Service and Support Agreement

Effective Date: Jan 26, 2022

This Service and Support Agreement applies to Contractor’s Subscription Service as provided pursuant to terms of that certain Master Subscription Services Agreement between Customer and Contractor dated effective as of the Effective Date of the Master Agreement (MSA).  Capitalized terms used herein and not defined shall have the meaning ascribed to them in the Agreement.

Specifications: The Subscription Service provides a certain set of capabilities including POS, KDS, Linebusting, Loyalty and reporting which are fully present in the version of the release current as Effective Date. Contractor may develop additional enhancements, modifications and features that are included in the Subscription Service at no cost, or licensed separately for an additional fee.  

1) HQ Training. As part of brand onboarding, Customer will have access to training material related to the features and use of the system and services selected in Exhibit A (Fees).

a) SAAS Manager – Customer will maintain a Customer SaaS Manager responsible for knowing, understanding and communicating to all necessary personnel such as internal support liaisons and training leads, or regional staff the day-to-day operational policies and procedures relating to Subscription Service.  Contractor will provide basic training checklists and Customer will adapt training as needed to satisfy their specific business requirements.  

b) Communicating with Contractor – SAAS Manager will communicate to Contractor via or 1-800-992-9540 for L2/L3 support questions

2) Support issues and resolution procedures. There are three types of support issues with specific actions and responsibilities of Parties toward resolution.

a) L1 Issues – includes issues for which there are known workarounds, and common questions that are resolvable from training or documentation.  Examples include iPad initial set up, re-connecting iPads or Printers or cash drawers, connecting payment terminals, configuring menu, completing orders, employee login or any configuration settings, or management.  Support of third-party equipment such as ISP connectivity and ISP router is outside the scope of this agreement and may only be investigated with additional support fees.

(1)   L1 Resolution Steps: stores will first reach out to Customer SaaS Manager or other Customer support liaison who will help the store resolve the issue.

(2)   If Customer HQ is unable to address the issue, the Customer SaaS Manager will open a ticket and attempt to reproduce the issue in the HQ Lab.

b) L2 Issues – are previously unidentified issues that impact or limit a portion of the functionality.

(1)   L2 Resolution Steps: the SAAS manager will open a support ticket and attempt to replicate the issue in the HQ Lab.

(2)   The issue will be considered pending until it can be reliably reproduced.

(3)   Contractor may opt for scheduled 3-way communication with HQ and local store to help reproduce, diagnose or resolve the issue.

(4)   Depending on the nature of the issue, a documentation or software update may be released.  Issues determined to be local networking or environmental issues at a particular location, or to be caused by non-managed hardware or services or are L1 issues may incur additional support fees.

c) L3 Issues – are issues that completely prevent store locations from operating, such as a Local Cloud failure, or a TPINTERNAL LAN network failure. Partial degradation of functionality in the store, reporting issues and API issues are considered Level 2 issues. For the avoidance of doubt, ISP Network and router issues, and payment network issues and other third-party equipment or services are to be handled with the supplier of those services and are outside the scope of Contractor’s responsibility.  

(1)   L3 Resolution Steps: stores will first reach out to Customer SAAS Manager or other Customer support liaison who will help the store execute the then-current Local Cloud and LAN network reboot procedures.

(2)   If reboot procedure does not resolve issue, the SAAS Manager will open a ticket to either

(a)   promote a Local Cloud Standby unit to Primary,

(b)  process an order for replacement equipment, or

(c)   initiate further investigation.

3) Hardware Purchase and Replacement – Please submit hardware replacement requests to  

a) Promoting a Local Cloud Standby unit to Primary requires an engineer and is generally available during business hours M-F 8AM – 5PM Pacific.

b) Standard Hardware Shipping – Hardware is typically shipped within 2-3 business days, subject to inventory availability

c) Expedited Hardware – same day and next day shipping may be available by contacting

4) Store Launch – Customer agrees that stores will validate the launch checklist 3 business days before launch date.  This includes validating Internet and WiFi connectivity, accuracy of menus and taxes, adequate coverage of iPads in all locations, printers, configuration and set up of live payments, and training to ensure staff can competently perform all items on the launch checklist.

Support issues that arise 2 days before and 5 days after launch are considered Launch Support and may incur additional fees. Note that to adequately train personnel and achieve a smooth launch, stores can purchase Cloud Labs to facilitate staff training from any location with an internet connection.  

5) Updates – software updates to TouchpointPRO iOS app and the Local Cloud software are provided periodically and must be adopted for continued use of Services. For every 25 stores, Customers may designate one “canary” locations to receive release prior to general release to all stores.   In addition, Contractor may perform maintenance on the Services from time to time, which may result in service interruptions, delays, errors or bugs. Contractor will not be liable for any such interruptions, delays, errors or bugs. Contractor may contact Customer in order to assist with the Services and obtain information needed to identify and fix any errors.

6) Customer’s Obligations in Installation and Usage.

a) Adequate training Customer acknowledges responsibility to adequately train Authorized Users on the documented and best practices use of the system, and to re-train non-conforming behavior. Customer deployments without sufficient training, or any having any abnormal conditions that result in ongoing elevated support loads to Contractor agree to  decrease support tickets or pay additional fees.

b) Customer Installation requirements for support eligibility

(1)   Installation. Customer is responsible for the installation of Hardware and purchasing all recommended equipment, including iPads, cash drawers, and payment terminals necessary to operate the Subscription Service. Contractor pre-configures some components and may provide installation support in accordance with the schedule set forth in the applicable Order for an additional Fee as detailed in the applicable Order, or in Exhibit A(Fees) if not detailed in the Order. All equipment is to be installed and wired into the exact ports specified in the installation documents.  Support issues discovered to include misconfigured equipment may result in additional support fees including network evaluation fees.

(2)   Internet and Third-Party API. For purposes of accessing the Subscription Services, Customer must have a suitable ISP router with available Ethernet port, business class Internet access at a sustained minimum of 1.5 Mbps and supply an internal IP address to the Local Cloud of 192.168.x.x. No intermediate network devices other than the ISP router may be upstream from Local Cloud, and no inbound or outbound ports may be blocked by a firewall.  Where third party APIs are used, Customer will enter and maintain paid API credentials, such as API credentials for Google Maps. Support issues discovered to be a result of deviations from these requirements may result in additional support fees.

(3)   Exclusive Private LAN. Customer acknowledges that the Local Cloud hosts a wired and wireless private network (LAN) with the address range of 10.0.X.X, and may include 4G failover, that is for the exclusive use of licensed iPads running Contractor Software, authorized printers and payment terminals, and management of the Contractor Local Cloud. Any other equipment accessing the private network must be agreed in writing.

Customer shall prevent unauthorized equipment, including switches, cameras, IoT devices, CallerID equipment, guest or staff phones, iPads or devices using music or streaming services from connecting to the private network. Password access to this network shall be kept secret and physical access shall be restricted.  Discovery by Contractor of non-authorized devices on Private LAN network may void support and uptime agreements, and result in additional support fees including network evaluation fees of $250 per incident.   The exclusive Private LAN must stay private to Touchpoint equipment only.  

(4)   Electrical supply with Battery Backup. Customer acknowledges that Local Cloud and all networking equipment supplied by Contractor must be powered by Uninterruptible Power Supply (UPS) with functioning battery backup power to be eligible for certain support and warranty services.  Customer shall supply all required electrical outlets, adequate power, battery back-up (Uninterruptable Power Supply - UPS) and suitable space with a controlled environment to allow for installation and operation of the Hardware. Customer shall supply and install all conduits necessary for the installation and operation of the equipment, if any.

7) Limitations and Obligations.

a) Customer understands that EMV (“Chip and Dip” or “Tap”) transactions performed with the Services must be online and cannot be buffered while offline.

b) Customer acknowledges that online and mobile orders require the store’s Local Cloud to be online and are provided on a best-effort basis.

c) Customer acknowledges that remote web admin access requires Local Cloud to be online.

d) Customer acknowledges that any degradation or interruption of Services due to its own ISP, in-store network, power or Wi-Fi connectivity is solely Customer’s responsibility.

e) Customer acknowledges that cellular failover technologies will result in internet downtime during the failover/failback periods.

f)   Customer acknowledges responsibility to validate adequate cellular connectivity in the installed store location, and understands that cellular outage is a common limitation of such services and adequate connectivity is not guaranteed.

g) Customer acknowledges standby Local Cloud can only be switched to primary if it is properly installed, powered on, and currently accessible via Internet connection.  

h) Customer acknowledges that onsite Hardware is covered separately by warranty. Customer must provide reasonable care for Local Cloud including sufficient ventilation and no temperature extremes.

i)   Customer agrees to deploy with a suitable uninterruptible battery back-up (UPS) for Local Cloud and an adequate number of Wi-Fi access points in appropriate locations for desired coverage; and to secure adequate redundancy or alternate Internet access methods according to its business needs.

8) Third-Party, API and Online Service Levels. Customer understands that certain services shall be contracted through third-party service providers, including payment gateway, payment processing, accounting, cellular, mapping, routing, SMS, email and push services (“Third-Party Services”). Third-Party Services, including the capabilities required to take online orders, process payment cards or acquire accounting data, may not be available from time to time. Customer understands that Third-Party Services are made available on a best-effort basis, solely according to the service level agreement of the third-party service provider and that degradation or failure of Third-Party Services may prevent the Subscription Service from operating, including the ability to process payment cards. Such failover and Third-Party Services contracted with and used by Customer are not governed by this agreement. In using Third-Party Services, Customer will be responsible for reviewing and understanding the service level agreement for these services. Customer agrees that Contractor is not responsible for the uptime, performance, reliability, accessibility, utility, operation or accuracy of any Third-Party Services contracted for by Customer and not any third-party services provided by Contractor in connection with the Subscription Service. Contractor expressly disclaims any liability for these Third-Party Services; except that Contractor shall be responsible for maintaining on a commercially reasonable basis any integration with these Third-Party Services provided by Contractor as part of the Subscription Service.