) if Tulli fails to meet this response time commitment five (5) times during a 3-month period, for Customer to terminate the applicable Order Form and receive a refund, on a pro rata basis, of any Fees paid for the Non-Production Tenant(s) that are unused as of the termination effective date.  

B. SERVICE LEVELS & SERVICE CREDITS:  No Service Level or Service Credit commitments apply to Non-Production Tenants.

III. SUPPORT FOR PRODUCTION TENANTS – TULLI TEAM EDITION CUSTOMERS:

For “Team” - level support (or the equivalent, if renamed):

A. RESPONSE TIMES:  For all support issues relating to Tulli Production Tenants, Tulli will make reasonable efforts to respond promptly (via Tulli’s Normal Support Channels) to all tickets submitted through Tulli’s designated support portal / channel, in any event within three (3) Business Days after receipt. If Tulli fails to meet this response time commitment, Customer’s exclusive remedy and Tulli’s sole obligation will be: (a) for Tulli to make reasonable efforts to respond promptly after Customer notifies Tulli that it failed to meet this response time commitment; and (b) if Tulli fails to meet this response time commitment three (3) times during a 3-month period, for Customer to terminate the applicable Order Form and receive a refund, on a pro rata basis, of any Fees paid for the Production Tenant(s) that are unused as of the termination effective date; and

B. SERVICE LEVELS & SERVICE CREDITS:  No Service Level or Service Credit commitments apply to the Production Tenants.

IV. SUPPORT FOR PRODUCTION TENANTS – TULLI COMPANY AND ENTERPRISE EDITION CUSTOMERS:

For “Company” - level and “Enterprise” - level support (or the equivalent, if renamed), Tulli will provide the following technical support for all Production Tenants:

A. RESPONSE TIMES:  For all support issues relating to Tulli Production Tenants, Tulli will respond in accordance with:

Issue Severity Level                            Response Commitment***

0                                                          One (1) Business Day

1                                                          Two (2) Business Days

2                                                          Six (6) Business Days

3                                                          Ten (10) Business Days

Issue Severity Levels are defined in Section IV-A-1 below.

“Response Commitment” is the maximum time within which Tulli will respond (via Tulli’s Normal Support Channels) to each support issue reported by Customer.

1. Issue Severity Level Definitions

Severity Level 0 (Service Unavailability): Customer experiences complete loss of Service, meeting the definition of “Unavailable” in Section IV-B-1 below.

Severity Level 1 (Severe Issues): Customer experiences a severe defect or configuration issue with the Service that materially impacts Customer’s business in a negative way (excluding Service failures that qualify as Severity Level 0).

Severity Level 2 (Delayed Performance): Customer experiences transactional and operational slowness in the Service (excluding Service issues that qualify as Severity Level 0 or 1).

Severity Level 3 (Routine Requests):  Routine Service support requests relating to issues that don’t qualify as Severity Level 0, 1 or 2.

2. Assignment of Severity Levels: Tulli will determine the Severity Level assigned to each support issue in its reasonable discretion but taking into consideration the Severity Level input by Customer.

3. Remedies for Breach of Response Time Commitments: If Tulli fails to meet the response time commitments in Table 1 above, Customer’s exclusive remedy and Tulli’s sole obligation will be: (a) for Tulli to make efforts to respond promptly after Customer notifies Tulli that it failed to meet the relevant response time commitment; and (b) if Tulli fails to meet the relevant response time commitments three (3) times during a calendar quarter, for Customer to terminate the applicable Order Form and receive a refund, on a pro rata basis, of any Fees paid for the Production Tenant(s) that are unused as of the termination effective date.

B. SERVICE LEVELS & SERVICE CREDITS:

1. Uptime Commitment

The Quarterly Uptime Percentage for the Service will be ninety-nine and nine-tenths percent (99.9%) (the “Uptime Commitment”).  Subject to the exclusions described in Subsection IV-B-2 below, “Quarterly Uptime Percentage” is calculated by subtracting from 100% the percentage of 1-minute periods during any quarterly billing cycle (i.e., 3 calendar months) in which Customer’s Production Tenant(s) is(are) Unavailable out of the total number of minutes in that quarterly billing cycle. “Unavailable” and “Unavailability” mean that, in any 1-minute period, all connection requests received by Customer’s Production Tenant(s) failed to process (each a “Failed Connection”); provided, however, that no Failed Connection will be counted as a part of more than one such 1-minute period (e.g. a Failed Connection will not be counted for the period 12:00:00-12:00:59 and the period 12:00:30-12:01:29). The Quarterly Uptime Percentage will be measured based on the industry standard monitoring tools Tulli uses.

2. Exclusions from Quarterly Uptime Percentage

Notwithstanding anything to the contrary in this exhibit, any Service Unavailability issues resulting from any of the following will be excluded from calculation of Quarterly Uptime Percentage:

2.1 Regularly scheduled maintenance of the Service that does not exceed six (6) hours per 1-month period and is communicated by Tulli at least twenty-four (24) hours in advance via Tulli’s Normal Support Channels. Tulli typically schedules such regularly scheduled maintenance once per month;

2.2 any issues with a third-party service to which Customer subscribes;

2.3 any problems not caused by Tulli that result from (a) computing or networking hardware, (b) other equipment or software under Customer’s control, (c) the Internet, or (d) other issues with electronic (or mobile and mobile network) communications or connectivity;

2.4 Tulli’s suspension or termination of the Service in accordance with the Agreement and/or its associated Order Form;

2.5 exceeding Tulli’s published Tenant or use limits for any published tier of pricing;

2.6 software that has been subject to unauthorized modification by Customer;

2.7 negligent or intentional misuse of the Service by Customer; or

2.8 “Beta,” “soft launch” or “limited availability” products, features and functions identified as such by Tulli.  Customer may elect to use certain billable Tulli Professional Services to resolve issues associated with the excluded areas listed in this Subsection IV-B-2.  Such Professional Services may require Customer to complete a network assessment, and/or give Tulli access to Customer’s network, in order to diagnose the issue.

3. Service Credits

If Tulli does not meet the Uptime Commitment with respect to any particular calendar quarter (i.e., the Quarterly Uptime Percentage was below 99.9%), and Customer is financially negatively impacted thereby, then as Customer’s sole and exclusive remedy, and only upon Customer’s written request in accordance with Section 4 below:  Tulli will provide to Customer, for each calendar month in such quarter during which the Monthly Uptime Percentage was below 99.9% a service credit (“Service Credit(s)”) equal to the annual fees paid by Customer for the Service during that month under all affected Order Forms then in effect (but excluding any Professional Services fees) which may be applied toward future Customer Services payment obligations.  For purposes of the preceding sentence, “Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of 1-minute periods during any billing cycle for a calendar month during which Customer’s Production Tenant(s) is(are) Unavailable out of the total number of minutes in that monthly billing cycle. The Monthly Uptime Percentage will be measured based on the industry standard monitoring tools Tulli uses.

4. Service Credit Process

To receive a Service Credit, Customer must submit a request by sending an email to support@tulli.ai.  To be eligible, the credit request must: (a) include the dates and times of each Unavailability incident that Customer claims to have experienced, along with sufficient details to enable Tulli to verify the information; and (b) be received by Tulli within ten (10) Business Days after the last Failed Connection that is part of Customer’s Service Credit claim. If Customer is past due with respect to any payment obligation, or otherwise in material breach of any contractual obligation to Tulli, Customer is not eligible for any Service Credits. Service Credits will be issued to Customer within sixty (60) days after Tulli confirms that Customer qualifies for the Service Credit under this section.

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