These TERMS AND CONDITIONS shall govern each Order executed by the entity identified as Customer in such Order (“Customer”) and TAILOS, Inc., a Delaware corporation having its principal place of business at 3709 Promontory Point Drive Suite B214, Austin, TX 78744 (“TAILOS”). 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 Conditions and, upon execution of the applicable Order, are legally bound to these Terms and Conditions, together with the applicable Order, schedules, exhibits, or other attachments expressly referenced in these Terms and Conditions or the applicable Order (collectively, this “Agreement”).
“Affiliate” means, with respect to an entity, any entity or person which directly or indirectly controls, is controlled by, or is under common control with that entity. “Control,” including the terms “controlled by” and “under common control with,” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of the subject entity, whether through ownership of voting securities, by contract, or otherwise.
“Applicable Laws” means international, national, provincial, state and local laws, rules, regulations, ordinances, agency or court decisions, or similar acts of governmental authority applicable to a Party’s performance hereunder or the conduct of its business.
“Customer Data” means any data that Customer submits to the TAILOS Platform (or is submitted on Customer’s behalf) as well as all data collected by the TAILOS Smart Robot at the Properties under this Agreement. The TAILOS Solution will not collect any personally identifiable data other than the names and email addresses of Users.
“Deployment Date” means, with respect to each Property listed on an Order requesting the TAILOS Solution, the date on which TAILOS has activated the first TAILOS Smart Robot at such Property.
“Initial Deployment Date” means the first Deployment Date to occur under this Agreement.
“Initial Term” shall have the meaning set forth in the applicable Order.
“Order” means each order or agreement executed by both parties to order the TAILOS Solution under this Agreement for any Property. Orders, when executed by TAILOS, shall be deemed incorporated herein by reference.
“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.
“Renewal Term” shall have the meaning set forth in the applicable Order.
“Services” means any services related to the TAILOS Solution which are expressly set forth in the applicable Order.
“TAILOS Smart Robot” (also known as “Rosie”) means TAILOS’s proprietary, robotic automated vacuum cleaning systems made available to Customer pursuant to an Order.
“TAILOS Platform” means TAILOS’s proprietary, hosted web-based dashboard in the version made available to Customer pursuant to an Order.
“TAILOS Solution” means the TAILOS Smart Robot and the TAILOS Platform, collectively.
“Term” means, collectively, the Initial Term and any Renewal Term.
“User” means each individual authorized by Customer to use the TAILOS Solution.
2.1 Subscription to TAILOS Solution. Subject to the terms and conditions of this Agreement, TAILOS hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, right during the Term for Users to: (i) for each Property identified on an Order, use the number of TAILOS Smart Robots as provided by TAILOS hereunder at such Property solely for purposes of performing cleaning services at such Property; and (ii) access and use the TAILOS Platform in connection with such TAILOS Smart Robots.
2.2 Restrictions. Neither Customer nor any Users shall: (a) provide access to the TAILOS Solution to any third party (including without limitation TAILOS’s competitors such as Softbank, Avidbots, Kaercher, Discovery Robotics, Brain Corp, Amadeus, Optii, etc.), including by selling, reselling, renting, or leasing the TAILOS Solution (or Customer’s access thereto) or offering any time sharing arrangement, service bureau or any other product or service intended to provide such access; (b) attempt to gain unauthorized access to the TAILOS Solution or any of TAILOS’s associated systems or networks; (c) modify, make derivative works of, disassemble, decompile, reverse engineer or otherwise attempt to discover the source code of the TAILOS Solution or any component thereof; (d) disassemble or modify any TAILOS Smart Robot; (e) use the TAILOS Solution for any purpose that is in violation of any Applicable Laws; or (f) use the TAILOS Solution in any manner other than as expressly permitted herein. Customer agrees to act prudently 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.
2.3 User Accounts. Customer is solely responsible for the acts and omissions of any and all persons accessing and using the TAILOS Platform using any User’s user name and password, and for the acts and omissions of any and all persons using TAILOS Smart Robots provided to Customer hereunder, in each case other than TAILOS’s employees. Customer shall not authorize any individual to use the TAILOS Solution other than its own employees and contractors and employees and contractors of its relevant third-party service providers, in each case who have received sufficient training regarding use of the TAILOS Solution. Customer shall, and shall instruct its Users to, use all reasonable means to secure user names and passwords, and shall promptly notify TAILOS if it suspects that any user name and password has been compromised. Each TAILOS Solution account may only be accessed and used by the specific named User for whom such account is created (as specified on the Order).
2.4 Services. Provided that Customer has timely made all relevant payments relating thereto, TAILOS will provide related Services solely to the extent expressly set forth in the applicable Order. Customer acknowledges that TAILOS’s obligations to perform the Services are contingent in all respects on Customer’s provision of reasonably necessary information, cooperation and resources, including as specified in the applicable Order.
2.5 Customer Responsibilities. Customer shall: (i) comply with, and ensure all of its Users’ compliance, with this Agreement; and (ii) cover TAILOS’s reasonable travel-related expenses (economy class airfare, lodging and meals) incurred travelling for purposes of Support Services or otherwise at Customer’s request. Customer further acknowledges that it is responsible for providing all necessary Wi-Fi and Internet connectivity services necessary to use the TAILOS Solution, and that TAILOS shall not have any obligation or liability to Customer for any outage, inability to use, errors or other issues relating to such services. Customer shall pay TAILOS for all reimbursable expenses incurred hereunder within thirty (30) days of TAILOS’s invoice. All such payments will be made without any withholding, deduction or set-off of any kind.
2.6 Ownership of the TAILOS Solution. As between the parties, TAILOS owns all right, title and interest (including all intellectual property rights) in and to the TAILOS Solution and all TAILOS’ related technology, including any improvements thereto developed by TAILOS in the course of this Agreement. Except for the limited rights expressly granted in Section 2.1, this Agreement (inclusive of all Orders hereunder) does not grant Customer any rights, title or interest or ownership in or to the TAILOS Solution or any of TAILOS’s intellectual property or proprietary rights.
2.7 Feedback. Customer hereby grants TAILOS a royalty-free, fully paid up, worldwide, irrevocable, perpetual license to use and exploit through all methods and means any suggestions, enhancements, requests, recommendations or other feedback provided by Customer or any Users related to the TAILOS Solution or any of TAILOS’s other products and services.
2.8 TAILOS Smart Robots.
a) Subject to timely payment of any specified fees, TAILOS and Customer will agree upon the Deployment Date for each Property listed in each Order after such Order is executed by the Parties. TAILOS shall have no liability for any delay in the shipment or receipt of TAILOS Smart Robots caused by factors outside of TAILOS’s reasonable control.
b) Certain software owned by TAILOS and by third parties is pre-installed on the TAILOS Smart Robot (“Embedded Software”). Embedded Software shall at all times remain the property of TAILOS or its third-party licensor (as applicable), and Customer shall not copy, modify, translate, create derivative works of, distribute, transfer, export, transmit, dismantle, reverse engineer, decompile or disassemble any Embedded Software. Customer shall not install or attempt to install any other software on any TAILOS Smart Robot and shall not remove or attempt to remove any Embedded Software.
c) CUSTOMER AGREES THAT ALL TAILOS SMART ROBOTS ARE NOT SOLD TO CUSTOMER AND SHALL REMAIN THE PROPERTY OF TAILOS. TAILOS shall at all times retain all title to and ownership of the TAILOS Smart Robots. Customer shall store, use and maintain the TAILOS Smart Robot(s) solely at the Property(ies). Customer shall not take or permit any action inconsistent with TAILOS’s ownership interest in the TAILOS Smart Robots, including, but not limited to, imposition of any security interest, lien or encumbrance thereon. Customer shall not rent, sell, lease or otherwise transfer any TAILOS Smart Robot or any part thereof or use it for the benefit of any third party. Customer is responsible for all loss, damage, theft or destruction of the TAILOS Smart Robot, except for ordinary wear and tear and any loss, damage or destruction caused by TAILOS.
2.9 Marketing. Customer agrees to issue a mutually agreed press release jointly with TAILOS regarding the relationship created by this Agreement within thirty days of the Effective Date. Customer agrees that TAILOS may list Customer as a customer of TAILOS on TAILOS’s website and social media. At TAILOS’s reasonable request, Customer also agrees to participate in regular case studies documenting Customer’s successful usage of the TAILOS Platform (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.
2.10 Customer Data. Customer hereby grants TAILOS a non-exclusive, perpetual, royalty-free, fully paid up, worldwide, irrevocable license to use, reproduce, modify, create derivative works of, display, perform and transmit any Company Data in connection with: (i) the provision of the TAILOS Solution and the Services, (ii) TAILOS’s internal business purposes, such as informing the development and improvement of TAILOS’s products and services; and (iii) the aggregation of Customer Data in anonymous form with data provided to TAILOS by third parties, and any lawful use and disclosure of such aggregated and anonymized data. TAILOS will not, share or transmit any Customer Data in any form or format to any third party in a manner that discloses Customer’s Confidential Information or personal information relating to Customer or its Users without the prior written consent of Customer, except that TAILOS may: (i) disclose Customer Data as required by law or legal process; and (ii) provide Customer Data to its third party contractors and service providers for use on behalf of TAILOS as contemplated hereunder.
3.1 Confidential Information. Except as explicitly excluded below, any information provided by a Party to the other Party which is marked as “confidential” or “proprietary” or that the other Party should otherwise reasonably understand to be confidential information of the disclosing Party constitutes the disclosing Party’s confidential and proprietary information (“Confidential Information”). TAILOS’s Confidential Information includes the TAILOS Materials. Customer’s Confidential Information includes Customer Data. Confidential Information does not include information which is (i) already known by the receiving Party without an obligation of confidentiality other than pursuant to this Agreement; (ii) publicly known or becomes publicly known through no unauthorized act of the receiving Party; (iii) rightfully received from a third party without a confidentiality obligation to the disclosing Party; or (iv) independently developed without access to the disclosing Party’s Confidential Information.
3.2 Confidentiality Obligations. Each Party (the “receiving Party”) will use the Confidential Information of the other Party (the “disclosing Party”) only as necessary to perform its obligations hereunder or as expressly permitted herein and shall not disclose the Confidential Information to any third party except as expressly permitted herein or otherwise permitted by the disclosing Party. The receiving Party shall protect the confidentiality of the disclosing Party’s Confidential Information with the same standard of care as such receiving Party uses to protect its own Confidential Information, but in no event shall the receiving Party use less than a reasonable standard of care prevailing in the receiving Party’s industry. The receiving Party may share the disclosing Party’s Confidential Information with those of its employees, agents and representatives (and in the case of TAILOS as the receiving Party, its third-party contractors and service providers) only to the extent they have a need to know such information and are bound by confidentiality obligations not materially less restrictive than those contained herein (each, a “Representative”). Each Party shall be responsible for any breach of this Section 3 by any of its Representatives.
3.3 Additional Exclusions. The receiving Party will not be in breach of this Section 3 for a disclosure of the disclosing Party’s Confidential Information that is required by Applicable Laws, including by court subpoena or similar instrument; provided, however, that the receiving Party must (except to the extent prohibited by Applicable Laws) provide the disclosing Party with written notice of the required disclosure sufficiently in advance to allow the disclosing Party to contest or seek to limit the disclosure or obtain a protective order or similar instrument. If no protective order or other remedy is obtained, the receiving Party agrees to furnish only that portion of the Confidential Information that it is advised by counsel is legally required and agrees to exercise reasonable efforts to ensure that confidential treatment will be accorded to the Confidential Information so disclosed. If a Party or its Representatives breaches or threatens to breach the obligations of this Section 3, the other Party may seek injunctive or other equitable relief from a court of competent jurisdiction, in addition to its other remedies, as the inadequacy of monetary damages and irreparable harm are acknowledged.
4.1 Fees. Customer’s rights to use the TAILOS Solution and receive the Services is subject to Customer’s payment of all fees and expenses set forth in the applicable Orders and this Agreement. The fees during any Renewal Term shall be the fees offered by TAILOS for the TAILOS Solution and the Services as of the date on which the Renewal Term begins.
4.2 Billing and Payment Terms. TAILOS shall invoice Customer in accordance with the terms of the applicable Order and this Agreement for all fees and expenses payable hereunder. Customer shall pay all such fees and expenses in United States Dollars within thirty (30) days of the date of the applicable invoice. Payments not made when due shall accrue interest at a rate of the lesser of 1.5% per month or the maximum amount permitted under Applicable Law.
4.3 Shipping Costs. Customer is responsible for paying all costs associated with shipping TAILOS Smart Robots to the Properties. TAILOS will use commercially reasonable efforts to accommodate the shipping carrier of Customer’s choice where Customer desires to ship under its own account with such shipper. If TAILOS is to pay the carrier, Customer shall issue payment to TAILOS promptly after TAILOS’s provision to Customer of an invoice, which shall be issued by TAILOS following shipment of the applicable TAILOS Smart Robots.
4.4 Taxes. The fees payable hereunder are exclusive of any taxes, duties or similar governmental sales tax type assessments, expressly excluding any income taxes on TAILOS (collectively, “Taxes”). Customer shall be solely responsible for paying all Taxes associated with or arising from this Agreement and shall indemnify, hold harmless and reimburse TAILOS for all Taxes paid or payable by, demanded from, or assessed upon TAILOS.
5.1 Mutual Representations and Warranties. Each Party represents and warrants that: (i) it is duly organized and validly existing and has full corporate power and authority to execute, deliver and enter into this Agreement and to perform its obligations under hereunder; (ii) the person whose signature appears below such Party’s name below is authorized to enter into this Agreement on behalf of such Party; and (iii) the execution, delivery and performance of this Agreement by such Party does not conflict with any agreement, instrument or understanding, oral or written, to which such Party is a party or by which such Party may be bound, nor violate any Applicable Laws.
5.2 Warranties by Customer. Customer represents and warrants to TAILOS that Customer has and shall provide accurate information regarding the Properties (and acknowledges that the Fees are based upon such information and Customer’s representations in connection therewith).
5.3 Warranty by TAILOS. TAILOS represents and warrants to Customer that: (i) TAILOS will perform the Services in a professional and workmanlike manner through use of trained personnel; (ii) TAILOS shall use commercially reasonable means to prevent the introduction of Trojan horses, worms, viruses or other disabling devices into the TAILOS Solution; (iii) to TAILOS’s actual knowledge, the TAILOS Solution does not infringe the intellectual property rights of any third party; and (iv) TAILOS has not and will not make any payments or gifts or any offers or promises of payments or gifts of any kind, directly or indirectly, to any employee or official of any government or any agency or instrumentality thereof, including state-owned enterprises, or to any official of any political party, or to anyone acting on such employee or official’s behalf, in connection with its entry into this Agreement.
5.4 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. TAILOS AND ITS SUPPLIERS, LICENSORS, PARTNERS AND SERVICE PROVIDERS DO NOT WARRANT THAT THE SERVICES OR OTHER PRODUCTS OR SERVICES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, INFORMATION OBTAINED FROM THIRD PARTIES, WILL (i) BE UNINTERRUPTED, ERROR-FREE (OR THAT ERRORS WILL BE CORRECTED), OR COMPLETELY SECURE; (ii) PROVIDE ACCURATE OR COMMERCIALLY BENEFICIAL RESULTS; OR (iii) MEET CUSTOMER’S EXPECTATIONS.
6.1 EACH PARTY HERETO AGREES THAT WITH THE EXCEPTION OF BREACH OF SECTION 3, AND THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE OTHER PARTY, NEITHER THE OTHER PARTY NOR ITS AFFILIATES NOR THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES OF ANY OF THEM WILL BE LIABLE TO SUCH PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES OR COSTS INCURRED AS A RESULT OF LOSS OF TIME, LOSS OF SAVINGS, LOSS OF DATA, LOSS OF PROFITS, OR LOSS OF GOODWILL, WHETHER FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR COSTS OCCURRING AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.
6.2 WITH THE EXCEPTION OF DAMAGES ARISING FROM BREACH OF SECTION 3 OR ANY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL THE CUMULATIVE LIABILITY OF EITHER PARTY OR IT’S AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES FOR ANY AND ALL DAMAGES, INJURIES, AND LOSSES ARISING FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED ON, RESULTING FROM, OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE AMOUNTS PAID AND PAYABLE BY CUSTOMER HEREUNDER.
7.1 Term. This Agreement begins on the Effective Date and will (unless earlier terminated as set forth herein) continue until the date on which all Orders have expired or terminated in accordance with the terms thereof and the provisions contained in this Agreement (the “Expiration Date”).
7.2 Termination. Either Party may terminate this Agreement if the other Party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after written notice of the same.
7.3 Effect of Termination. Upon expiration or termination of this Agreement: (i) all of Customer’s rights granted hereunder will immediately terminate, and Customer and all Users shall immediately stop accessing and using the TAILOS Solution; (ii) any and all of Customer’s payment obligations under this Agreement will become immediately due and payable; (iii) Customer shall pay, within thirty (30) days after the effective date of termination, all fees accruing prior to the expiration or termination date and related expenses; (iv) within thirty (30) days after such expiration or termination, each Party shall return all Confidential Information of the other Party in its possession at the time of expiration or termination and shall not make or retain any copies of such Confidential Information except as required to comply with Applicable Laws or any accounting record keeping procedure or process such Party has implemented in the normal course of its business; provided, however, that TAILOS may retain Customer Data for use as expressly set forth herein;; and (v) Customer shall promptly return all TAILOS Smart Robot(s) and all accompanying documentation and materials to TAILOS at Customer’s expense (with an expense cap of $50 per TAILOS Smart Robot), using the same insured shipping and/or delivery method originally used by TAILOS to deliver the TAILOS Smart Robot(s) or such other arrangement and TAILOS and Customer may agree on a case by case basis.
7.4 Survival. Notwithstanding the foregoing, the following provisions will survive any expiration or termination of the Agreement according to their respective terms: Sections 1, 2.2, 2.5 (with respect to any accrued but unreimbursed expenses), 2.6, 2.7, 2.8(c), 2.10, 3, 4 (with respect to any accrued but unpaid amounts), 5.4, 6, 7.3, 7.4 and 8. Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry.
8.1 Assignment. No Party shall assign its rights or delegate its duties under this Agreement without the other Party’s prior written consent. Any attempted assignment or delegation without such consent will be void. Notwithstanding the foregoing, either Party may assign its rights and/or delegate its duties to any person or entity that is acquiring all or substantially all of its assets or that becomes its successor by merger, consolidation, acquisition of stock or assets, or other business combination. This Agreement will bind and inure to the benefit of each Party’s successors and permitted assigns
8.2 Governing Law; Waiver; Severability. This Agreement is made under and will be governed by and construed in accordance with the laws of the State of New York (except that body of law controlling conflicts of law). In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default and will not act to amend or negate the rights of the waiving Party. Whenever possible, each provision of the Agreement will be interpreted in such manner as to be effective and valid under Applicable Law, but if any provision of the Agreement is held to be prohibited by or invalid under Applicable Law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of the Agreement. The Parties hereby disclaim applicability of the United Nations Convention on Contracts for the International Sale of Goods.
8.3 Notices. Any notice or communication required or permitted to be given hereunder may be delivered by e-mail (but only with return receipt confirmed), by hand, by courier, sent by confirmed facsimile, or mailed by registered or certified mail, return receipt requested; postage prepaid to the address for the applicable Party set forth below, or at such other address as may hereafter be furnished in writing by either Party hereto to the other. Such notice will be deemed to have been given as of the date it is delivered, mailed or sent, whichever is earlier.
(a) If to TAILOS:
Attn: Micah Green
3709 Promontory Point Drive Suite B214, Austin, TX 78744
m@tailos.com
with a copy to (which copy shall not constitute notice):
Wilmer Hale
Attn: Gary Schall
60 State Street, Boston, MA 02109
Gary.Schall@wilmerhale.com
(b) If to Customer: To the address set forth on the applicable Order.
8.4 Relationship of Parties. TAILOS and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between TAILOS and Customer. Neither TAILOS nor Customer may, as a result of this Agreement, bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.
8.5 Entire Agreement. This Agreement constitutes the complete and entire agreement between the Parties with respect to the subject matter hereof and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written or oral, regarding such subject matter.
8.6 Amendment. No amendment, modification or supplement of any provision of this Agreement will be valid or effective unless made in writing and signed by a duly authorized officer of each Party.
8.7 Headings. 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.
Version as of August 2, 2022