Effective Date 10/2/2024

This Customer Business Agreement (the “Agreement”)  governs  use of the SaaS work management platform accessed through the tailapp.ai website (the “Services”).

By clicking on the “I agree” button, signing your order, or using the Services, you agree that you have read and understood the terms of this Agreement and agree and acknowledge that you are legally bound by them on behalf of your business and on behalf of any end users that are authorized by you to use the Services under your account.  

In this Agreement, the words “Customer,” “you” and “your” refer to the business that submitted the Order Form  and  “we”, “us” and “our” refers to Tail LLC, its subsidiaries, successors in interest and assigns, and  the website, tailapp.ai (the “Website”).  In this Agreement, “End User” means any individual who is authorized to use the Services under Customer’s account, including a Customer’s or its Affiliate’s employees, consultants, independent contractors, or agents. “Affiliate” means any entity that directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, Tail or the Customer.

1.     The Services

Provision of Services.  Tail provides Services via various Subscription Plans offered through its Website.  Customers may select from Tail’s various subscription offerings on the Website by submitting a completed order form via the Website (“Order Form”), detailing the particular subscription offering selected by Customer (the “Subscription Plan”), and the particular End Users, who must be located in the United States, who will be authorized to access and use the Services provided pursuant to such Customer’s Subscription Plan.

Notwithstanding anything to the contrary contained in this Agreement, or otherwise on the Website, Tail reserves the right to update and otherwise modify the content, functionality and user interface of the Services from time to time in its sole discretion, provided that Tail does not materially reduce the functionality of any of the Services offered via a Subscription Plan during the term of the applicable Subscription Plan (the “Subscription Term”).

1.1.          Right to Use and Access the Services. During the Subscription Term, and subject to the terms and conditions of this Agreement and the Privacy Policy governing use of the Website (“Privacy Policy”), Tail grants Customer a non-exclusive, non-transferrable (except as permitted in this Agreement) license for it and its End Users to use and access the Services provided under the applicable Subscription Plan selected by Customer, solely for Customer’s internal business purposes in accordance with this Agreement and applicable Order Form.

1.2.          End Users. Subject to the terms of the applicable Subscription Plan selected by Customer,   Customer may permit End Users to use the Services solely for the benefit of Customer and pursuant to and in accordance with this Agreement, the Privacy Policy and any Customer-generated policies, procedures and/or conditions consistent with this Agreement. Under certain Subscription Plans, End Users may create accounts in their own names but Customer shall be responsible to Tail for the account and for activities undertaken under any such accounts by End Users. Each End User account may only be used by a single End User.

1.4            Customer may not, nor allow any End User or third party to (a) Use the Services except specifically authorized herein, (b) copy, reverse engineer, modify, create derivative works from, or otherwise seek to access the source code of the Services,  (c) remove proprietary notices from the Services or materials generated therefrom, (d) resell, sublicense, distribute or rent the Services, (e) use the Services to provide a hosted or managed service to third parties, (f) use the Services for any purpose which is competitive to Tail, or (g) interfere with the operation of the Services.

1.5. Chat Feature. Tail uses a third party provider, tawk.to. (“tawk”), to supply and support its “Chat” feature, which Tail offers pursuant to certain of its Subscription Plans to respond to Customer inquiries in real time. If the Chat feature is used by a Customer and/or its End Users, the Chat session will be recorded and the content will be stored by tawk and shared with Tail for purposes of responding to Customer’s and/or its End Users’ customer support service requests and otherwise address Customer’s and/or its End Users’ inquiries about the Services. If Customer wants to disable the recording component of the Chat feature or delete the content of any of its or its End User’s Chat sessions from tawk’s and Tail’s records, please contact us at support@tailapp.ai.  

1.6 Customer acknowledges that as between Tail and Customer, Tail owns all right, title and interest in and to the Website, Services and any documentation provided by or on behalf of Tail to Customer (“Documentation”) (including all intellectual property rights), subject only to the license expressly granted under this Agreement. Customer acknowledges and agrees that no configuration or deployment of the Website or Services shall affect or diminish Tail’s rights, title, and/or interest in and to the Website or Services. 

1.7 To the extent Customer provides feedback and/or suggests any features, functionality or performance elements for the Website or Services (“Suggestions”), then for the consideration set forth herein, the sufficiency and receipt of which Customer hereby acknowledges, Customer hereby assigns all of its right, title and interest in such Suggestions to Tail.  Tail shall own all right, title and interest (including any intellectual property rights) in such Suggestions and Tail shall have an absolute, perpetual and unrestricted right to incorporate all such Suggestions into the Website, the Services and/or into other software, services and/or platforms, and to use and license the same as Tail deems appropriate, without the consent of, or payment to, Customer.

1.8 Suspension or Termination of Services. Tail may, directly or indirectly, by use of any lawful means, suspend, terminate, or otherwise deny Customer’s, any End User’s, or any other person’s access to or use of all or any part of the Website and/or Services, without incurring any resulting obligation or liability, if: (a) Tail believes such action is necessary under applicable Law, as defined below; (b) Tail receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Tail to do so; or (c) Tail in good faith believes, in its commercially reasonable discretion, that: (i) Customer or any End User has failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) Customer or any End User is, or has been, involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; (iii) this Agreement expires or is terminated; or (iv) Customer fails to make payments due for the applicable Subscription Plan as set forth herein and in the Order Form. This Section does not limit any of Tail’s other rights or remedies, whether at law, in equity, or under this Agreement

1.9 Tail reserves any and all rights, implied or otherwise, which are not expressly granted to Customer in this Agreement.

2.     Payment Terms

2.1.          Subscription Fees. Customer will pay the fees for the Services (“Subscription Fees”) in the amount(s) and at the time(s) set forth in the Order Form.  If the timing of the payment of the Subscription Fees is not specified in the Order Form, Customer will pay the Subscription Fee within thirty (30) days of Customer’s receipt of  an invoice.  Late payments are subject to a service charge of the lesser of 1.5% per month or the maximum allowed by law. Tail reserves the right to suspend and/or terminate this Agreement and Customer’s account, including all End User accounts associated therewith, in the event that Customer’s fails to make any payment when due and Customer’s account is not brought current within 10 days following notice of overdue amounts. Customer remains liable for all amounts due if Tail suspends or terminates Customer. Subscription Fees are non-refundable, subject to termination provisions in this Agreement.

2.2.          Taxes. Subscription Fees are exclusive of taxes. Customer is responsible for payment of any and all applicable taxes in connection with this Agreement including but not limited to sales, delivery, value-added or withholding taxes (but not taxes based on Tail’s net income).

2.3.          Disputed Amounts. If Customer disputes any amounts due under the applicable Order Form, Customer has thirty (30) days from receipt of the invoice reflecting such disputed charges to notify Tail, in writing, of the amount and nature in dispute.

3.     Renewal of Subscription

3.1.          Automatic Renewal. Customer’s Subscription Plan will automatically renew for successive periods of equal length to the initial Subscription Term, unless either party gives the other party at least thirty (30) days written notice prior to the start of the applicable renewal period that such party does not want to renew the Subscription Term.

3.2.          Subscription Fee Changes. Upon renewal, you will be charged and billed the Subscription Fee in effect for the applicable Subscription Plan at the time of renewal, plus applicable taxes. If you do not accept the change in pricing, you have the right to reject the change by canceling your Subscription within thirty (30) days of the start of the applicable renewal term by sending an email to Tail at spencer@tailapp.ai. The change in pricing will take effect at the start of  the next Subscription Term following the date of the price change.

4.     Termination of Services and Account

4.1.          Termination for Cause. Tail may terminate this Agreement and the Subscription Term (including any renewal terms thereof) upon written notice if (i) a payment due under this Agreement is not paid within ten (10) days following notice of overdue amounts; or (ii) Tail determines, in its sole discretion, that Customer and/or any of its End Users are misusing, disrupting, or otherwise  interfering with the Website and/or the Services.

4.2.          Either party may terminate this Agreement and the Subscription Term (including any renewal terms thereof)  upon written notice if (i) other than with respect to a failure to pay fees when due, the other party is in material breach of this Agreement and fails to cure within thirty (30) days of written notice of such breach; (ii) the other party ceases its business operations or becomes subject to insolvency or bankruptcy proceedings and the proceedings are not dismissed within sixty (60) days.

4.3.          Effect of Termination. Upon expiration or termination of this Agreement and/or the Subscription Term (including any renewal terms thereof) for any reason, Customer will immediately cease using the Services and, at Tail’s election as notified to Customer by Tail in writing, either remove and return or destroy, all Documentation and any other materials provided by or on behalf of Tail in the Customer’s possession, custody or control and all copies, installations, and instances of the applicable Software from all Customer computers and any other devices on which any portion of the Software was installed, and ensure that all applicable End Users do the same; and within fifteen days of such notice provide Tail with a written certification signed by an officer of Customer attesting to the fact that the obligations  set forth above have been complied with.

4.4.          If Customer terminates this Agreement as a result of Tail’s material breach, Tail agrees to refund to Customer a prorated amount of prepaid, unused fees applicable to the remaining period of the Subscription Term. Termination will not relieve Customer of the obligation to pay any fees accrued or payable to Tail prior to the date of termination.

5.     Customer Content Uploaded to the Services

5.1      Ownership of Content. As between Tail and Customer, all data and other content uploaded or input onto the Website and/or Services by Customer and/or its End Users (“Customer Content”) is owned and controlled by Customer, and as between Tail and Customer, all intellectual property rights in such Customer Content are vested in Customer.  Customer shall obtain all necessary rights and permissions for the uploading and use of the Customer Content as contemplated herein.

5.2    Customer has and will retain sole responsibility for: (a) all Customer Content; (b) all information, instructions, and materials provided by or on behalf of Customer or any End User in connection with the Services; (c) the security, access and use by Customer and its End Users of the Website and Services; and (d) all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

5.3       Access and Security. Customer shall use commercially reasonable efforts to employ physical, administrative, and technical controls, screening, and security procedures and other safeguards designed to:  (a) securely administer the distribution and use of all access credentials and passwords provided to End Users; (b) protect against any unauthorized access to or use of the Services; and (c) protect the security and confidentiality of, and control the content and use of, all Customer Content, including the uploading or other provision of Customer Content for processing by the Services.

5.4       Customer hereby grants to Tail (i) during the Term, (a) a license to modify, translate, reproduce, and otherwise act with respect to Customer Content to enable Tail to generate reports and otherwise adapt the Customer Content to fulfill the requirements and purposes of this Agreement and (b) a right to anonymize the Customer Content, and (ii) a perpetual license to access and use anonymized Customer Content (including, without limitation, navigational information, aggregated and/or anonymous demographic information (including without limitation, age, profession and gender), Internet traffic and domain name information, computer and browser information and other anonymous statistical information or data arising from use of the Services), alone or with other content, (i) for Tail’s business purposes, including, without limitation, to (a) analyze, improve and/or enhance the Services and/or Tail’s other software, platforms and services; and (b) demonstrate Tail’s software, platforms and services; and (ii) to comply with legal and regulatory obligations.

5.5       Limitations on Content. Neither Customer nor any of its End Users may upload any  Customer Content that (i) is deceptive, obscene, pornographic, hateful, abusive, or promotes racism or discrimination of any kind; (ii) contains “sensitive information” as defined by applicable Law (including, e.g., financial information, social security numbers, health information, payment card numbers); (iii) contains personal information of minors under the age of 16; (iv) contains viruses, bots, Trojan horses or any other potentially harmful software or programs; or (v) otherwise will or is intended to cause damage to the Services, Tail or any third party. 

5.6       Intellectual Property Rights in Website and Services. As between Customer and Tail, Tail owns all intellectual property rights in the Website and the Services. Except as expressly stated, this Agreement does not grant either party any rights to the other’s content or any of the other’s intellectual property.

6.     Protection of Personal Information

6.1.          The terms of Tail’s Website Privacy Policy, located at www.__.__ *[[link to Privacy Policy]]* are incorporated in this Agreement by reference. From time to time, Tail may change or update its Privacy Policy; such changes will be posted on the Website. To the extent there is any inconsistency between the Privacy Policy and this Agreement, the terms of this Agreement shall govern.

7.     Resolving Disputes

7.1.          Scope of This Agreement. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any conflict of laws principles that would require the application of laws of a different state.  Disputes between Customers and Tail shall be governed by the terms of this Agreement. Disputes between Customers and their employees and other of Customer’s End Users, including disputes concerning such End Users’ use of the Services, are governed by the Customer-employee relationship and/or such other relationship between Customer and such End User, and by Customer-generated documents.

7.2.          If Customer has any issues concerning the Website and/or the Services, Customer must contact Tail at support@tailapp.ai to advise Tail of the issues.  Tail will attempt in good faith to address such issues.  If the issues are not resolved within thirty (30) days, a formal proceeding may be initiated in accordance with this Section 7.

7.3.          Arbitration. Except where prohibited by law and subject to Section 7.4, (i) any and all disputes and causes of action arising out of or connected with this Website and Services shall be resolved individually and exclusively by final and binding arbitration in New York within one year from the date that the cause of action arose (or, if multiple cause of actions are involved, from the date that the first cause of action arose), with such arbitration conducted pursuant to the then prevailing commercial rules of the American Arbitration Association; and (ii) judgment upon such arbitration award may be entered in any court having jurisdiction.  Unless prohibited by law, no arbitration brought pursuant hereto shall be joined to any other action or arbitration.  

7.4.          Exceptions to Arbitration and Notice Requirements. A lawsuit may be filed in in any state or federal court in the state of New York  or in any other court having jurisdiction for injunctive or other equitable relief to stop unauthorized use or abuse of the Services or infringement of Tail’s  intellectual property rights without engaging in the informal dispute resolution process described above, and without the necessity of furnishing a bond or other security, to the fullest extent permitted by law.

8.     Confidentiality

8.1.          Confidential Information.  During the Subscription Term, each party may disclose or make available to the other party information that is identified or understood as being proprietary and confidential (“Confidential Information”), including, without limitation, (i) non-public financial, marketing, and pricing information, trade secrets, know-how, proprietary tools, knowledge and methodologies, and (ii) the Services and the related software and platforms (in source code and/or object code form), non-public information, benchmark test results regarding the functionality and performance of the Services, and any software license keys provided to Customer or its End Users for accessing the Services. Confidential Information will not include any information which: (i) was already known to or in possession of the receiving party without an obligation of confidentiality prior to the time of disclosure by the disclosing party; (ii) lawfully received by the receiving party from a third party without that third party’s breach of agreement or obligation of trust; (iii) is available or becomes generally available to the public other than through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party.

8.2. The receiving party will handle the Confidential Information of the disclosing party with the same degree of care and prudence it uses with its own similar information of like kind and character but no less than reasonable care, and will take all reasonably necessary and appropriate steps to keep confidential and avoid disclosure of the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information to its employees, Affiliates, consultants, subcontractors and advisors who have a need to know such Confidential Information and or if disclosure is required by applicable Law or governmental order or if a party reasonably believes that it has otherwise become legally required to disclose any such Confidential Information, provided that in such case, the receiving party uses commercially reasonable efforts to provide prompt prior notice of such disclosure to the disclosing party unless expressly prohibited from doing so by law, or by legal authority of competent jurisdiction.

8.3.  Both parties agree that either party will be entitled to seek an injunction prohibiting the disclosing party from any violation or threatened violation of this Section 8 of this Agreement without the necessity of proving damages or furnishing a bond or other security, to the fullest extent permitted by law.

9.     Representations and Warranties

9.1       Mutual Representations and Warranties. Each party represents and warrants to the other party that:

(a)                if it is an entity, it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;

(b)                it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;

(c)                the execution of this Agreement by its representative has been duly authorized by all necessary corporate or organizational action of such party; and

9.2       Additional Tail Representations, Warranties, and Covenants. Tail represents, warrants, and covenants to Customer that it will use commercially reasonable efforts to make the Services available at least [[ninety-nine and nine-tenths percent of the time (99.9%)]] (the “Services Warranty”). If the Services do not comply with such Services Warranty, Customer shall be entitled to a credit as set forth in the Exhibit A – Service Level Availability, attached hereto and incorporated herein by reference. 

9.3       Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to Tail that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Content so that, as received by Tail and used in accordance with this Agreement, such Customer Content does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable statute, law, rule, regulation, decree or ordinance (“Law”).

10.  Limitation of Liability and Warranty and Use Disclaimer 

10.1.       Use Disclaimer. Except as prohibited by law or expressly stated in this Agreement, all Services provided on or through the Website and Services and all links or other items related thereto are transmitted and distributed "as is" and to the fullest extent permitted at law without guarantees, representations, and warranties of any kind, either express or implied (by Law or otherwise), including, without limitation, that the Website and Services and/or its features and functions will be available for use or work as described.  There are no guarantees, representations, warranties and/or conditions regarding title, security, accuracy, acceptable quality, merchantability or fitness for a particular purpose or use with respect to the Website or the Services including but not limited to representations about the content or information accessible through the Services, that the Services meet your requirements or that the Services will be available at all times without interruption. 

10.2.       Limitation on Liability Amount. Subject to Section 10.3, Tail’s total aggregate liability arising out of or related to the Agreement, Website and Services is limited to the Subscription Fees Customer paid during the twelve (12) month period immediately prior to the initial event giving rise to such liability. In the event that the Subscription Fee is zero (e.g., the user is a Free User, as defined on the Order Form), Tail’s total liability shall not exceed one hundred dollars ($100.00).

10.3.       Limitation on Indirect Liabilities. Unless prohibited by applicable Law, and subject to section 10.4, neither party (nor its respective officers, directors, agents and employees), nor any party involved in creating, producing, delivering the Website and the Services, shall be liable for any punitive, exemplary, incidental, consequential, indirect, special damages or lost revenues, cost of replacement services, profits, savings or goodwill arising out of or relating to this Agreement, the Website or the Services. 

10.4.       Nothing in this Agreement excludes or limits the liability of either party for (i) fraud or fraudulent misrepresentations; (ii) its indemnification obligations under this Agreement; (iii) its infringement of the other party’s intellectual property rights; (iv) Customer’s payment obligations under this Agreement; or (v) matters for which liability cannot be excluded or limited under applicable Law.

11.   Indemnity

11.1.       Tail’s Indemnification Obligations. Tail will defend and indemnify Customer (“Customer Indemnified Party”) against  (“Claim(s)”) arising out of claims that the Website or Services, when used as specifically authorized by this Agreement) infringe such third party’s intellectual property rights. Tail  shall not settle any action, suit or proceeding in any manner that would impose any monetary or other obligation or restriction on Customer Indemnified Party or require Customer Indemnified Party to admit liability or wrongdoing without Customer’s prior written consent. Neither Tail nor Indemnified Party will unreasonably withhold his, her, its or their consent to any proposed settlement.

11.2.       Customer’s Indemnification Obligations. Customer will defend and indemnify Tail and its managers, members, officers, employees and agents (“Tail Indemnified Parties”, and with the Customer Indemnified Party, the “Indemnified Parties”)  against all Claims  to the extent arising out of: (i) Customer Content, (ii) Customer’s or End User’s use of the Services other than as specifically authorized by this Agreement, or (iii) as a result of Customer’s or any of its End User’s breach of any of its covenants, representations, warranties and/or obligations under this Agreement. Customer  shall not settle any action, suit or proceeding in any manner that would impose any monetary or other obligation or restriction on Tail Indemnified Parties or require Tail Indemnified Parties to admit liability or wrongdoing without Tail’s prior written consent. Neither the Customer Indemnified Parties nor the Tail Indemnified Parties will unreasonably withhold  their consent to any proposed settlement.

11.3.       Exclusive Remedy. This Section states each party’s obligation and exclusive remedy regarding the  third party claims described in this Agreement.

11.4.       Indemnification Procedures. The Indemnified Party will use commercially reasonable efforts to promptly notify the Indemnifying Party in writing of any Claim and cooperate with the Indemnifying Party at the Indemnifying Party’s sole cost and expense.  The Indemnifying Party will immediately take control of the defense and investigation of such Claim, and will employ counsel of its choice that is reasonably acceptable to the Indemnified Party, to handle and defend the same, at the Indemnifying Party’s sole cost and expense, provided, however, the Indemnifying Party shall have no authority to enter into any settlement or compromise on behalf of the Indemnified Party that would require the payment by the Indemnified Party of any money thereunder, or which contains non-financial terms which are intended to be binding on the Indemnified Party, without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed. The Indemnified Party’s failure to provide prompt notice under this Section will not relieve the Indemnifying Party of its obligations under this Section except to the extent that Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure.  The Indemnified Party may participate in and observe the proceedings at the Indemnified Party’s cost and expense.

11.5.       Notwithstanding anything to the contrary set forth in this Agreement, Tail shall have the right to control all Claims with respect to the Website and the Services, regardless of whether or not Customer is obligated to indemnify Tail with respect to such Claim (however, in the event such action involves a Claim for which Customer owes Tail an indemnity, then Tail shall (i) engage counsel reasonably acceptable to Customer to represent Tail in connection with such Claim, (ii) regularly invoice Customer for its costs in connection with such Claim and Customer shall promptly reimburse Tail for all such costs, (iii) keep Tail apprised of activity with respect to such action.

11.6.       The provisions of this Section will survive the expiration or termination of this Agreement and cover any Claim(s) tendered after expiration or termination of this Agreement to the extent such Claim(s) arose during the applicable Subscription Term and one party would owe the other party an indemnity with respect to such Claim if it had been tendered prior to expiration or termination of the Term.

12.  Contact Information and Notice

12.1.       Inquiries and Notice. Any Customer inquiries about this Agreement or the Services and any notices required to be delivered to Tail in writing should be sent to spencer@tailapp.ai.

12.2.       Notices to Customers. Tail may give notices related to the Website and Services that apply generally to Customers by e-mail or by posting on the Website or through the Services. Other notices to Customers under the Agreement must be in writing and sent either to the business mailing address or to the email address provided by the Customer in the login.

13.  Audit Right

13.1.       Customer shall maintain and use systems and procedures that allow Customer to accurately and completely track, document, and report Customer’s and its End Users’ use of the Services in compliance with the terms and conditions of this Agreement and of the accepted Order Form, and shall allow Tail to inspect such systems and/or audit the same (“Inspection(s)”).  Inspections may be performed by Tail or its designated agents. Tail shall provide at least ten (10) days prior written notice to Customer before the start of an Inspection and will conduct each Inspection during normal business hours. Customer shall provide and will require its Affiliates and End Users to provide their full cooperation and assistance with such Inspections and provide access to the applicable records and computers.

13.2    If an Inspection indicates that Customer’s installations, deployment, access of or provision of access to, or use of the Services is not in compliance with the scope of the license granted (“Overuse”), then in addition to all other remedies contemplated in this Agreement, Customer shall pay for all Overuse quantities at Tail’s then current list price plus any interest on past due amounts. If the Overuse is more than five percent (5%) of Customer’s license entitlements, then Customer shall also reimburse Tail for Tail’s reasonable cost of performing the Inspection.

14.  Miscellaneous

14.1.       Entire Agreement.  This Agreement, along with the Terms and Conditions of Use, the Privacy Policy and the accepted Order Form constitute, the full understanding of the parties with respect to the subject matter hereof and supersedes and cancels any and all other prior agreements, written or oral, between them relating to the subject matter hereof. Subject to any changes to this Agreement by Tail consistent with this Agreement and the Terms and Conditions of Use, this Agreement may not otherwise be amended except in a writing signed by both of the parties.

14.2.       Publicity. Customer agrees that Tail may include Customer’s name and logo in Tail’s customer list and in print and electronic marketing materials, with no compensation due to Customer for such use.

14.3.       Subcontractors. Tail may use subcontractors and service providers to provide the Services. Tail is responsible for any such subcontractors in their performance under this Agreement.

14.4.       Conflicting Terms. If there is a conflict between the documents that comprise the Entire Agreement, the documents will control in the following order: the accepted Order Form, this Agreement, the Privacy Policy and the Terms and conditions of Use. 

14.5.       Force Majeure.  Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, pandemics, and third party utility or Internet failures.

14.6.       Waiver of Provisions.  The terms, covenants and conditions of this Agreement may be waived only by a written instrument executed by the party waiving compliance.  The failure of either party at any time or times to require performance of any provision of this Agreement shall in no manner affect the right at a later date to enforce any future compliance with or performance of such provision or any of the other provisions hereof.  No waiver by any party of any condition or other breach of any provision, term or covenant in this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be or be construed as a further or continuing waiver of any such condition or the breach of any other provision, term or covenant in this Agreement.

14.7.       Severability.  If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future Law effective during the term of the Agreement, such provision shall be fully severable, and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision never comprised a part hereof, and the remaining provisions hereof shall remain in full force and effect.  Furthermore, in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as part of this Agreement a provision as similar in its terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.

14.8.       Relationship of the Parties.  Nothing in this Agreement, its provisions or the transactions, obligations and/or relationships contemplated hereby shall constitute either party to this Agreement as the agent, employee or legal representative of the other party hereto for any purpose whatsoever, except as specifically set forth herein.  This Agreement does not create and shall not be deemed to create a relationship of partners, joint venturers, associates or principal and agent between the parties hereto.  Each of the parties acknowledges that it is acting as a principal hereunder.

14.9     Assignment. Customer may not assign this Agreement, or assign or delegate any of its rights, interest or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Tail.  Tail shall be entitled to assign and delegate this Agreement, and/or assign or delegate any of its rights, interest or obligations hereunder without notice to, or consent from Customer.  This Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.

Exhibit A--Service Level Availability

All capitalized terms used but not defined herein shall have the meanings set forth in the Agreement. In the event of a conflict between the terms of the Agreement and those set forth in this Exhibit A, the terms of the Agreement shall govern with respect to the project identified herein

1.1                 Availability Requirement. Subject to the terms and conditions of this Agreement, Tail will use commercially reasonable efforts to make the Services available at least ninety-nine and nine-tenths percent (99.9%)each of the time as measured over the course of each calendar month during the Term (each such calendar month a “Service Period”), excluding unavailability as a result of any of the Exceptions described below (the “Availability Requirement”). For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its End Users to access or use the Services that is due, in whole or in part, to any:  (a) act or omission by Customer or any End User, or using Customer’s or an End User’s access to the Services in any manner that does not comply with this Agreement; (b) Customer’s failure to perform, or delay in performing, any of its obligations under this Agreement; (c) Customer’s or its End User’s internet connectivity; (d) a Force Majeure Event; (e) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by Tail pursuant to this Agreement; (f) Scheduled Downtime; or (g) disabling, suspension, or termination of the Services pursuant to Section 1.8 of the Agreement.

1.2                 Scheduled Downtime. Tail will use commercially reasonable efforts to give Customer at least five (5) days’ prior notice of all scheduled outages of the Services (“Scheduled Downtime”).

1.3                 Service Credits.  In the event Tail fails to meet the Availability Requirement specified below in any given Service Period (a “Service Level Failure”), Tail shall issue a credit to Customer on its next invoice for Services in an amount set forth below (each a “Service Credit”), provided that: (i) in no event will Service Credits for any single individual year of the Term exceed fifteen percent (15%) of the total Services fees that would be payable for that single individual year if no Service Level Failure occurred; and (ii) Tail has no obligation to issue any Service Credit unless Customer reports the Service Level Failure to Tail and requests a Service Credit within thirty (30) days of the end of the Service Period in which the Service Level Failure occurred. 

1.4                 In case of a Service Level Failure, the following table sets forth the Service Credit that Tail will provide to Customer on the next invoice for Services:

Uptime Percentage in a Service Period:             % of Monthly Services Fees to Be Credited       

99.9% or above                                                                                    0%

97.5% to 99.89%                                                                                  2%

97.0% to 97.49%                                                                                  4%

95% to 96.99%                                                                                     6%

Less than 95%                                                                                      10%

1.5 The remedies set forth in this Service Level Availability Exhibit are Customer’s only sole and exclusive remedies, and Tail’s only and sole obligations and liabilities, for any failure of the Services to meet the Availability Requirement.

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