TAILENT, INC TERMS AND CONDITIONS Last Updated: 09/01/2020 WELCOME TO TAILENT, INC. (Tailent)’S WEBSITE LOCATED AT tailent.com and cloud.tailent.com AND ALL SUBDOMAINS (COLLECTIVELY, THE “SITE”). PLEASE READ THESE TERMS AND CONDITIONS (THE “AGREEMENT”) CAREFULLY AS THEY ARE A LEGAL AGREEMENT BETWEEN YOU (“CUSTOMER”) AND TAILENT, AND GOVERN YOUR USE OF OUR SITE, AND OUR PROPRIETARY TECHNOLOGY AND SOFTWARE (“SOFTWARE”) THAT ALLOW CUSTOMER TO AUTOMATE ITS BUSINESS PROCESSES, UNLESS CUSTOMER AND TAILENT HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT. BY USING THE SERVICES (AS DEFINED BELOW) YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT USE THE SERVICES. IF YOU ARE ACCESSING AND USING THE SERVICES ON BEHALF OF A COMPANY (SUCH AS YOUR EMPLOYER) OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY TO THIS AGREEMENT. IN THAT CASE, “CUSTOMER” WILL REFER TO THAT COMPANY OR OTHER LEGAL ENTITY.
2. CHANGES TO AGREEMENT OR SERVICES.
Tailent may update this Agreement at any time, in its sole discretion. If Tailent does so, it will let Customer know either by posting the updated Agreement on the Site or through other communications. If Customer continues to use the Services after Tailent has posted updated Agreement, Customer agrees to be bound by the updated Agreement. Because the Services are evolving over time, Tailent may change or discontinue all or any part of the Services, at any time and without notice, at its sole discretion.
3.1 “Account” means an online account that Customer creates using its secure authentication credentials and registering with the Services.
3.2 “Authorized User” means an employee or contractor of Customer who has: (a) been authorized by Customer to register to access and use the Services and (b) been assigned unique authentication credentials by Customer or Tailent to access and use the Services.
3.3 “Business Process Automation” means any models, methods or processes for automation of business processes that Customer develops using the Services.
3.4 “Customer Data” means any and all information and data (including without limitation, client names, contact details, calendar entries, and emails), text, images, and all other material which Customer inputs or submits into the Services (including without limitation, via the Software such as pre-set connectors that connect to a number of public and private third-party data sources or by Customer providing Tailent access to its business applications of Third Party Technology). Customer Data also includes any Business Process Automation that Customer develops using the Services.
3.5 “Fees” means the fees that Customer agrees to pay Tailent for the access and use of the Services in accordance with the Pricing Plan it chooses.
3.6 “Open Source Software” means all software that is available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative (www.opensource.org).
3.7 “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.
3.8 “Services” means collectively, the Site, the Software (including the connectors to various data sources), and Tailent's platform services that allow Customer to develop Business Process Automation, including through the use of data integration, data analytics, and machine learning, but excludes any Open Source Software that may be used to provide the Services.
3.9 “Pricing Plan” means the pricing plan that Customer chooses and agrees to pay for from the available options provided by Tailent on its Pricing Plans page accessible on the Site or as otherwise agreed by Tailent and Customer in writing.
3.10 “Term” means the term for which Customer has purchased the Services.
3.11 “Third Party Technology” means certain third party services or data sources, which are compatible with the Services, or plugins for the Services, or third party services and technology that Customer uses with or accesses via the Services.
3.12 “Third Party Technology Terms” means terms of service, click-through agreements or any other agreement or rules, policies or guidelines applicable to the use of any Third Party Technology.
4. REGISTRATION; AUTHENTICATION CREDENTIALS; SECURITY.
Subject to Customer’s compliance with the terms of this Agreement, Customer may register to use the Services by creating an online Account. Customer agrees to provide complete, accurate and current information associated with the Account, and will update such registration information promptly should it change or become inaccurate.
4.2 Authentication Credentials.
Customer will create a user identification and associated secure access credentials for access to and use of the Services. Customer will maintain the confidentiality of all user identifications and access credentials and ensure that each user identification number and/or access credentials is used only by Authorized Users. Customer is solely responsible for any and all activities that occur under its Account and all charges incurred from the access to Services from its Account. Customer will not (and will not allow any Authorized User to) share its access credentials with anyone and will immediately notify Tailent of any unauthorized use of Customer’s Account, any user identification and/or access credentials, or any other breach of security known to Customer. Tailent shall have no liability for any loss or damage arising from Customer’s failure to comply with the terms set forth in this Section 4.2.
Tailent will deploy industry standard security precautions intended to protect against unauthorized access to any Customer Data stored on the Services, and will exercise commercially reasonable efforts to deploy corrections within the Services for security breaches made known to Tailent. However, Customer acknowledges that, notwithstanding the security precautions deployed by Tailent, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Services and Customer Data, and Tailent disclaims all liability in connection with such security breaches.
5.1 License Grant.
Subject to the terms and conditions of this Agreement (including payment of all applicable Fees), Tailent hereby grants to Customer during the Term, a limited, non-exclusive, non-transferable license (without the right to sublicense) to access and use the Services for its personal or internal business use only. Customer’s use of the Services may be subject to certain limitations, such as, number of Authorized Users or Services’ capacity, in accordance with the Pricing Plan Customer has chosen.
5.2 License Restrictions.
Customer will not, directly or indirectly, and will not permit any Authorized User or third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Services; (ii) modify, translate, or create derivative works based on any element of the Services or any related documentation; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Services; (iv) use the Services for timesharing or service bureau purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer; (v) remove any proprietary notices from Tailent materials furnished or made available to Customer; (vi) perform, publish or disclose to third parties any performance or benchmark tests or analysis relating to the Services or the use thereof without Tailent’s prior written consent; or (vii) use the Services for any purpose other than its intended purpose.
5.3 Acceptable Use Policies.
Customer will (and will require its Authorized Users to): (i) use the Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others, including Third Party Technology Terms, (ii) not use the Services to transmit any bulk unsolicited commercial communications, (iii) not circumvent or otherwise interfere with any user authentication or security of the Services, and will immediately notify Tailent of any breach, or attempted breach, of security known to Customer; (iv) not interfere or disrupt networks connected to the Services or interfere with other ability to access or use the Services; (v) not interfere with another customer’s use and enjoyment of the Services; (vi) not run Maillist, Listserv, any form of auto-responder or “spam” on the Services, or that otherwise interferes with the proper working of the Services (including by placing an unreasonable load on the Services infrastructure); and (vii) not launch any program that “crawls,” “scrapes,” or “spiders” any page, data, or portion of the Services (through use of manual or automated means).
6. CUSTOMER DATA.
Tailent does not claim any ownership rights in any Customer Data and nothing in this Agreement will restrict any Customer’s rights to use and exploit its Customer Data. As between Tailent and Customer, all right, title and interest in the Customer Data and all Intellectual Property Rights therein belong to and are retained solely by Customer.
6.3 Representations and Warranties.
Customer represents and warrants that (i) it owns or has licenses to all Customer Data and has an unrestricted right to grant the license set forth in Section 6.2 above; (ii) neither the Customer Data (including any Business Process Automation), nor the provision of Customer Data to, or use of the Customer Data by, Tailent, as contemplated herein, will infringe any third party Intellectual Property Rights, rights of privacy or publicity, or any other rights; (iii) Customer Data does not contain any viruses, worms, malware, Trojan horses, or other harmful or destructive code; (iv) neither the Customer Data, nor Tailent’s use of the Customer Data as contemplated herein violates any applicable law or regulation; (v) neither Customer’s use of the Services, nor its use of any Third Party Technology in connection with the Services will violate any Third Party Technology Terms; and (vi) it has complied with all applicable laws (whether local, national or international) in connection with the Customer Data.
Tailent may remove any Customer Data stored using, or derived from the use of the Services or transmitted through the Services, that violates the terms of this Agreement, without notice to Customer. Notwithstanding the foregoing, Customer acknowledges and agrees that Tailent does not monitor or police communications or Customer Data transmitted through the Services and that Tailent will not be responsible for the content of any such communications or transmissions. Customer shall be solely responsible and liable for the completeness, integrity, quality, accuracy, and legality of Customer Data input into the Services.
6.5 Compliance with Laws.
Customer represents and warrants that it has complied with all applicable laws (whether local, national or international) in connection with the Customer Data. If applicable and to the extent Customer Data includes personally identifiable information (“Personal Information”), Customer has obtained all necessary consents and has complied with all applicable laws, rules, regulations and orders, including without limitation, all data privacy laws, in collecting, processing, using and transferring such Personal Information to Tailent for purposes of providing Services to Customer under this Agreement.
TAILENT WILL FOLLOW ITS STANDARD ARCHIVAL PROCEDURES FOR STORAGE OF ANY CUSTOMER DATA. IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA, TAILENT WILL USE ITS COMMERCIALLY REASONABLE EFFORTS TO RESTORE THE LOST OR CORRUPTED CUSTOMER DATA FROM THE LATEST BACKUP OF SUCH CUSTOMER DATA MAINTAINED BY TAILENT. TAILENT WILL NOT BE RESPONSIBLE FOR ANY LOSS, DESTRUCTION, ALTERATION, UNAUTHORIZED DISCLOSURE OR CORRUPTION OF CUSTOMER DATA. TAILENT’S EFFORTS TO RESTORE LOST OR CORRUPTED CUSTOMER DATA PURSUANT TO THIS SECTION 6.6 WILL CONSTITUTE TAILENT’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY LOSS OR CORRUPTION OF CUSTOMER DATA.
7. CUSTOMER OBLIGATIONS.
7.1 Cooperation and Assistance.
Customer and Authorized Users will provide Tailent with good faith cooperation and assistance and make available such information, equipment and support as may be reasonably required by Tailent in order to provide the Services, including, but not limited to, providing Customer Data, and security access, information, and software interfaces to Customer’s business applications. Customer will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. Tailent will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services.
7.2 Marketing Support.
Customer grants to Tailent a non-exclusive, limited right to use Customer’s logos and trademarks (collectively, “Marks”) on Tailent websites and in the production of marketing materials to depict Customer as a customer of Tailent. All goodwill developed from such use will be solely for the benefit of Customer.
Customer will ensure that all Authorized Users (if applicable) comply with the terms and conditions of this Agreement. Customer will promptly notify Tailent of any suspected or alleged violation of the terms and conditions of this Agreement and will cooperate with Tailent with respect to: (a) investigation by Tailent of any suspected or alleged violation of this Agreement, and (b) any action by Tailent to enforce the terms and conditions of this Agreement. Tailent may suspend or terminate any Authorized User’s access to the Services upon notice to Customer in the event that Tailent reasonably determines that such Authorized User has violated the terms and conditions of this Agreement. Customer will at all times be responsible for all actions taken under an Authorized User’s Account, whether such action was taken by an Authorized User or by another party, and whether such action was authorized by an Authorized User. Customer will be liable for any violation of the terms and conditions of this Agreement by any Authorized User.
8. FEES AND TAXES.
Customer agrees to pay all Fees in accordance with the Pricing Plan for access and use of the Services. Except as provided for herein, all payment obligations are non-cancelable and Fees paid are non-refundable. Tailent may, from time to time, offer limited period discounts, credits, or free trials in connection with the Services. Customer’s eligibility and terms of participation for any such credits, discounts, trials, or other promotions will be in accordance with its Pricing Plan.
Customer agrees to provide a valid credit card, debit card, or other valid payment information to pay for the Fees in accordance with the Pricing Plan, and authorizes Tailent to charge such credit card, debit card, or other valid payment mechanism on as the payment interval set forth in the Pricing Plan for the applicable Fees until the Services are terminated under this Agreement. Customer is responsible for providing complete and accurate billing and contact information to Tailent and notifying Tailent of any changes to such information.
8.3 Late Payment.
In the event that any Fees are not paid by Customer by the due date, then without limiting Tailent’s rights and remedies under this Agreement, Tailent may charge interest on the outstanding balance at a rate not to exceed the lessor of one and one-half percent (1.5%) per month or the maximum rate permitted by law.
The Fees are exclusive of all sales, use, value added and other taxes or duties and Customer shall pay all such taxes (excluding taxes based on Tailent’s net income).
As between Tailent and Customer, all right, title and interest in the Services and any other Tailent materials (e.g. Software and connectors) furnished or made available hereunder, and all modifications and improvements thereto, and enhancements and derivative works thereof, including all Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Tailent or Tailent’s licensors and providers, as applicable.
Customer hereby does and will irrevocably assign to Tailent all suggestions, ideas and feedback proposed by Customer regarding the Services (“Feedback”), and all Intellectual Property Rights in the Feedback. Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as Tailent may reasonably request, to perfect such ownership of the Feedback. To the extent any of the rights, title and interest in and to Feedback or Intellectual Property Rights therein cannot be assigned by Customer to Tailent, Customer hereby grants to Tailent an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest. If the foregoing assignment and license are not enforceable, Customer agrees to waive and never assert against Tailent those non-assignable and non-licensable rights, title and interest. Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as Tailent may reasonably request, to perfect ownership of the Feedback. If Customer is unable or unwilling to execute any such document or take any such action, Tailent may execute such document and take such action on Customer’s behalf as Customer’s agent and attorney-in-fact. The foregoing appointment is deemed a power coupled with an interest and is irrevocable.
Each of the parties agrees to maintain in confidence any non-public information of the other party, whether written or otherwise, disclosed by the other party in the course of performance of this Agreement that a party knows or reasonably should know is considered confidential by the disclosing party (“Confidential Information“). The parties hereby agree that Tailent's Confidential Information includes the Services, Feedback, and materials provided with respect to the Services (including without limitation, Software). The receiving party shall not disclose or use any Confidential Information of the disclosing party, except to perform its obligations and exercise its rights hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties’ respective rights therein, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees or agents who require access in order to perform hereunder and who are bound by confidentiality obligations at least as stringent as those herein.
Confidential Information shall not include any information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the other party hereto that rightfully acquired such information; or (iv) communicated to a third party by the receiving party with the express written consent of the other party hereto. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of this Agreement; provided the receiving party provides prompt notice of any such subpoena, order, or the like to the other party so that such party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.
10.3 Destruction or Return of Confidential Information.
Upon expiration or termination of this Agreement for any reason, each party shall, subject to Section 15.5 (Effect of Termination), promptly return to the other party, or destroy, as the parties agree, all copies of the other party’s Confidential Information. All copies, notes or other derivative material relating to the Confidential Information shall be promptly returned or destroyed, as agreed, and no such material shall be retained or used by the receiving party in any form or for any reason.
11. WARRANTY DISCLAIMER.
THE SERVICES (INCLUDING THE SOFTWARE) ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER TAILENT NOR ANY OF ITS LICENSORS MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, IN CONNECTION WITH THE SERVICES OR ANY BUSINESS PROCESS AUTOMATION MODELS THAT CUSTOMER DEVELOPS USING THE SERVICES. WITHOUT LIMITING THE FOREGOING, TAILENT DISCLAIMS ANY WARRANTY THAT THE SERVICES WILL BE ERROR FREE, OR THAT ALL ERRORS WILL BE CORRECTED, OR THAT THE USE OF THE SERVICES WILL BE UNINTERRUPTED. TAILENT AND ITS LICENSORS FURTHER DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR AGAINST HIDDEN DEFECTS, TO THE FULLEST EXTENT PERMITTED BY LAW. TAILENT FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM TAILENT OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT IT IS SOLELY RESPONSIBLE FOR ANY BUSINESS PROCESS AUTOMATION IT CREATES INCLUDING, ANY USE, RELIABILITY AND ACCURACY OF SUCH BUSINESS PROCESSES, AND IT RELEASES TAILENT FROM ANY AND ALL LIABILITY RELATED TO SUCH BUSINESS PROCESS AUTOMATION MODELS.
12.1 Tailent Indemnification.
Tailent will defend, indemnify and hold Customer and its officers, directors and employees harmless from and against all third-party claims that the Services, as provided by Tailent to Customer pursuant to this Agreement, infringes any U.S. copyright or misappropriates any trade secret of any third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment against or paid in settlement by Customer. The foregoing indemnity shall not apply to any infringement claims to the extent arising out of: (i) any modification of the Services where the infringement claim would not have arisen but for such modification; (ii) any combination of the Services with any hardware or software (including any Third Party Technology used by Customer) not provided or approved in writing by Tailent where the infringement claim would not have arisen but for such combination; or (iii) any unauthorized use of the Services by Customer (collectively, “Infringement Exclusions”). Tailent’s obligations under this are conditioned upon: (a) Customer providing Tailent with prompt written notice of such claim; (b) Customer providing reasonable cooperation to Tailent, at Tailent’s expense, in the defense and settlement of such claim; and (c) Tailent having sole authority to defend or settle such claim. THE PROVISIONS OF THIS SECTION 12.1 SET FORTH TAILENT’S SOLE AND EXCLUSIVE OBLIGATIONS, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
12.2 Customer Indemnification.
Customer shall defend, indemnify and hold Tailent, its licensors and their respective officers, directors and employees (“TAILENT Indemnified Parties“) harmless from and against any and all third-party claims which arise out of or relate to: (i) a claim or threat that the Customer Data (including any Business Process Automation) (and/or the exercise by Tailent of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights; (ii) any claims arising due to Customer’s use of the Services in violation of this Agreement, or any other Infringement Exclusions, (iii) a claim or allegation that Customer’s use of Third Party Technology or the Services are in violation of any Third Party Technology Terms, (iv) any claim which if true would amount to a breach of Customer’s representations and warranties under Section 6.3 or 6.5, or (v) Customer’s violation of this Agreement. Customer will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are awarded in final judgment against or paid in settlement by Tailent Indemnified Parties. Customer’s obligations under this Section 12.2 are conditioned upon (a) Customer being promptly notified in writing of any claim under this Section 12.2, (b) Customer having the sole and exclusive right to control the defense and settlement of the claim, and (c) Tailent providing all reasonable assistance (at Customer’s expense and reasonable request) in the defense of such claim. Tailent may, at its own expense, engage separate counsel to advise Tailent regarding a third-party claim and to participate in the defense of the claim, subject to Customer’s right to control the defense and settlement.
13. LIMITATION OF LIABILITY.
13.1 Limitation on Direct Damages.
EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 12, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY, IF ANY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRIOR TO CLAIM, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, LESS, IN ALL CIRCUMSTANCES, ANY AMOUNTS PREVIOUSLY PAID (AS OF THE DATE OF SATISFACTION OF SUCH LIABILITY) BY ONE PARTY TO THE OTHER IN SATISFACTION OF ANY LIABILITY UNDER THIS AGREEMENT.
13.2 Waiver of Consequential Damages.
EXCEPT FOR BREACH OF CONFIDENTIALITY, IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF PROFITS, OR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TAILENT WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
13.3 Essential Purpose.
Customer acknowledges that the terms in this Section 13 are an essential bases of the bargain described in this Agreement and that, were Tailent to assume any further liability, the Fees would out of necessity, be set much higher.
The term of this Agreement commences on the date Customer first registers and creates an Account and continues unless either party terminates the Account as provided herein.
14.2 Termination for Convenience.
At any time, Customer shall have the right to terminate this Agreement and its use of the Services by following the Account cancellation procedure set forth on the Site or by emailing Tailent customer support at email@example.com; provided, however, that under no circumstances shall Customer be entitled to any refund of any Fees for its termination of the Services for convenience prior to the end of the term set forth in the applicable Pricing Plan. We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you.
14.3 Termination for Breach; Insolvency.
Either party may terminate this Agreement upon written notice if the other party has breached a material term of this Agreement and has not cured such breach within thirty (30) days of receipt of written notice from the non-breaching party specifying the breach. Either party may terminate this Agreement if (i) the other party has a receiver appointed for it or its property; (ii) the other party makes an assignment for the benefit of creditors; (iii) any proceedings are commenced by, for or against the other party under any bankruptcy, insolvency or debtor’s relief law; or (iv) the other party is liquidated or dissolved.
14.4 Failure to Pay/Customer Conduct/Inactive free Account.
Tailent may suspend or terminate Customer’s access to the Services, at Tailent’s sole option, with or without notice to Customer, if: (i) the Fees are not paid when due, (ii) any credit or debit card charge or other payment mechanism for Fees is declined; or (iii) if Customer breaches Section 5.2 (License Restrictions), 5.3 (Acceptable Use Policies), or 6.5 (Compliance with Laws), and such suspension or termination may continue, at Tailent’s discretion, until the applicable issue is resolved.
14.5 Effect of Termination.
Upon termination of this Agreement, (a) Customer’s use of and access to the Services shall cease and (b) all Fees and other amounts owed to Tailent shall be immediately due and payable by Customer. Tailent shall have no obligation to maintain or provide any Customer Data and shall, unless legally prohibited from doing so, delete all Customer Data in its systems or otherwise in its possession or under its control within a reasonable time after the effective date of any termination of Customer’s Account or this Agreement. In addition, within ten (10) days of the effective date of termination each party shall return to the disclosing party, or at the disclosing party’s option, the receiving party shall destroy, all items of Confidential Information (other than the Customer Data) then in the receiving party’s possession or control, including any copies, extracts or portions thereof.
The following Sections of this Agreement shall survive the termination of this Agreement: Sections 3 (Definitions), 6.3 (Representations and Warranties), 6.5 (Compliance with Laws), 6.5 (Disclaimer), 8 (Fees and Taxes), 9 (Ownership) 10 (Confidentiality), 11 (Warranty Disclaimer), 12 (Indemnification), 13 (Limitation of Liability), 14.5 (Effect of Termination), 14.6 (Survival), 15 (Notices) and 16 (General).
Tailent may give notice to Customer by means of a general notice through the Services interface, electronic mail to Customer’s e-mail address on record with Tailent, or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to Customer’s address on record with Tailent. Customer may give notice to Tailent by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to Tailent Inc, 595 Market St., Suite 820, San Francisco, CA 94105, USA; Attention: Product Management. Notice shall be deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable.
This Agreement may not be assigned or transferred by Customer, without Tailent’s prior written consent; provided that, Customer may assign this Agreement in connection with a merger, acquisition, or sale of all or substantially all of its assets or shares upon written notice to Tailent. Any assignment in derogation of the foregoing is null and void. Tailent may freely assign or transfer this Agreement. This Agreement shall inure to the benefit of each party’s successors and permitted assigns. This Agreement, together with the Pricing Plan, and all addenda, schedules, and exhibits, constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements and understandings between the parties relating to the subject matter hereof. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Except as otherwise provided herein, this Agreement may be amended or superseded only by a written instrument signed by both parties. This Agreement shall be governed by the laws of the state of California, excluding its conflict of laws rules. The parties further agree that the exclusive venue and jurisdiction for any dispute arising or relating to this Agreement shall be a court of competent jurisdiction located in San Francisco, California. Any provision of this Agreement held to be unenforceable shall not affect the enforceability of any other provisions of this Agreement. Neither party shall be in breach of this Agreement if its failure to perform any obligation under this Agreement, except for payment of Fees, is caused by events or conditions beyond that party’s reasonable control, including, without limitation, acts of God, civil commotion, war, strikes, labor disputes, third party Internet service interruptions or slowdowns, vandalism or “hacker” attacks, acts of terrorism or governmental demands or requirements.