LAST MODIFIED: November 16, 2023
These Terms and Conditions (these “Terms”) shall govern each Order executed by Tailos, Inc., a Delaware corporation having its principal place of business at 3709 Promontory Point Drive Suite B214, Austin, TX 78744 (“TAILOS”) and the customer (or Authorized Entity (as defined in the applicable Order) of a TAILOS customer) set forth in such Order (“Customer”). TAILOS and Customer are each referred to herein as a “Party” and collectively as the “Parties.” The Parties acknowledge and agree that they have read and understand these Terms and, upon execution of the applicable Order, are legally bound to these Terms, together with the applicable Order, schedules, exhibits, or other attachments expressly referenced in these Terms or the applicable Order (collectively, this “Agreement”). TAILOS reserves the right to modify these Terms and will provide notice of these changes as described below.
1. Certain Definitions
“Applicable Laws” means all existing and future federal, state or local law, regulation, ordinance, directive, court order or other guidelines, and policies with the force of law, of or by any government, or any governmental authority, department, or agency thereof, or any court of competent jurisdiction that are applicable to the Parties in their performance of their obligations or exercise of their rights under this Agreement.
“Authorized Users” means employees or contractors of Customer who Customer permits to access and use the TAILOS Solution subject to the terms of this Agreement.
“Customer Data” means any data, other than Usage Data and Process Data, that Customer and Authorized Users provide, post, upload, publish, transmit or distribute on or through the TAILOS Platform.
“Delivery Location” means the shipping address for a Unit set forth on the Order.
“Deployment Date” means, with respect to each Property listed in an Order requesting the TAILOS Solution, the date on which TAILOS has activated the first TAILOS Smart Robot at such Property as mutually agreed upon by the Parties.
“Documentation” means any user manuals, reference guides, specifications, documentation, instruction materials and similar recorded data and information, whether in electronic or physical output form, that TAILOS makes available to, provides access to or provides to Customer or that TAILOS makes publicly available, which may describe how any part of the TAILOS Solution is to be operated by users, including those set forth at support.tailos.com.
“Effective Date” means the date on which the Parties have mutually executed an Order.
“Fees” means the amounts payable by Customer to TAILOS pursuant to this Agreement (including the applicable Order).
“Initial Term” means the “Initial Term” set forth on an Order.
“Leased Units” means Units designated as leased in an Order.
“Process Data” means any data and other information, excluding Customer Data and Usage Data, created or resulting from the processing of Customer Data through the algorithms or neural networks within the TAILOS Solution.
“Property” means a physical lodging, hotel, commercial real estate, apartment building, facility or other property managed, operated, owned or otherwise controlled by Customer and set forth on an applicable Order. “Properties” means the plural of Property.
“Purchased Units” means Units designated as purchased in an Order.
“Renewal Term” means a renewal of the Subscription Term for the duration set forth on an Order.
“Subscription Term” means the subscription term set forth in the Order.
“TAILOS Platform” means TAILOS’ proprietary, hosted web-based dashboard in the version made available to Customer in connection with TAILOS Smart Robots pursuant to an Order.
“TAILOS Services” means any services related to the TAILOS Smart Robot which are expressly set forth in the applicable Order, which may include provision of access to the TAILOS Platform and support services and extended warranties for the TAILOS Smart Robot.
“TAILOS Smart Robot” means TAILOS’ proprietary, robotic automated vacuum cleaning system sold or leased to Customer pursuant to an Order, and any other hardware provided to Customer by TAILOS, as more fully described in one or more Orders executed by TAILOS and Customer, including replacement parts, accessories, and any other equipment of whatever nature which may now or from time to time be incorporated or installed in or attached to any Unit. Except as otherwise set forth herein, if a Unit is substituted under the terms of this Agreement, the replaced Unit will cease to be a TAILOS Smart Robot under this Agreement.
“TAILOS Software” means the TAILOS and third-party software and firmware embedded or installed in the TAILOS Smart Robots.
“TAILOS Solution” means, collectively, TAILOS Smart Robots, the Documentation, the TAILOS Software, the TAILOS Platform, and the TAILOS Services.
“Unit” means an individual TAILOS Smart Robot ordered by Customer (whether for purchase or lease).
“Usage Data” means data and other information arising from Customer’s use of the TAILOS Solution, excluding Customer Data and Process Data.
2. Orders
2.1 Acceptance of Orders. Orders must be signed by an authorized TAILOS employee. Each Order will be governed exclusively by this Agreement and any additional or different terms proposed by Customer are automatically rejected unless expressly agreed upon in writing by TAILOS and Customer.
2.2 Cancellations / Changes of Orders. Any change to or cancellation of an Order is subject to TAILOS’ written acceptance and any applicable agreed-upon change or cancellation charges.
3. TAILOS Software; TAILOS Platform.
3.1 TAILOS Software. During the Subscription Term and conditioned upon Customer’s payment of all Fees and compliance with all other terms and conditions of this Agreement, TAILOS hereby grants to Customer a limited, non-exclusive, non-transferable (except as expressly permitted in this Section 3.1 and Section 17.1) license, without the right to sublicense, to: (a) access and use the TAILOS Software solely for Customer’s internal use by Authorized Users; and (b) use the Documentation solely for Customer’s internal use in connection with Customer’s use of the TAILOS Software. The foregoing license is transferable solely to the purchasers of Purchased Units resold by Customer to the extent necessary to enable use of such Purchased Units by such buyer, pursuant to the terms and conditions of this Agreement. TAILOS will deliver the TAILOS Software (and updates thereto) electronically via over-the-air downloads to the TAILOS Smart Robots; provided that Customer will be responsible for providing secure Internet access to facilitate such delivery. For the avoidance of doubt, Customer hereby acknowledges that the TAILOS Smart Robot is separate from the TAILOS Platform and all other parts of the TAILOS Solution.
3.2 TAILOS Platform. During the Subscription Term conditioned upon Customer’s payment of all Fees and compliance with all other terms and conditions of this Agreement, TAILOS hereby grants to Customer a limited, non-exclusive, non-transferable (except as expressly permitted in this Section 3.2 and Section 17.1) right, without the right to sublicense, to: (a) access and use the TAILOS Platform solely for Customer’s internal use by Authorized Users; and (b) use the Documentation solely for Customer’s internal use in connection with Customer’s use of the TAILOS Platform. The foregoing grant of rights is transferable solely to the purchasers of Purchased Units resold by Customer to the extent necessary to enable use of such Purchased Units by such buyer, pursuant to the terms and conditions of this Agreement. Customer is solely responsible for the acts and omissions of any and all persons accessing and using the TAILOS Platform using any of its Authorized Users’ user names and passwords. Customer shall ensure that all Authorized Users have received all training deemed necessary by TAILOS regarding use of the TAILOS Platform. Customer shall, and shall cause its Authorized Users to, use all reasonable means to secure user names and passwords, and shall promptly notify TAILOS if it suspects that any user name or password has been compromised. Each TAILOS Platform account may only be accessed and used by the specific named Authorized User for whom such account is created. For the avoidance of doubt, Customer hereby acknowledges and agrees that the TAILOS Smart Robot is separate from the TAILOS Software and all other parts of the TAILOS Solution.
3.3 Suspension. TAILOS may suspend Customer’s access to any and all parts of the TAILOS Solution (including the TAILOS Platform and TAILOS Software) without notice and liability for any reason, including if: (a) TAILOS needs to carry out maintenance on the TAILOS Solution or Customer’s use of the TAILOS Solution presents an immediate and genuine threat to the security of the TAILOS Solution or the performance of the TAILOS Solution for other TAILOS customers; (b) an Authorized User is using any TAILOS Software or TAILOS Platform in violation of Section 5.4; or (c) so long as Customer is in breach of Section 7 (each of (a) through (c), a “Service Suspension”). TAILOS shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access following any Service Suspension. In cases of Service Suspensions, TAILOS shall use commercially reasonable efforts to resume providing access as soon as reasonably possible after the event giving rise to the Service Suspension is cured. TAILOS will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User or third party may incur as a result of a Service Suspension, and Customer shall not be entitled to any refunds of any Fees on account of same.
3.4 Third Party Software. To the extent any portions of the TAILOS Software or TAILOS Platform, including open source software, are provided under separate or additional terms and conditions (“Third Party Software”), notwithstanding anything to the contrary in this Agreement, any and all such Third Party Software is made available on an “as is” and “as available” basis without warranty or indemnity of any kind. To the extent there is a conflict between the terms and conditions applicable to such Third Party Software and this Agreement, the Third Party Software’s applicable terms and conditions shall control.
4. TAILOS Smart Robots.
4.1 Purchased Units. TAILOS hereby agrees to sell to Customer, and Customer hereby agrees to purchase from TAILOS, the Purchased Units as set forth in the Order.
4.2 Leased Units. TAILOS hereby agrees to lease to Customer, and Customer hereby agrees to lease from TAILOS, the Leased Units as set forth in the Order. The Parties agree that, if this Agreement is recharacterized under Applicable Laws as a secured financing or a lease intended for security, it shall be deemed a security agreement and this Section 4.2 shall be deemed to grant TAILOS by Customer a lien on and first priority security interest in the Leased Units and all proceeds thereof, to secure the payment of Customer’s obligations under this Agreement. The Parties agree to execute, acknowledge, deliver, file, and record, or cause to be executed, acknowledged, delivered, filed, and recorded such further documents (including UCC financing statements), and to do all such things and acts, necessary to ensure that such security interest would be a perfected first priority security interest under Applicable Laws.
4.3 Shipment. The Units specified on the applicable Order will be delivered to the Delivery Location, DAP (Incoterms 2020), unless otherwise agreed in the Order. Customer will pay all shipping fees and existing or new import duties and tariffs and other trade restraints for shipping in accordance with Section 7.2. Unless otherwise expressly agreed by the Parties in writing, TAILOS will select the shipment method of and carrier for the Units, and all Units will be shipped, transported and delivered to Customer by an independent carrier not affiliated with, or controlled by, TAILOS. Any shipping and delivery dates provided by TAILOS are estimates only. TAILOS may, in its sole discretion, without liability or penalty, make partial shipments or deliveries of Units to Customer.
4.4 Risk of Loss; Damage. For all Purchased Units, title shall transfer to Customer upon delivery to the applicable Property. For all Leased Units, TAILOS has title to the Leased Units at all times, and Customer acquires no ownership, title, property, right, equity or interest in the Leased Units other than its leasehold interest solely as lessee subject to all the terms and conditions of this Agreement. Customer shall bear the entire risk of loss and damage to any and all Leased Units from any cause whatsoever, whether or not insured, during the Subscription Term until the Leased Units are returned to TAILOS in accordance with Section 4.8. No loss or damage shall relieve Customer of the obligation to pay Fees or of any other obligation under this Agreement. Customer shall provide TAILOS with immediate notice if any Unit is damaged or lost. If TAILOS holds or stores any Units at Customer’s request or due to Customer’s inability to accept delivery in accordance with this Agreement and designated Deployment Dates, Customer shall be solely responsible for all costs and expenses of storage of such Units and assumes all risk of loss of such Units, and shall reimburse TAILOS for all reasonable storage expenses incurred by TAILOS in connection with such Units.
4.5 Delivery. Prior to the Deployment Date for each Unit, Customer shall, at its expense, prepare a suitable site at each Property for the deployment of such Units. Customer shall provide sufficient space, foundations, electricity and operating conditions as specified by TAILOS, as well as reasonable access to each Property to allow TAILOS or its designated representative to deploy each Unit. Customer (a) is solely responsible for any permits, approvals, authorizations, variances, and similar rights required to be obtained from governmental authorities or other third parties in connection with the deployment of the Units at the Property; and (b) shall provide a safe and non-threatening environment for TAILOS and its agents to deploy the Units. Customer may not move any Unit from the property where it is deployed without TAILOS’ mutual agreement.
4.6 Acceptance. Deployment of Units shall be conditioned upon TAILOS’ receipt of all Fees due for such Units. Customer will be deemed to have accepted a Unit unless it provides TAILOS, within three (3) business days following the date of delivery of such Units to the Delivery Location, written notice that such Unit does not materially conform to the description in the applicable Order or Documentation (each such Unit, a “Nonconforming Unit”). Such notice will state with specificity all nonconformities and furnish such other written evidence or other documentation as may be reasonably required by TAILOS. All nonconformities not so specified will be deemed waived by Customer, such Unit will be deemed accepted by Customer, and no attempted revocation of acceptance will be effective. If Customer timely notifies TAILOS of any Unit it believes to be a Nonconforming Unit, and TAILOS agrees, in its reasonable discretion, that such Unit is a Nonconforming Unit, TAILOS will, in its sole discretion, either: (a) replace such Nonconforming Unit with a conforming Unit; or (b) repair such Nonconforming Unit. If TAILOS exercises its option to replace or repair Nonconforming Units, TAILOS will do so at its own cost, including shipping the replacement or repaired Units to the Delivery Location at TAILOS’ expense and risk of loss. THE REMEDIES SET FORTH IN THIS SECTION 4.6 ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR THE DELIVERY OF NONCONFORMING UNITS.
4.7 Inspections; Returns. Without limiting any of TAILOS’ rights or obligations under this Agreement, TAILOS may from time to time during Customer’s normal business hours, inspect the Units and Customer’s records with respect thereto. Customer shall cooperate with TAILOS in scheduling such inspection and in making the Units available for inspection by TAILOS or its designee as reasonably specified by Customer. TAILOS’ written approval shall be required prior to any return of Units by Customer to TAILOS, whether for return, inspection, repair, replacement or any other reason. All returns must be in new or like new condition with complete identification in accordance with TAILOS’ instructions or TAILOS may refuse such return. Where written authorization has been obtained to return products for reasons beyond warranty, Customer shall be responsible for the payment for any applicable additional transportation and restocking charges.
4.8 Condition of Leased Units Upon Return. At the expiration or termination of the Subscription Term, Customer shall promptly, at its own cost and expense: (a) perform any testing and repairs required to place each Leased Unit in the same condition and appearance as when received by Customer (reasonable wear and tear excepted) and in good working order for its originally intended purpose and eligible for manufacturer’s maintenance (if available), free of all Customer’s markings and free of all liens and encumbrances of any kind; (b) if disablement, disassembly or crating is required, cause such Leased Units to be disabled, disassembled and crated by an authorized manufacturer’s representative or such other service person as is reasonably satisfactory to TAILOS; and (c) return such Leased Units in the condition and in the manner specified herein (collectively, the “Return Condition”). The Leased Units, as returned, will include related maintenance logs, operating manuals, and other related materials. If TAILOS determines that any Leased Units do not conform to the Return Condition, TAILOS will promptly notify Customer of such determination specifying the repairs or refurbishments needed to place the Leased Units in the Return Condition. TAILOS may, at its option, either (i) require Customer to effect such repairs by use of a TAILOS-trained repair professional or (ii) itself effect such repairs. In either case, all costs associated with any repairs and inspections will be paid by Customer. Until Customer has returned the Leased Units in compliance with the requirements of this Agreement, this Agreement shall continue in full force and effect and Customer shall continue to pay Fees notwithstanding any expiration or termination of the Subscription Term through and including the date on which the Leased Units are accepted for return by TAILOS as conforming with the Return Condition.
5. Customer Responsibilities.
5.1 Customer Responsibilities. Customer is responsible and liable for all uses of the TAILOS Solution resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the TAILOS Solution, and will cause Authorized Users to comply with such provisions. Customer shall ensure that all necessary Wi-Fi and Internet connectivity services necessary to provide and use the TAILOS Solution are available throughout the Subscription Term, and acknowledges and agrees that TAILOS shall have no obligation or liability to Customer related to any outage, inability to use, errors or other issues relating to such Wi-Fi and Internet connectivity services. Customer agrees to provide reasonable cooperation to TAILOS to help prevent the unauthorized use of or access to the TAILOS Solution, and to promptly notify TAILOS in writing of any unauthorized use or access of which Customer becomes aware.
5.2 Required Updates. Customer shall permit TAILOS, at TAILOS’ expense, to install alterations, modifications, additions, and upgrades to any Unit that is required to render it in compliance with Applicable Laws, or as otherwise necessary in TAILOS’ reasonable judgment for safety or operational purposes, or as otherwise contemplated in this Agreement. Customer acknowledges that TAILOS may offer additional alterations, modifications, additions, and upgrades to Customer for additional Fees.
5.3 Safety. Customer acknowledges that misuse or mishandling of any part of the TAILOS Solution may result in physical harm and property damage. Customer accepts and assumes responsibility and related costs and expenses for appropriate handling, storage, testing and evaluation of the Units, including the adherence to all Applicable Laws and regulations and industry standards and practice.
5.4 Restrictions. Customer shall not use any part of the TAILOS Solution for any purpose except as expressly permitted in this Agreement and as specified in the Documentation. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Customer will not at any time, directly or indirectly, or permit its Authorized Users to, in whole or in part: (a) use or access the TAILOS Solution except as permitted hereunder; (b) use or grant access to the TAILOS Solution as a service bureau or otherwise for the benefit of a third party; (c) rent, lease, loan or otherwise in any manner provide or distribute the TAILOS Solution or any copy thereof to any third party; (d) misappropriate any data or information from the TAILOS Solution; (e) disrupt the functioning of the TAILOS Solution; (f) otherwise act in a manner that interferes with TAILOS’ operation of the TAILOS Solution; (g) gain unauthorized access to the TAILOS Solution; (h) modify, decompile, reverse engineer, disassemble, remove, alter, circumvent, or otherwise tamper with the TAILOS Solution or any security technology, software, or rights management information contained within or accessible by or through the TAILOS Solution or in any software used to enable the TAILOS Solution; (i) modify or remove any copyright, trademark or other proprietary rights notice on any software or other materials contained within or comprising the TAILOS Solution (or any Unit for as long as it is used in connection with the rest of the TAILOS Solution); (j) access or use the TAILOS Solution to submit or transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature or to send commercial solicitation or spam (whether commercial in nature or not); (k) exploit the TAILOS Solution in any unauthorized way whatsoever, including by trespass or burdening server or network capacity or TAILOS Solution infrastructure (including transmitting files containing viruses, corrupted files, spyware, adware, or any other software or programs, or deploying “spiders,” “web-bots,” “screen-scrapers,” or “web crawlers” that may damage or adversely affect server or network capacity or software infrastructure); (l) alter or remove any usage instructions or safety warnings on any Unit; (m) install any software of any kind on any Unit that would interfere with operation of the TAILOS Solution; (n) place or use the Unit outside of its permissible operating parameters; (o) access or use the TAILOS Solution for purposes of competitive analysis, the development, provision, or use of a competing software service or product or any other purpose that is to TAILOS’ detriment or commercial disadvantage; (p) access or use the TAILOS Solution in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the TAILOS Solution could lead to personal injury or severe physical or property damage; (q) access or use the TAILOS Solution in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, or that violates any Applicable Laws; (r); use the TAILOS Solution to harm or intimidate any person or animal, as a weapon, or to enable any weapon; (s) use the TAILOS Solution for any illegal or ultra-hazardous purpose; (t) use the TAILOS Solution in any home or other consumer environment; (u) use the TAILOS Solution in any chemical, biohazard, irradiated or other environment that would contaminate a Unit in a way that is not fully remediable through washing with water and mild soap, or prevent TAILOS from servicing a Unit or create a health risk in doing so; or (v) attempt, or encourage or assist any third party to attempt, any of the foregoing.
6. Support. During the Subscription Term, TAILOS will provide periodic reports relating to use, setup, configuration, and easily resolvable issues relating to the TAILOS Solution, and Customer will receive text, phone, and email support relating thereto.
7. Fees; Payment.
7.1 Fees. TAILOS shall invoice Customer and Customer shall pay the Fees set forth in each Order in accordance with the payment terms set forth therein. All Fees are non-refundable unless otherwise expressly set forth in this Agreement. Unless otherwise set forth in the Order, Customer shall pay all Fees within thirty (30) days of the date of the applicable invoice from TAILOS. Overdue payments will be subject to interest at the rate of one and one-half percent (1.5%) per month, or the maximum allowable under Applicable Laws, whichever is less, and Customer will indemnify and hold TAILOS harmless from and against any costs incurred in connection with its collection of any Fees or interest properly due hereunder.
7.2 Shipping Charges and Taxes. Customer shall pay for, and shall hold TAILOS harmless from, all shipping charges and insurance costs to and from the Delivery Locations and Properties. In addition, Customer shall be responsible for the payment of any and all local, state, federal, or foreign taxes, levies, and duties of any nature, including value-added, sales, use, and withholding taxes (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on TAILOS’ net income. If TAILOS has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 7.2, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides TAILOS with a valid tax exemption certificate authorized by the appropriate taxing authority.
8. Ownership and Data Rights.
8.1 Ownership. As between TAILOS and Customer: (a) Customer owns all right, title and interest in and to any and all of its Customer Data; and (b) TAILOS owns all right, title and interest in and to the TAILOS Solution, Process Data and Usage Data, including all intellectual property and other proprietary rights therein and thereto.
8.2 Usage Data; Process Data. Notwithstanding anything to the contrary in this Agreement, TAILOS may: (a) monitor Customer’s use of the TAILOS Solution and collect and compile Usage Data; and (b) process Customer Data through the TAILOS Solution and create Process Data. Customer agrees that TAILOS may disclose and otherwise use Usage Data and Process Data as permitted under Applicable Laws in aggregated and anonymized form, for any internal business purpose, including to operate, analyze, improve, and market the TAILOS Solution and TAILOS’ other products and services, as well as to disclose to its third party contractors and service providers for use on behalf of TAILOS is connection with its products and services.
8.3 Customer License. Customer hereby grants to TAILOS a non-exclusive, royalty-free, worldwide license to reproduce, distribute and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for TAILOS to provide the TAILOS Solution to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify and otherwise use and display Customer Data incorporated within the Usage Data. Additionally, upon Customer’s written approval, Customer agrees that TAILOS’ license to the Customer Data will include TAILOS’ right to use the Customer Data for its own business purposes, and to sublicense its rights to such Customer Data to TAILOS’ affiliates and business partners for their own business purposes.
8.4 Reservation of Rights. TAILOS reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the TAILOS Solution.
9. Subscription Term and Termination.
9.1 Effective Date and Subscription Term. Unless earlier terminated in accordance with this Section 9, this Agreement shall be effective as of the Effective Date and shall continue through the Subscription Term.
9.2 Termination for Cause. TAILOS may terminate this Agreement, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder or breaches any of its obligations hereunder. Customer may terminate this Agreement, effective on written notice to TAILOS, following the rendering of a final award by an arbitrator in Customer’s favor in accordance with Section 17.4 that arises out of TAILOS’ uncured material breach of this Agreement.
9.3 Effect of Termination. Upon expiration or termination of the Subscription Term, (a) Customer shall return all Leased Units in the Return Condition as set forth in Section 4.6; (b) all rights, licenses, consents, and authorizations granted by TAILOS to Customer with respect to the TAILOS Solution will immediately terminate; (c) Customer shall immediately cease all use of the TAILOS Solution; (d) TAILOS may disable all Customer and Authorized User access to the TAILOS Solution; (e) all Fees payable up until the expiration or termination of the Subscription Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously-accrued but not yet paid Fees, on receipt of invoice from TAILOS. This Section 9.3 and Sections 1, 5, 8, 10 (for three (3) years after termination or expiration of this Agreement or, with respect to trade secrets, until such trade secrets are no longer protected as such under Applicable Laws), 11, 12, 13, 14 (solely with respect to claims arising during the Subscription Term), 15, 16 and 17, and any other provisions of the Agreement which should, by their nature, survive the expiration or termination of this Agreement will survive the expiration or termination of this Agreement. After termination of this Agreement, each Receiving Party shall return to the Disclosing Party, or destroy, at the Receiving Party’s expense, all Confidential Information and materials containing Confidential Information of the Disclosing Party and deliver to such Disclosing Party a written certification signed by a duly authorized representative of the Receiving Party that the Confidential Information and all copies thereof have been returned or destroyed, and their use has been discontinued; provided, however, that neither the Receiving Party nor any of its representatives shall be obligated to return or destroy Confidential Information of the Disclosing Party to the extent such Confidential Information has been electronically archived by such Receiving Party in accordance with its automated security or disaster recovery procedures as in effect from time to time. Nothing contained herein shall limit any other remedies that either Party may have for the default of the other Party under this Agreement nor relieve either Party of any of its obligations incurred prior to such termination. Within thirty (30) days of any termination, TAILOS will make Customer Data from the TAILOS Platform available to Customer upon reasonable request. Any notice of termination under this Agreement automatically operates as a cancellation of any deliveries of Units and all other components of the TAILOS Solution scheduled to be made subsequent to the effective date of termination, whether or not orders for such Units or other components of the TAILOS Solution had been accepted by TAILOS. With respect to any Unit or other component of the TAILOS Solution that is still in transit upon termination of this Agreement, TAILOS may require, in its sole discretion, that all sales and deliveries of thereof be made on either a cash-only or certified-check basis.
10. Confidentiality.
10.1 Confidential Information; Nonuse and Nondisclosure. Each Party (as “Receiving Party”), agrees to retain in confidence the non-public information and know-how disclosed to it by the other Party (as “Disclosing Party”), pursuant to this Agreement which is designated in writing as proprietary or confidential if disclosed in writing, designated in writing (which may be via email) as proprietary or confidential within thirty (30) days of oral disclosure if disclosed orally, or should reasonably be understood to be proprietary or confidential by the Receiving Party (the “Confidential Information”). Notwithstanding any failure to so designate them, TAILOS’ Confidential Information includes the TAILOS Software, the TAILOS Platform, the Documentation and the Agreement. Each Receiving Party agrees to: (a) preserve and protect the confidentiality of the Confidential Information; (b) refrain from using the Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees, officers, affiliates, controlling stockholders, agents, advisors, subcontractors and other representatives as is reasonably required in connection with the exercise of its rights and obligations under this Agreement and only subject to binding use and disclosure restrictions at least as protective as those set forth herein. Each Receiving Party agrees to immediately notify the Disclosing Party of any unauthorized disclosure or use of any Confidential Information and to assist the Disclosing Party in remedying such unauthorized use or disclosure by taking steps as reasonably requested by the Disclosing Party. Notwithstanding the foregoing, Confidential Information shall not include information which is: (i) already publicly known by the Receiving Party without breach of this Agreement; (ii) discovered, created or independently developed by the Receiving Party without use of, or reference to, the Confidential Information, as shown in records of the Receiving Party; (iii) otherwise known to the Receiving Party through no wrongful conduct of the Receiving Party, or (iv) required to be disclosed by law or court order; provided that the Receiving Party shall provide prompt notice thereof and commercially reasonable assistance to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, each Receiving Party hereto may disclose Confidential Information received from the Disclosing Party hereunder to the Receiving Party’s agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the Parties hereto.
10.2 Remedy. Each Receiving Party agrees and acknowledges that any breach or threatened breach of this Section 10 may cause irreparable injury to the Disclosing Party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the Disclosing Party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the Receiving Party, without the necessity of proving actual damages or posting any bond, in addition to any other rights or remedies provided by law.
11. Privacy and Security.
Customer agrees that by using the TAILOS Solution, Customer agrees to TAILOS’ collection of Customer Data through the TAILOS Solution and use, transfer, processing and disclosure of Customer Data for its own business purposes. Customer understands that TAILOS cannot guarantee that unauthorized third parties will never be able to defeat its security measures or use Customer Data for improper purposes. TAILOS shall maintain and enforce reasonable and appropriate physical, technical, policy and administrative safeguards, precautions and measures where Customer Data is, or can be, accessed, stored or transmitted, to protect the Customer Data from loss, misuse, alteration, corruption, unauthorized access, or unauthorized acquisition whether at rest or in-transit. Such safeguards, precautions and measures shall include a comprehensive information security program that provides for all appropriate physical, technical, policy and administrative measures and security procedures that are designed (i) to safeguard and ensure the security of the Customer Data; and (ii) to protect the Customer Data from destruction, loss and unauthorized access, disclosure, use or alteration (whether or not encrypted).
12. Suggestions and Improvements.
Customer may choose to or TAILOS may invite Customer to submit comments or ideas about TAILOS’ products and services, including the TAILOS Solution (“Feedback”). By submitting any Feedback, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place TAILOS under any fiduciary or other obligation, and that TAILOS is free to use the Feedback without any additional compensation to Customer or anyone else, or to disclose the Feedback on a non-confidential basis or otherwise to anyone. Customer further acknowledges that, by acceptance of Customer’s submission, TAILOS does not waive any rights to use similar or related ideas previously known to TAILOS, developed by its employees, or obtained from sources other than Customer.
13. Representations and Warranties.
13.1 Mutual Representations and Warranties. Each Party hereby represents and warrants to the other that: (a) it legally exists under the laws of the jurisdiction of its organization; and (b) it has power and authority to perform its obligations under this Agreement.
13.2 Customer Representations and Warranties. Customer hereby represents and warrants that: (a) its use of the TAILOS Solution will comply with all Applicable Laws; (b) it has all necessary rights, licenses and consents, and has provided all necessary notices required by Applicable Laws to submit, transmit, and provide, and for TAILOS to receive, access or use Customer Data and any other content, data, or information it provides, receives, accesses or uses through or in connection with the TAILOS Solution; (c) it will install in a timely manner all TAILOS Solution updates provided by TAILOS; (d) it is either the owner of the Delivery Location or has the authority to give TAILOS and its agents access to the Delivery Location; and (e) TAILOS’ deployment of the Units and operation of the TAILOS Solution for Customer as contemplated by this Agreement will not result in (i) any violation of Applicable Laws or infringement or misappropriation of any rights of any third party, including any intellectual property right or privacy right, (ii) any liability from TAILOS to any third party, or (iii) the payment by TAILOS of any fees to any third party.
13.3 Limited Warranty. TAILOS hereby represents and warrants to Customer that each Unit (excluding TAILOS Software installed therein) leased or purchased from TAILOS will be free from defects in materials and workmanship under normal use (“Defects”, with “Defective” having a correlative meaning) (i) with respect to Purchased Units, for twelve (12) months immediately after delivery to Customer, or (ii) with respect to Leased Units, for the Subscription Term (each such period, as applicable, a “Warranty Period”, and such warranty, the “Limited Warranty”). Any replacement Units will be warranted for the remainder of the original Warranty Period.
13.3.1 Warranty Limitations. The Limited Warranty does not apply to (a) any Unit that has been (i) subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper deployment, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by TAILOS; (ii) serviced, reconstructed, repaired or altered by persons other than TAILOS or its authorized representatives; or (iii) used with any third-party hardware or product that has not been previously approved in writing by TAILOS; (b) cosmetic damage such as scratches and dents; or (c) damage or defects caused by (A) use with non-TAILOS products; (B) accident, abuse, misuse, mishandling, flood, fire, earthquake or other external causes; or (C) operating the Units with improper power supply.
13.3.2 Customer’s Exclusive Remedy for Defective Units. This Section 13.3.2 contains Customer’s exclusive remedy for defective Units. During the Warranty Period, with respect to any Units that are allegedly Defective: (a) Customer shall notify TAILOS, in writing, of any alleged claim or defect within five (5) business days from the date Customer discovers, or upon reasonable inspection should have discovered, such alleged claim or defect (but in any event before the expiration of the applicable Warranty Period); (b) Customer shall ship, at TAILOS’ expense and risk of loss, such allegedly defective Units to TAILOS’ designated facility; (c) if TAILOS’ inspection and testing reveals, to TAILOS’ reasonable satisfaction, that such Units are defective and any such defect has not been caused or contributed to by any of the factors described under Section 13.3.1 above, TAILOS shall, at its expense, repair or replace such defective Units; and (d) TAILOS shall ship to Customer, at TAILOS’ expense and risk of loss, the repaired or replaced Units to the Delivery Location designated by Customer. Customer has no right to return for repair, replacement, credit or refund any Unit except as expressly set forth in this Agreement. In no event shall Customer reconstruct, repair, alter or replace any Unit, in whole or in part, either itself or by or through any third party. THIS SECTION 13.3.2 SETS FORTH CUSTOMER’S SOLE REMEDY AND TAILOS’ ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 13.3.
13.4 Disclaimers.
13.4.1 General Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS AGREEMENT: (A) NEITHER TAILOS NOR ANY PERSON ON TAILOS’ BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE AND FITNESS FOR A PARTICULAR PURPOSE; (B) ALL PARTS OF THE TAILOS SOLUTION IS PROVIDED “AS IS” AND “AS AVAILABLE” AND TAILOS AND ITS LICENSORS MAKE NO OTHER WARRANTY AS TO ANY PART OF THE TAILOS SOLUTION; AND (C) CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY TAILOS, OR ANY OTHER PERSON ON TAILOS’ BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTIONS 13.2 AND 13.3 OF THIS AGREEMENT.
13.4.2 Results of Use. THE PARTIES ACKNOWLEDGE AND AGREE THAT THERE ARE CERTAIN RISKS INHERENT TO THEIR ENGAGEMENT HEREUNDER, AND THAT CUSTOMER’S USE OF THE TAILOS SOLUTION MAY NOT RESULT IN ANY SPECIFIED RESULT. THE PARTIES ACKNOWLEDGE AND AGREE THAT INFORMATION PROVIDED VIA THE TAILOS SOLUTION IS INTENDED TO BE INFORMATIVE AND SHOULD NOT BE CONSTRUED AS ADVICE. ACCORDINGLY, TAILOS HEREBY DISCLAIMS, AND CUSTOMER HEREBY EXPRESSLY RELIEVES TAILOS FROM, ANY CLAIMS, DAMAGES, COSTS, OR LIABILITIES THAT MAY ARISE FROM OR RELATE TO ANY ACTS OR OMISSIONS MADE BY CUSTOMER BASED IN WHOLE OR IN PART BASED ON ANY INFORMATION PROVIDED VIA THE TAILOS SOLUTION. FOR AVOIDANCE OF DOUBT, CUSTOMER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY TAILOS SOLUTION, IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF DIAGNOSIS OF VIRUS, TRACKING OF VIRUS TRANSMISSION, OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY TAILOS, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE TAILOS SOLUTION.
14. Indemnification.
14.1 Customer Indemnity. Subject to the terms and conditions of this Agreement, Customer (as “Indemnifying Party”) shall indemnify, defend and hold harmless TAILOS and its officers, directors, employees, agents, successors and assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party (collectively, “Losses”), arising out or resulting from any third-party claim alleging: (a) a breach of any representation, warranty, or obligation under this Agreement (including Section 5.4, 13.1 or 13.2) by Indemnifying Party; (b) any grossly negligent or more culpable act or omission of Indemnifying Party or its personnel (including any recklessness or willful misconduct) in connection with the performance of this Agreement; (c) any bodily injury, death of any person or damage to real or tangible personal property caused by the negligent acts or omissions of Indemnifying Party or its personnel; (d) use of and access to the TAILOS Solution in a manner inconsistent with this Agreement and Documentation; or (e) breach of Section 5.4; or (f) any failure by Indemnifying Party or its personnel to comply with any Applicable Laws. Notwithstanding anything to the contrary in this Agreement, this Section 14.1 does not apply to any claim (whether direct or indirect) for which a sole or exclusive remedy is provided for under another section of this Agreement.
14.2 TAILOS Indemnity. TAILOS (as Indemnifying Party) shall defend, indemnify, and hold harmless Customer (as Indemnified Party) against all Losses arising out or resulting from any third-party claim that the TAILOS Solution infringes any U.S. patent, copyright or trademark or misappropriate any trade secret of such third party, and will pay such damages or costs as are finally awarded against Customer by a court (or mediator or arbitrator, if applicable) of competent jurisdiction or are agreed to in a settlement.
14.3 TAILOS Options. Should the any part of the TAILOS Solution become, or in the opinion of TAILOS be likely to become, the subject of such an infringement claim indemnifiable under Section 14.2 (such part, the “Allegedly Infringing Material”), TAILOS may, at its option: (a) procure for Customer the right to use the Allegedly Infringing Material at no cost to Customer; (b) replace or modify, in whole or in part, Allegedly Infringing Material to make it non-infringing; or (c) if neither (a) nor (b) are, in TAILOS’ sole discretion, commercially practicable, accept return of the Allegedly Infringing Material, or remove the Allegedly Infringing Material from the TAILOS Solution, and refund the Fees paid for such Allegedly Infringing Material by Customer on a pro-rated basis over the then-current Subscription Term.
14.4 Exclusions from TAILOS Indemnity. Notwithstanding anything to the contrary, TAILOS assumes no liability hereunder for: (a) any method or process in which the TAILOS Solution may be used; (b) any use of the TAILOS Solution in an unsafe or dangerous manner by or on behalf of Customer, or otherwise in a manner not in accordance with this Agreement or the Documentation; (c) any compliance with Customer’s specifications; (d) Customer’s failure to install updates to the TAILOS Solution provided pursuant to this Agreement or otherwise made generally available by TAILOS to its customers at no additional cost; (e) any modifications or changes made to the Units by or on behalf of any person other than TAILOS or its representatives, if the infringement would have been avoided without such modification or change; or (f) the combination, operation or use of the TAILOS Solution with any products, materials or equipment supplied to Customer by a person other than TAILOS or its authorized representatives, if the infringement would have been avoided by the use of the TAILOS Solution not so combined, and Customer shall indemnify and hold harmless TAILOS and its officers, directors, employees, agents, successors and assigns against any damages, losses, and expenses (including reasonable attorneys’ fees) arising from any third-party action to the extent based upon a claim of any kind based on any of the foregoing factors in (a) through (f) (inclusive) above.
14.5 Indemnity Procedures. The Indemnified Party must provide the Indemnifying Party: (a) prompt written notice of the claim for which indemnification is sought (provided that a failure to provide such notice will not relieve the Indemnifying Party of its obligations hereunder except to the extent material prejudice results from such failure); (b) sole control over the defense and settlement of the claim (provided that the Indemnifying Party may not enter into any settlement or dispose of any claim in a manner that requires the Indemnified Party to admit any liability or that places any material obligation on the Indemnified Party without the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed); and (c) all reasonable cooperation, at the Indemnifying Party’s request and expense, in the defense and settlement of the claim.
15. Limitation of Liability.
15.1 Liability Limitations. EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED IN SECTION 15.2 BELOW), (A) NEITHER PARTY NOR ITS LICENSORS WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR, EXCEPT AS PROVIDED IN SECTION 13, FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO TAILOS HEREUNDER DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
15.2 Excluded Claims. As used in this Agreement, “Excluded Claims” means: (a) Customer’s payment of Fees; (b) Customer’s breach of Section 5.4; (c) either Party’s breach of its confidentiality obligations under Section 10; and (d) the gross negligence or willful misconduct of either Party or its agents.
16. Insurance.
16.1 Coverage. At all times during the Subscription Term and for a period of twelve (12) months thereafter, Customer shall maintain, at its sole cost and expense, at least the following types and amounts of insurance coverage:
16.1.1 Commercial General Liability with limits no less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in the aggregate, including bodily injury and property damage, premises, and operations, which policy will include contractual liability coverage insuring Customer’s use of the TAILOS Solution;
16.1.2 Worker’s Compensation with limits no less than the greater of $1,000,000 or the minimum amount required by applicable law; and
16.1.3 Errors and Omissions/Professional Liability with limits no less than One Million Dollars $1,000,000 per occurrence and Two Million Dollars ($2,000,000) in the aggregate.
16.2 Requirements. Customer shall maintain in effect all required insurance coverage with insurance companies lawfully authorized to do business in the jurisdiction in which Customer will use the TAILOS Solution, in whole or in part. To the extent commercially available to Customer from its current insurance company, required insurance policies shall contain a provision that the insurance company or its designee must give TAILOS written notice transmitted in paper or electronic format within ten (10) business days after cancelation of coverage by the insurance company. In addition, if any insurance policy required hereunder is not to be immediately replaced without lapse in coverage when it expires, exhausts its limits, or is to be cancelled, Customer shall give TAILOS prompt written notice upon actual or constructive knowledge of such condition. Upon the written request of TAILOS, Customer shall provide TAILOS with copies of the certificates of insurance and policy endorsements for all insurance coverage required by this Section 16, and shall not do anything to invalidate such insurance. This Section 16 shall not be construed in any manner as waiving, restricting, or limiting the liability of either party for any obligations imposed under this Agreement (including any provisions requiring a Party hereto to indemnify, defend, and hold the other harmless under this Agreement).
17. Miscellaneous.
17.1 Assignment. Customer shall not sublease or otherwise relinquish possession of any Unit excepts as expressly provided for in this Agreement. For clarity, nothing in this Section 17.1 prevents Customer from providing the TAILOS Solution to its subcontractors performing on Customer’s behalf in accordance with this Agreement, so long as Customer remains fully responsible to TAILOS for the acts and omissions of such subcontractors. Neither Party shall assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, to any third party without the other Party’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. Notwithstanding the foregoing, each Party shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to this Section 17.1, this Agreement shall be binding upon and inure to the benefit of the Parties hereto, and their respective successors and permitted assigns.
17.2 Publicity. Customer agrees to issue a mutually agreed press release jointly with TAILOS regarding the relationship created by this Agreement within thirty (30) days of the Effective Date. Customer agrees that TAILOS may list Customer as a customer of TAILOS on TAILOS’ website and social media. At TAILOS’ reasonable request, Customer also agrees to participate in regular case studies documenting Customer’s successful usage of the TAILOS Solution (provided that publication of each case study is subject to Customer’s approval, not to be unreasonably withheld) and to serve as a reference customer. Customer hereby grants to TAILOS a nonexclusive license to use, reproduce, and display Customer’s name, logo, trade names, trademarks, service marks, trade dress, logos and other rights in indicia (“Customer Marks”) in any promotional materials, including any press releases issued by TAILOS and on TAILOS’ website and printed materials, provided that all goodwill in the Customer Marks shall inure to Customer’s benefit. TAILOS may, without Customer’s consent, include Customer’s name and other indicia in its lists of TAILOS’ current or former customers of TAILOS in promotional and marketing materials. Except as otherwise expressly permitted by this Agreement, neither Party will issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, affiliation, or sponsorship without obtaining the express prior written consent of the other Party.
17.3 Delays. In the event that either Party is prevented from performing or is unable to perform any of its obligations under this Agreement (other than any payment obligation) due to any Act of God, fire, casualty, flood, pandemic or epidemic, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, or any other cause beyond the reasonable control of the Party invoking this Section 17.3 (each a “Force Majeure Event”), and if such Party shall have used its commercially reasonable efforts to mitigate its effects, such Party shall give prompt written notice to the other Party, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences.
17.4 Governing Law; Dispute Resolution.
17.4.1 This Agreement shall in all respects be governed by the laws of the State of Texas without reference to its principles of conflicts of laws, and without regard to the United Nations Convention on the Sale of Goods.
17.4.2 Subject to the limitations in Section 17.4.3 of this Agreement, each Party agrees that it will promptly notify the other Party in writing of any dispute arising out of, connected with, or relating to this Agreement in any way. The Parties further agree that they will first attempt to resolve any such dispute through informal negotiation. If the Parties are unable to resolve a dispute through informal negotiation within thirty (30) days after provision of written notice, either Party may commence JAMS arbitration proceedings as described below. Subject to the limitations of Section 17.4.3 below, Parties agree to resolve any and all claims, disputes, or controversies arising out of, in connection with, or relating to this Agreement by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS. The arbitration will be conducted in Austin, Texas unless otherwise agreed. Each Party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator may include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be enforced in any court of competent jurisdiction.
17.4.3 Notwithstanding the foregoing Section 17.4.2, nothing in this Agreement shall prevent either Party from seeking injunctive or other equitable relief from a court as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its data security, intellectual property rights or other proprietary rights. The Parties further consent to the personal and exclusive jurisdiction of the federal and state courts located in Travis County, Texas in connection with any action for injunctive or other equitable relief arising out of, connected with, or relating to this Agreement, and therefore agree that any such action must be brought in a federal or state court within Travis County, Texas.
17.5 Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the Parties hereto. Neither Party shall 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.
17.6 Notices. All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been given: (a) when delivered in person (including by overnight courier); (b) three (3) business days after being mailed by first class, registered or certified mail, postage prepaid, to the address of the Party specified in this Agreement or such other address as either Party may specify in writing; or (c) when delivered (receipt return requested) by email. All email notices, and an email copy of any paper notice, to TAILOS must be sent to:
Attn: Micah Green
TAILOS, Inc.
3709 Promontory Point Drive Suite B214, Austin, TX 78744
Email: m@tailos.com
With a copy to (which shall not constitute notice):
Attn: Gerard Walsh
Orrick Herrington & Sutcliffe LLP
355 S. Grand Ave., Ste. 2700, Los Angeles, CA 90071
17.7 U.S. Government Restricted Rights. If the TAILOS Software is being licensed by the U.S. Government, the TAILOS Software is commercial computer software developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of Units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Order and its successors.
17.8 Export Law Assurances. Customer understands that the TAILOS Solution is or may be subject to export control laws and regulations. CUSTOMER MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE TAILOS SOLUTION OR ANY TECHNICAL OR OTHER DATA PROVIDED IN CONNECTION THEREWITH OR ANY UNDERLYING INFORMATION OR TECHNOLOGY EXCEPT IN FULL COMPLIANCE WITH APPLICABLE LAWS, IN PARTICULAR, UNITED STATES EXPORT CONTROL LAWS. NONE OF THE TAILOS SOLUTION OR ANY UNDERLYING INFORMATION OR TECHNOLOGY MAY BE DOWNLOADED OR OTHERWISE EXPORTED OR RE-EXPORTED: (A) INTO (OR TO A NATIONAL OR RESIDENT OF) ANY COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS; OR (B) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S LIST OF PROHIBITED COUNTRIES OR DEBARRED OR DENIED PERSONS OR ENTITIES. CUSTOMER HEREBY AGREES TO THE FOREGOING AND REPRESENTS AND WARRANTS THAT CUSTOMER IS NOT LOCATED IN, UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.
17.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
17.10 Advice of Legal Counsel. Each Party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the Terms. This Agreement shall not be construed against any Party by reason of the drafting or preparation thereof.
17.11 Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the Terms, the prevailing Party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such Party may be entitled.
17.12 Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to sections, schedules, and exhibits mean the sections of, and schedules and exhibits attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The schedules and exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. All references to “$” or “dollars” mean the lawful currency of the United States of America. Whenever the masculine is used in this Agreement, the same shall include the feminine and whenever the feminine is used herein, the same shall include the masculine, where appropriate. Whenever the singular is used in this Agreement, the same shall include the plural, and whenever the plural is used herein, the same shall include the singular, where appropriate. The section headings appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or intent of any such section nor in any way affect this Agreement.
17.13 Entire Agreement; Modification; Waiver; Severability. This Agreement represents the entire agreement between the Parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement, and is not intended to confer upon any third party any rights or remedies hereunder. Customer acknowledges that it has not entered in this Agreement based on any representations other than those contained herein. TAILOS may, in its sole discretion, modify or update this Agreement from time to time, and so Customer should review the page where these Terms are located periodically. When TAILOS changes the Agreement in a material manner, TAILOS will update the ‘last modified’ date at the top of this page and notify Customer that material changes have been made to the Agreement. Customer’s continued use of the TAILOS Solution after any such change constitutes Customer’s acceptance of the new terms and conditions. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default. If any provision of this Agreement is held invalid or unenforceable under Applicable Laws by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect.