Tailscale Main Service Agreement

Effective Date: 2024-02-19

This Main Service Agreement (“MSA”) between Tailscale Inc. and its Affiliates (“Tailscale,” “we,” “our” or “us”) and the customer identified in the relevant Order Form (defined below) (“Customer,” “you” or “your”) permits such Customer to purchase the Tailscale Solution (defined below) pursuant to Order Forms referencing this Agreement and includes any supplements and addenda referenced herein (collectively, the “Agreement”). This MSA shall govern Customers’ purchases of the Tailscale Solution from the effective date unless otherwise agreed in the Order Form. Each of Tailscale and you may also be referred to in this Agreement as a “party” or collectively as the “parties.”

1. Definitions.

Some capitalized terms are defined in this Section 1 and others are defined contextually elsewhere in the Agreement.

1.1 “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a party.

1.2 “Permitted User” means an individual human who is authorized by Customer to access and use the Tailscale Platform.

1.3 “Customer Data” means any data, information, records, files, communications and other content that is transmitted from one Customer Endpoint to one or more other Customer Endpoint(s) using the Tailscale Solution and can only be encrypted/decrypted by the Customer.

1.4 “Customer Endpoint” means a device of Customer or a Permitted User that has the Tailscale Client Software installed upon it.

1.5 “Documentation” means the online documentation, guidelines and policies provided by Tailscale in relation to the Tailscale Solution, including our service descriptions, Service Level Agreement (“SLA”), acceptable use policies, technical documentation, user guides and support documentation and any Updates thereto.

1.6 “Integrations” means any software application, functionality, website, product or service that will connect to or integrate with the Tailscale Solution or embed certain functionality into a third party platform or service, including via an API or SDK. You and your Permitted Users choose which Integrations to activate with respect to your use of the Tailscale Solution.

1.7 “Order Form” means an ordering document regarding the Tailscale Solution to be provided under this Agreement that is entered into between Tailscale or any of its Affiliates and Customer, or between Tailscale and any of Customer’s Affiliates.

1.8 “Tailscale Client Software” means Tailscale’s proprietary software that is installed on Customer Endpoints and any Updates thereto.

1.9 “Tailscale Platform” means Tailscale’s proprietary Internet-accessible software and service that is hosted and maintained by Tailscale and any Updates thereto.

1.10 “Tailscale Solution” means the totality of Tailscale’s proprietary service that is hosted and maintained by Tailscale and any updates thereto, and includes the Tailscale Platform and Tailscale Client Software, as well as any other software, information or services related thereto provided by Tailscale to Customer, all as and to the extent listed on an Order Form.

1.11 “Updates” means any version updates, bug fixes, patches, error corrections, and other similar software or content updates to the Tailscale Solution, Tailscale Platform, Tailscale Client Software, or Documentation.

2. Service Terms.

2.1 Provision and Access. In accordance with the terms and conditions of this Agreement, Tailscale shall grant you and your Permitted Users access to and use of the Tailscale Solution as detailed in Documentation solely for your internal business purposes pursuant to a duly-executed Order Form. This includes a limited, revocable, worldwide, non-exclusive, non-transferable, license to download and use the Tailscale Client Software and Documentation on Customer Endpoints solely in connection with your use of the Tailscale Solution pursuant to a duly-executed Order Form. You agree that your purchase of the Tailscale Solution is not contingent on the delivery of any future features or functionality, or dependent on any oral or written public comments made by us regarding future functionality or features.

2.2 Ownership. As between the Customer and Tailscale, the Tailscale Solution and Documentation, and all intellectual property rights therein or relating thereto, are and shall remain the exclusive property of Tailscale. Nothing in this Agreement shall be interpreted to provide Customer with any rights in the foregoing, except the limited right to use the Tailscale Solution subject to the terms of this Agreement. You may not (i) misappropriate or otherwise commercially exploit any part of the Tailscale Solution; (ii) modify, disassemble, decompile, reverse engineer, copy, reproduce, or create derivative works from the Tailscale Solution; (iii) damage or tamper with any part of the Tailscale Solution; (iv) breach any Security Measure (defined in the DPA); or (v) access the Tailscale Solution to compete with Tailscale or build a competitive product, service or solution. For the avoidance of doubt, nothing in this Agreement shall prohibit Customer from independently using any open source software that may be included or licensed as part of the Tailscale Solution.

2.3 Customer Data. Customer retains all right, title and interest including all intellectual property rights in and to Customer Data. You grant us a limited, nonexclusive, worldwide, royalty-free right to transmit Customer Data solely to enable us to provide the Tailscale Solution to you during the Term subject to the terms of this Agreement. Subject to the limited license granted herein, Tailscale acquires no right, title or interest from you or your licensors under this Agreement in or to any Customer Data. For the avoidance of doubt, you and your Permitted Users choose what Customer Data to transmit using the Tailscale Solution; Tailscale does not have access to, use of or control over Customer Data, and only you can encrypt/decrypt Customer Data. Tailscale has no general obligation to monitor, and does not monitor, your Customer Data.

2.4 Customer Responsibilities. You are responsible for, and for any liability resulting from: Customer Data; your use of the Tailscale Solution; all actions taken through your account, whether or not actually or expressly authorized by you; timely accepting and installing Updates; and acquiring, maintaining and securing your own hardware, software, networks and computer systems, which are not included in the Tailscale Solution. You are also responsible for the activity of your Permitted Users and the confidentiality of your and their login credentials. Customer will promptly notify Tailscale of any actual or suspected unauthorized use of the Tailscale Solution. Tailscale reserves the right to suspend, deactivate, or replace a Permitted User account if it determines that such account may have been used for an unauthorized purpose or otherwise in violation of this Agreement. Any breach of this Agreement by your Permitted Users shall be deemed to be a breach by Customer.

2.5 Third Party Services. The Tailscale Solution may contain, enable or link to third party websites, applications, services or content, including via Integrations (collectively “Third Party Services”). We do not own or operate the Third Party Services and cannot guarantee their continued availability or compatibility. We have not reviewed, and cannot review, all of the material made available through Third Party Services. We do not warrant or support the Third Party Services. The availability of such links through the Services does not represent, warrant or imply that we endorse any Third Party Services or any content, materials, opinions, goods or services available on or through them. Our Documentation does not apply to Third Party Services. Your decision to visit or link to a Third Party Service, or to activate an Integration, is your decision and your responsibility. We are not responsible for any breach of Customer Data or any data or information that is transmitted to, or accessed by, a Third Party Service. If you choose to use an Integration with the Tailscale Solution, you grant us permission to transmit data to the Integration and/or to allow the Integration to access data as necessary for the interoperation of that Integration with the Tailscale Solution.

3. Payments.

3.1 Fees. In consideration for the rights granted to Customer and the performance of Tailscale’s obligations under this Agreement, Customer agrees to pay Tailscale the amounts set forth in the applicable Order Form (the “Fees”). Payments are non-cancelable, non-transferable, non-refundable, and not subject to acceptance, except as expressly stated elsewhere in the Agreement.

3.2 Renewals. Unless set forth otherwise in your Order Form, Order Forms will automatically renew for subsequent terms of twelve (12) month periods (each a “Renewal”) unless either party gives written notice of non-renewal at least 30 days prior to the end of the then-relevant Order Form term. During each Renewal Term, the per-unit pricing will increase up to a maximum of 5% above the applicable Order Form pricing in the prior term, unless Tailscale provides you notice of different pricing at least 45 days prior to the applicable Renewal. Notwithstanding anything to the contrary, renewal of any free, complimentary, promotional or one-time priced services will renew at our applicable list price in effect at the time of the applicable Renewal.

3.3 Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes (collectively “Taxes”). Customer will be responsible for and pay all applicable Taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than Taxes based on the net income or profits of Tailscale. If Customer is a tax-exempt entity or claims exemption from any Taxes hereunder, Customer will provide a certificate of exemption upon agreement to this Agreement and, after receipt of valid evidence of exemption, Tailscale will not charge Customer any Taxes from which Customer is exempt.

3.4 Invoices. Tailscale will invoice you as of the first day of each payment period for the Fees and Taxes due for that payment period, as set forth in the applicable Order Form. Unless set forth otherwise in your Order Form, all invoices are issued in United States dollars, all payment periods are on an annual basis, and each invoice is due and payable thirty (30) days from the invoice date according to the payment instructions provided on the invoice. You may add a purchase order number to an invoice, if necessary for your internal payment processing requirements. If Customer disputes any amount set forth in any invoice, it must notify Tailscale within fifteen (15) days of the invoice date or will be deemed to have waived its right to dispute such amount. Customer agrees to work in good faith with Tailscale to resolve any payment dispute.

3.5 Delinquent Accounts. In the event of late payments or non-payments (collectively, “Delinquent Accounts”), Tailscale reserves the right to suspend Customer’s access to and use of the Tailscale Solution and/or charge interest on any past-due amounts until those amounts are paid in full, to be decided by us in our sole discretion. If, after working in good faith with the Customer, Tailscale is not successful in resolving the Delinquent Account, any interest will accrue on past due amounts at the rate of one and one half percent (1.5%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Tailscale. Customer will reimburse Tailscale for the reasonable costs of collection, including reasonable fees and expenses of attorneys.

4. Term; Termination.

4.1 Term. This Agreement will remain in effect commencing as of the effective date (indicated above the signature block below) and continuing until the earlier of (i) the natural expiration or termination of all Order Forms under this Agreement or (ii) the termination of this Agreement by one of the parties as set forth in this Agreement. The full duration of this Agreement is the “Term.”

4.2 Termination for cause. Either party may terminate this Agreement immediately upon written notice if the other party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach. In addition, if a party becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation, insolvency, or for the appointment of a receiver, or makes an assignment for the benefit of any creditor, then the other party may terminate this Agreement immediately upon written notice. If Customer terminates this Agreement for cause under this Section 4.2, Tailscale will refund to you on a pro rata basis any prepaid Fees covering the remainder of your Order Form term after the effective date of termination. If Tailscale terminates this Agreement for cause, Customer will remain liable to pay all Fees outstanding on the effective date of termination of the Agreement, including any unpaid Fees covering the remainder of the term of the Agreement had it not been terminated.

4.3 Effect of termination. Upon termination of this Agreement, Customer’s right to access and use the Tailscale Solution will immediately end, and Customer and its Permitted Users will immediately cease all use of the Tailscale Solution. We will have no further obligation to maintain or provide you with access to the Tailscale Solution, including for transition purposes, and may thereafter, unless legally prohibited, delete any associated data in our systems or otherwise in our possession or under our control pursuant to our standard data retention policies and procedures. The parties also will cease any and all use of Confidential Information belonging to the other party, and return or destroy any such Confidential Information upon request. In no event will any termination or expiration relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Expiration or termination of this Agreement will not limit either party from pursuing any other remedies available to it, including injunctive relief, nor will any such expiration or termination relieve either party’s obligation to pay all amounts and, and in the case of Customer, Fees that have accrued or are otherwise owed by the parties under this Agreement up to the effective date of termination.

4.4 Survival. The rights and obligations of Tailscale and Customer contained in the following sections will survive expiration or termination of this Agreement: Sections 3 (Payment), 4.3 (Effect of Termination), 4.4 Survival), 6 (Confidentiality), 7.3 (Warranty Disclaimer), 11 (Indemnification), 12 (Limitations of Liability), and 14 (Miscellaneous).

5. Data Protection.

5.1 Data Processing Addendum. The parties expressly incorporate by reference the Tailscale Data Processing Addendum (“DPA”) for compliance with global laws and regulations related to the processing of Personal Data (defined in the DPA) in connection with the Tailscale Solution and this Agreement.

5.2 Security. Tailscale has adopted and will maintain administrative, technical, physical, and organizational Security Measures (defined in the DPA) as detailed in Schedule D of our DPA.

5.3 Usage Data. Customer acknowledges that Tailscale securely processes information, data and metadata resulting from the ordinary course operation and use of the Tailscale Solution (“Usage Data”) for limited internal business purposes related to the ongoing operation, development and protection of the Tailscale Solution, including product improvement, research, security and fraud prevention, debugging, analytics, billing and customer account management. Tailscale processes Usage data for such purposes as an independent data controller or business in accordance with applicable Data Privacy Laws (defined in the DPA). Customer acknowledges and agrees that Tailscale may process Usage Data for such purposes, and that such purposes are compatible with, reasonably necessary, and proportionate to providing the Tailscale Solution to Customer. To the extent Usage Data includes any identifying information, Tailscale will de-identify and/or aggregate the Usage Data whenever possible. For the avoidance of doubt, Usage Data does not include Customer Data.

5.4 Acknowledgement. You acknowledge that: (a) Tailscale is not a “Business Associate” as defined in HIPAA and the Tailscale Solution is not HIPAA compliant; (b) Tailscale is not a “bank service provider” as defined in the Bank Service Company Act; (c) Tailscale is not PCI DSS compliant; (d) Tailscale does not act as a “school official” as defined under FERPA, and customers are solely responsible for using the Tailscale Solution only for non-FERPA covered purposes. As a reminder, you and your Permitted Users choose what Customer Data to transmit using the Tailscale Solution; Tailscale does not have access to, use of or control over Customer Data. If you choose to transmit any sensitive information (including information associated with (a)-(d) above, any special categories of data as enumerated in GDPR Article 9(1), and any tax identification numbers, Social Security numbers, driver’s license numbers, or other similar government identification numbers), you are solely responsible for ensuring that suitable safeguards are in place prior to transmitting or processing such information using the Tailscale Solution.

6. Confidentiality.

6.1 Definition. “Confidential Information” means all information disclosed by a party to the other party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Tailscale Confidential Information includes: the software for the Tailscale Solution, whether in source or executable code; Research (as defined in Section 8.2) materials and information; nonpublic business, product, marketing, pricing and sales information; audit materials and reports; internal policies, procedures and controls; and the results of any performance tests of the Tailscale Solution. Confidential Information does not include any information that: (i) is or becomes generally known to the public through no breach of any obligation owed to the disclosing party; (ii) was known to the receiving party prior to its disclosure by the disclosing party without breach of any obligation owed to the disclosing party; (iii) is received from a third party without knowledge of any breach of any obligation owed to the disclosing party; or (iv) is independently developed by the receiving party. For the avoidance of doubt, the parties acknowledge that Personal Data (defined in the DPA) is not considered Confidential Information and the terms of the DPA, not this Section 6, shall govern the parties’ obligations with respect to Personal Data.

6.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The parties will comply with the terms of any nondisclosure agreement between Customer and Tailscale. If no such agreement exists, the receiving party will: (a) use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care); (b) not use or disclose any Confidential Information of the disclosing party for any purpose outside the scope of this Agreement; and (c) limit access to Confidential Information of the disclosing party, except as otherwise authorized by the disclosing party in writing, to only those employees, agents and contractors (including its Affiliates, legal counsel, auditors and accountants) who (i) need that access for purposes consistent with this Agreement and (ii) are bound to obligations of confidentiality that are not materially less protective of the Confidential Information than those contained in this Agreement.

6.3 Compelled disclosures. Notwithstanding the foregoing, Confidential Information may be disclosed to the extent required by any court or governmental agency. Before disclosing such information, the receiving party must provide the disclosing party with sufficient advance notice of the request for the information to enable the disclosing party to exercise any rights it may have to challenge or limit the request to receive such Confidential Information.‍ If the receiving party is compelled by law to disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, and the disclosing party is not contesting the disclosure, the disclosing party will reimburse the receiving party for its reasonable cost of compiling and providing secure access to that Confidential Information.

6.4 Availability of injunctive relief. The parties acknowledge that disclosure of any Confidential Information in violation of this Section 6 will give rise to irreparable injury to the owner of such information that is not adequately compensated by damages. Accordingly, each party will be entitled to equitable relief, including injunctive relief and specific performance against the breach or threatened breach of the undertakings in this Section 6, in addition to any other legal remedies which may be available.

7. Representations, Warranties & Covenants.

7.1 Mutual commitments. Each party to this Agreement represents that its signatory is duly authorized to enter into this Agreement and each Order Form on such party’s behalf. Each party agrees to comply with all applicable laws and regulations with respect to its activities related to the Tailscale Solution and this Agreement.

7.2 Tailscale commitments. In addition to the representations, warranties and covenants elsewhere in this Agreement, Tailscale further represents, warrants and covenants that: (a) the Tailscale Solution will operate in substantial conformity with the Documentation; (b) Tailscale will not materially decrease the overall functionality of the Tailscale Solution during each Order Form term; (c) Tailscale will maintain Security Measures that are at least as robust as those included DPA as of the effective date of this Agreement; (d) the Tailscale Solution will be free from any “copyleft” open source license that would require the open licensing of Customer Data or Customer Confidential Information; and (e) Tailscale will not make any change to the Tailscale Solution that would enable it to decrypt Customer Data. For any breach of a warranty in this Section 7.2, Customer’s exclusive remedies are for Tailscale to correct the defects in the Tailscale Solution and those described in the “Termination” section above.

7.3 Warranty disclaimer. Except as expressly provided for in this Agreement and the SLA (if and as applicable to you), and to the maximum extent permitted by law, the Tailscale Solution is provided warranty free, on an “as is” and “as available” basis. We make no further representations, warranties or conditions of any kind, whether express, implied, collateral or statutory, including any warranties of merchantability, merchantable quality, compatibility, title, security, reliability, non-infringement, accuracy, quality, completeness, quiet enjoyment, integration or fitness for a particular purpose or use. We further disclaim any and all warranties or conditions arising out of course of dealing or usage of trade. Some states or jurisdictions do not allow the limitation or exclusion of certain warranties, or the exclusion or limitation of certain damages. If you reside in one of these states or jurisdictions, the above limitations or exclusions may not apply to you.

8. Feedback; Research.

8.1 Feedback. If you or any of your Permitted Users send us feedback or suggestions regarding the Tailscale Solution, there is a chance we will use it, although we are not obligated to use it. If we choose to implement suggestions or feedback, then it becomes part of the Tailscale Solution and our property. Unless in the context of Research, all suggestions or feedback will be treated as non-confidential and non-proprietary and we will not be liable for any use or disclosure of any suggestions or feedback, nor will the submitter be entitled to any compensation for our use of their suggestion or feedback.

8.2 Research. From time to time you or certain of your Permitted Users may be invited to participate in studies, focus groups, workshops, beta testing, or other research or testing of features, products or services related to the Tailscale Solution, some of which may not yet be ready for general release (“Research”). Participation is completely voluntary. We are not forming a partnership, joint venture, agency, or employment relationship with you or your Permitted Users just by virtue of participating in Research. We are under no obligation to generally release the feature or functionality subject to Research, or to provide any special maintenance, technical support, or other service or support for Research. All materials associated with Research are provided on an “as is” and “as available” basis, without any warranties of any kind, express or implied.

9. Publicity.

Tailscale may refer to you as one of Tailscale’s customers for marketing or promotional purposes. You grant us the right to use your name and logo solely for such purposes. We will adhere to any trademark guidelines that you provide to us, and any goodwill that arises from our use of your name or logo shall inure solely to your benefit. In addition, you agree to serve as a reference account for Tailscale. We will provide you with reasonable notice and obtain your consent before scheduling any reference calls. Neither party will issue a press release about Customer becoming a Tailscale customer or a case study about Customer’s experience with the Tailscale Solution without the prior written consent of the other party (not to be unreasonably withheld).

10. Disputes; Choice of Law.

This Agreement will be governed by and interpreted in accordance with the internal laws of the states or countries specified in Schedule A, without regard to conflicts of laws principles. In the event of any controversy or claim arising out of or relating to this Agreement, or its breach or interpretation, the parties will submit to the exclusive jurisdiction of and venue in the applicable courts or arbitration bodies specified in the table below. Each party waives all defenses of lack of personal jurisdiction and inconvenient forum. Notwithstanding the foregoing, this choice of jurisdiction does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. The parties hereby waive their right to jury trial with respect to all claims and issues arising under, in connection with, touching upon or relating to this Agreement.

11. Indemnification.

11.1 Indemnification by Tailscale. Tailscale will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party (other than a Customer Affiliate) alleging that the Tailscale Solution infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Tailscale in writing of, a Claim Against Customer. In the event that our right to provide the Tailscale Solution is threatened or enjoined, we may in our sole discretion either obtain the right to continue providing the Tailscale Solution, or replace or modify the Tailscale Solution so that it becomes non-infringing, or, if such remedies are not reasonably available, terminate this Agreement upon thirty (30) days written notice without liability to you and refund any prepaid fees covering the Tailscale Solution on a pro-rata basis following the effective date of such termination. The above defense and indemnification obligations will not apply if the Claim Against Customer arises from (i) Customer’s use of the Tailscale Solution in an unlawful manner or in violation of the Agreement, (ii) Customer’s failure to timely install or use Updates, (iii) Customer Data, (iv) Customer’s instructions, specifications or requirements to Tailscale, or (v) a Third Party Service or configuration provided by Customer and used with the Tailscale Solution.

11.2 Indemnification by Customer. Customer will defend Tailscale and its Affiliates against any claim, demand, suit or proceeding made or brought against Tailscale by a third party (other than a Tailscale Affiliate): (a) alleging that the combination of a Third Party Service or configuration provided by Customer and used with the Tailscale Solution infringes or misappropriates such third party’s intellectual property rights, and the Tailscale Solution or use thereof would not infringe without such combination; or (b) arising from (i) Customer’s use of the Tailscale Solution in an unlawful manner or in violation of the Agreement, (ii) Customer’s failure to timely install or use Updates, (iii) Customer Data, or (iv) Customer’s instructions, specifications or requirements to Tailscale; ((a)-(b) each a “Claim Against Tailscale”); and will indemnify Tailscale from any damages, attorney fees and costs finally awarded against Tailscale as a result of, or for any amounts paid by Tailscale under a settlement approved by Customer in writing of, a Claim Against Tailscale. The above defense and indemnification obligations will not apply if the Claim Against Tailscale arises from Tailscale’s material breach of this Agreement.

11.3 Indemnification procedures. Each party’s respective defense and indemnification obligations are contingent upon: (a) the indemnified party providing the defending party with prompt written notice of an eligible claim (no more than thirty (30) days after receipt of notice of the claim), as well as reasonable cooperation, assistance and information in the defense and settlement of any claim; and (b) the defending party having sole authority to defend or settle such claim (provided that the defending party will not enter into a settlement that is not confidential, requires an admission of fault, or imposes non-monetary relief without the indemnified party’s prior written consent, which shall not be unreasonably withheld). The indemnified party will have the right to participate in the defense with counsel of its own choosing at its own expense, provided that such representation does not interfere with the defending party’s right to control the defense.

11.4 Exclusive remedy. This Section 11 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section notwithstanding anything to the contrary in this Agreement.

12. Limitation of Liability.

The following provisions have been negotiated by the parties and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

12.1 Notwithstanding anything in the Agreement to the contrary and to the maximum extent permitted by law, in no event shall either party be liable to the other party for any incidental, special, exemplary, consequential, or punitive damages, whether or not such party has been advised of the possibility of such damages, and whether any claim for recovery is based on theories of contract, warranty, tort (including negligence and strict liability), or otherwise.

12.2 Unless set forth otherwise in your Order Form, and except for the excluded liabilities and DPA liabilities, notwithstanding anything in the Agreement to the contrary and to the maximum extent permitted by law, in no event shall either party’s aggregate liability to the other in connection with this Agreement or Customer’s access to and use of the Tailscale Solution exceed the total fees paid by Customer for the Tailscale Solution under which the claim arose in the twelve (12) month period preceding the claim or action, regardless of the form or theory of the claim or action.‍ For greater certainty, the existence of one or more claims under this Agreement will not increase this maximum liability amount.

12.3 For purposes of this Section 12, the “excluded liabilities” are any liabilities arising from: (a) indemnification obligations under Section 11 (Indemnification); (b) breach of Section 6 (Confidentiality); (c) breach of Section 2 (Service Terms); or (d) Customer’s obligation to pay all outstanding Fees.

13. Export Compliance.

Each party agrees to comply with: all relevant export and import laws in connection with this Agreement; and all laws relating to embargoes or sanctions, including the lists maintained by the United Nations Security Council, the Canadian Government, the United States Government (e.g., the U.S. Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list, and the U.S. Department of Commerce’s Entity List), European Union or its member states, or other applicable government authority (collectively “Sanctions”). By accessing and using the Tailscale Solution, you represent, warrant, and covenant that you and your Permitted Users are not: a party on any Sanctions list; owned or controlled by any such party; or located in (or a national of) a country or jurisdiction on any Sanctions list. Any attempt to access or use the Tailscale Solution in breach of the foregoing is considered a material breach of the Agreement. We reserve full rights to change or limit access to the Tailscale Solution as necessary to ensure compliance with applicable laws and regulations.

14. Miscellaneous.

14.1 Modifications. From time to time, Tailscale may modify this Agreement. Unless otherwise specified by Tailscale, changes become effective for Customer upon renewal of the then-current Order Term or upon the effective date of a new Order Form after the updated version of this Agreement goes into effect. Tailscale will use reasonable efforts to notify Customer of the changes through communications via Customer’s account, email or other means. Customer may be required to click to accept or otherwise agree to the modified Agreement before renewing an Order Form or upon the effective date of a new Order Form, and in any event continued use of the Tailscale Solution after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.

14.2 Assignment. Neither party may assign or transfer this Agreement, in whole or in part, without the prior written consent of the other party (not to be unreasonably withheld) except in the event of either: (1) the direct or indirect acquisition of either (a) the majority of voting stock of such party or (b) all or substantially all of the assets of such party, by another entity in a single transaction or a series of transactions; or (2) the merger of such party with another entity. Any attempted assignment or transfer in violation of this Section 14.2 will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.

14.3 Notice. All notices required to be sent to Tailscale under this Agreement must be in writing and sent to:

    Tailscale Legal Department
    100 King Street West
    Suite 6200
    1 First Canadian Place
    Toronto ON M5X 1B8, Canada

with a copy to: legal@tailscale.com

All notices required to be sent to Customer under this Agreement must be in writing and sent to the mailing address and email address indicated on Order Forms. If no address is listed for Customer, notice to Customer will be effective if given to the last known address. Notice must be sent by registered mail, return receipt requested, or via an internationally recognized express mail carrier (postage prepaid, return receipt requested), with a copy communicated by email. Notice will be deemed given and received: for registered mail or express mail, on the business day following the date of return receipt; for email, on the business day following day of actual delivery, unless there is a specific notice that it was not received on the day of actual delivery thereof. Nothing herein shall constitute a waiver of formal requirements for service of process for initiating litigation or arbitration.

14.4 No third party beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories; there are no third party beneficiaries, and only the parties may enforce this Agreement.

14.5 Relationship of the parties. Nothing in this Agreement will be deemed to create an agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship of any kind between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.

14.6 Waiver and severability. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. This Agreement operates to the fullest extent permissible by law. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.

14.7 Titles and headings. The section titles and headings are for convenience only and have no legal or contractual effect. The word “will” shall be construed to have the same meaning as “shall.” The words “include,” “includes,” and “including” will be deemed to be followed by “without limitation.” The word “or” will not be exclusive. The phrase “to the extent” will be construed to mean the degree to which a subject or other matter extends, and such a phrase will not simply mean “if.” Where a word is defined herein, references to the singular will include references to the plural and vice versa. All references to “days” will be deemed to refer to calendar days unless otherwise specifically provided. All references to “$” and “dollars” will be deemed to refer to United States currency unless otherwise specifically provided​​.

14.8 Customer Affiliates. Permitted Users of Customer Affiliates may use the Tailscale Solution as Permitted Users of Customer. In such a case, Customer shall remain fully responsible for such Affiliates’ acts and omissions to this Agreement. Alternatively, a Customer Affiliate may enter into its own Order Form(s) as mutually agreed with Tailscale. In this alternative case, by entering into a separate Order Form your Affiliate agrees to be bound by the terms of this Agreement and treated as the “Customer.” Neither Customer nor any of its Affiliates have any rights under each other’s Order Forms, and a breach or termination of any Order Form is not a breach nor termination under any other.

14.9 Entire agreement. This Agreement constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements, written or oral, concerning its subject matter. Notwithstanding any language to the contrary, no terms or conditions stated in any software, onboarding, support, marketing or other materials, will be incorporated into or form any part of this Agreement, and all such supposed terms or conditions shall be null and void.

14.10 Order of precedence. To the extent of any conflict or inconsistency between the provisions of this Agreement, the following order of precedence will apply: (1) the Order Form and any applicable supplement or addendum; (2) the DPA and SLA; and (3) this Agreement. Any terms and conditions stated on a purchase order or similar document issued by Customer for payment purposes shall be null and void.

14.11 English language. It is the express wish of the Parties that the Agreement and all related documents be drawn up in English. C’est la volonté expresse des Parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.

14.12 Execution. The parties may execute any documents hereunder in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement. The parties will be bound by signatures made by hand or electronic means, which may be transmitted to the other party by mail, hand delivery, email and/or any electronic method and will have the same binding effect as any original ink signature.

SCHEDULE A: Choice of Law