Tailscale

Last updated: March 30, 2020

These Tailscale Terms of Service (together with the Order Form, this “Agreement”) govern Customer’s access to and use of the Tailscale Solution. This Agreement forms a binding legal agreement between Tailscale Inc. (“Tailscale”, “us”, “we”, “our”) and Customer. The term “Customer” refers to the organization that Customer represents in agreeing to this Agreement. If Customer’s account is being set up by someone who is not formally affiliated with an organization, Customer is the individual creating the account. The “Parties” refer to Tailscale and Customer and “Party” refers to each of Tailscale and Customer.

BY USING THE TAILSCALE SOLUTION, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 14(k). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE TAILSCALE SOLUTION.

CUSTOMER REPRESENTS AND WARRANTS TO TAILSCALE THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE TAILSCALE SOLUTION ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO TAILSCALE THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.

This Agreement is entered into the earlier of (the “Effective Date”): (a) the date Customer first uses any part of the Tailscale Solution; and (b) the date Customer agrees to be bound by this Agreement.

Definitions.

As used in this Agreement, the following capitalized words have the meaning set out below:
1. “Affiliate” means, with respect to a Party, any corporation or other legal entity which is directly or indirectly controlling or controlled by, or under common control with that Party. As used in this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation or legal entity.
2. “Applicable Laws” means applicable statutes, by-laws, rules, regulations, orders, ordinances or judgments, in each case, of any Governmental or Regulatory Authority.
3. “Customer Content” means any data, information, content, records, and files, including Personal Information, that is encrypted and transmitted from one Customer Endpoint to one or more other Customer Endpoint(s).
4. “Customer Data” means any data, information, content, records, and files, including Personal Information, that Customer (or any of its Permitted Users) loads, makes available to and is accessed by, transmits to or enters into the Tailscale Solution, including the Customer Content.
5. “Customer Endpoint” means a device of Customer or a Permitted User that has the Tailscale Software installed upon it.
6. “Governmental or Regulatory Authority” means any national, provincial, state, county, municipal, quasi-governmental or self-regulatory department, authority, organization, agency, commission, board, tribunal, regulatory authority, dispute settlement panel or body, bureau, official, minister, Crown corporation, or other law, rule or regulation-making entity having jurisdiction over Tailscale, Customer, the Services, the Customer Data or any other person, property, transaction, activity, event or other matter related to this Agreement, including subdivisions of, political subdivisions of and other entities created by, such entities.
7. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
8. “Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
9. “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
10. “Order Form” means any order form that references this Agreement and that is agreed to by the Parties.
11. “Personal Information” means information about an identifiable individual or information that is subject to applicable privacy or data protection laws.
12. “Services” means the Tailscale Portal and the Support Services (or any part thereof).
13. “Tailscale Metadata” means the metadata that is generated by the Tailscale Software residing on the Customer Endpoints resulting from the processing of the Customer Data and that results from the ordinary course of the operation of the Tailscale Software.
14. “Tailscale Portal” means services provided over the Internet through which Tailscale makes available the web-based portal as described in an Order Form and any Modification thereof.
15. “Tailscale Software” means the Tailscale software product(s) described in an Order Form in binary form (or in forms deemed appropriate at the sole discretion of Tailscale).
16. “Tailscale Solution” means the Services and the Tailscale Software.
Tailscale Solution
1. Provisioning of the Tailscale Portal. Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, Tailscale will make the Tailscale Portal available to Customer on the terms and conditions set out in this Agreement during the Term for the purposes as set out in an Order Form.
2. License to the Tailscale Software.
  1. Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, Tailscale grants to Customer a non-exclusive, non-transferable, and limited license to install, operate and use the Tailscale Software during the Term on Customer’s devices solely for the purposes set out in the Order Form. Customer’s use of the Tailscale Software will be subject to any limitations described in this Agreement, in the documentation accompanying the Tailscale Software, or as otherwise agreed in writing by the Parties.
  2. Customer may sublicense the rights under Section 2(b)(i) above to Permitted Users solely for the purposes set out in such Section.
3. Restrictions on Use. Customer acknowledges and agrees that it is responsible for all use by Permitted Users of the Tailscale Solution. Customer will ensure that all use by Permitted Users of the Tailscale Solution is in compliance with this Agreement and any guidelines and policies published by Tailscale and made available to Customer from time to time. Without limiting the generality of any of the foregoing, Customer will not itself, and will not permit others to:
  1. sub-license, sell, rent, lend, lease or distribute the Tailscale Solution or any Intellectual Property Rights therein or otherwise make the Tailscale Solution available to the third parties other than Permitted Users;
  2. use the Tailscale Solution to permit timesharing, service bureau use or commercially exploit the Tailscale Solution;
  3. use or access the Tailscale Solution: (A) in violation of any Applicable Law or Intellectual Property Right; (B) in a manner that threatens the security or functionality of the Tailscale Solution, including by taking any action that imposes, or that may impose, in Tailscale’s discretion, an unreasonable or disproportionately large load on Tailscale’s systems or infrastructure; or (C) for any purpose or in any manner not expressly permitted in this Agreement;
  4. use the Tailscale Solution to create, collect, transmit, store, use or process any Customer Data:
    1. that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
    2. that Customer does not have the lawful right to create, collect, transmit, store, use or process;
    3. that violates any Applicable Laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any third party (including any moral right, privacy right or right of publicity);
  5. except for any Updates to the Tailscale Software installed by Customer pursuant to Section 7(a), Modify the Tailscale Solution;
  6. attempt to reverse engineer, de-compile or disassemble the Tailscale Solution;
  7. remove or obscure any proprietary notices or labels on the Tailscale Solution, including brand, copyright, trademark and patent or patent pending notices;
  8. access or use the Tailscale Solution for the purpose of building a similar or competitive product or service; or
  9. perform any vulnerability, penetration or similar testing of the Tailscale Solution.
4. Suspension of Access; Scheduled Downtime; Modifications. Tailscale may from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity under this Agreement:
  1. suspend Customer’s access to or use of the Tailscale Solution or any component thereof:
    1. for scheduled maintenance;
    2. due to a Force Majeure;
    3. if Customer or any Permitted User violates any provision of this Agreement, including, for greater certainty, any of the restrictions set out in Section 2(c) above;
    4. to address any emergency security concerns; or
    5. if required to do so by a Governmental or Regulatory Authority or as a result of a change in Applicable Law; and
  2. Modify the Tailscale Solution; provided that the Tailscale Solution continues to materially conform to the description set forth in the Order Form.
5. Subcontracting. Tailscale may engage third parties to provide the Tailscale Solution.
Ownership; Reservation of Rights
1. Except as specifically set forth in this Agreement, Customer retains all right, title and interest including all Intellectual Property Rights in or to the Customer Data. Customer grants to Tailscale a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to:
  1. transmit Customer Content through the Tailscale Solution;
  2. access, collect, use, process, store, disclose and transmit all other Customer Data to: (A) provide the Tailscale Solution; (B) improve and enhance the Tailscale Solution and its other offerings; and (C) produce data, information or other materials that do not identify or relate to a particular individual or company (such data, information and materials, the “Aggregated Data”).
2. Tailscale may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind.
3. Tailscale or its licensors retain all rights, title and interest including all Intellectual Property Rights in and to: (i) the Services; (ii) the Tailscale Metadata; (iii) anything used, developed or delivered by or on behalf of Tailscale under this Agreement; and (iv) any Modifications to the foregoing. Tailscale grants Customer a nonexclusive, worldwide, royalty-free, sublicensable, and fully paid-up right during the Term to access, collect, use, process, store, disclose and transmit Tailscale Metadata in connection with its access and use of the Tailscale Solution.
4. All rights not expressly granted by Tailscale to Customer under this Agreement are reserved.
Privacy

Customer understands that Personal Information, including the Personal Information of Permitted Users, will be treated in accordance with Tailscale’s privacy policy located at https://tailscale.com/privacy-policy (the “Privacy Policy”).
Customer User Account; Responsibility for Permitted Users
1. Upon Customer’s request, Tailscale will: (i) issue one or more accounts (each, a “Customer User Account”) to Customer for use by Customer and all individuals who are employees or contractors of Customer that Customer wishes to have access to and use of the Tailscale Solution (each, a “Permitted User”); and (ii) designate one or more Customer User Accounts as administrator accounts that provides Customer with the capability to administer, maintain, and manage certain features of the Tailscale Solution through the Tailscale Portal (such account, an “Administrator Account”). In registering for a Customer User Account, Customer will ensure that Permitted Users only use the Tailscale Solution through a Customer User Account. Customer will not allow any Permitted User to share the Customer User Accounts with any other person.
2. Customer is responsible for identifying and authenticating all Permitted Users and for Permitted Users’ use of the Tailscale Solution in compliance with this Agreement.
3. 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 Customer User Account if it determines that a Customer User Account may have been used for an unauthorized purpose.
Support

Tailscale will provide Customer with technical support for the Tailscale Solution (“Support Services”) via: (a) email at the email address(es) indicated on the Order Form, or as otherwise provided by Tailscale in writing from time to time, from 9:00am to 5:00pm ET each Monday to Friday, excluding statutory and civic holidays observed in Toronto, Ontario; or (b) any other method as set out in the Order Form.
Updates to the Tailscale Software; Third Party Content
1. General Updates to Tailscale Software. Tailscale may, in its sole discretion, include the provision of updates, upgrades, bug fixes, patches and other error corrections as Tailscale makes generally available to other licensees of the Tailscale Software (collectively, the “Updates”). All Updates will be deemed to be Tailscale Software subject to the terms and conditions of this Agreement. Customer is required to accept all Updates made by or on behalf of Tailscale to the Tailscale Software. If Customer does not wish to install the Updates, it should not license the Tailscale Software. Tailscale may require that Customer accept and install Updates to the Tailscale Software as a condition to the licenses granted in this Agreement. Except for any automatic Updates provided by Tailscale pursuant to Section 7(b) below, Tailscale will provide Customer with prior notice of such Updates. Upon such notice, Customer will, through its Administrator Accounts, install such Updates promptly following receipt of such Update from Tailscale.
2. Automatic Updates to Tailscale Software. The Tailscale Software may automatically communicate with Tailscale’s servers or the Tailscale Portal to permit the Tailscale Software to perform in accordance its specifications, to record and collect Customer Data and to receive Updates. The Updates may be automatically installed without providing any additional notice or receiving any additional consent. Customer consents to these automatic Updates.
3. Third-Party Material. The Tailscale Solution may provide links or access to third party content, websites, services or systems. Tailscale does not endorse any third-party content, websites, services, or systems, or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability, or fitness for any purpose. Third-party content, websites, services, or systems are not under the control of Tailscale, and if Customer chooses to access any such content, websites, services, or systems Customer does so entirely at its own risk. Customer acknowledges that it may be required by to accept terms and conditions applicable to third-party content, websites, services, or systems, that such terms may supersede the terms in this Agreement with respect to the use of such third-party content, websites, services or systems, and Customer agrees to accept and comply with any such terms and conditions.
Fees and Payment
1. Fees. Customer will pay to Tailscale the fees described in any Order Form (the “Fees”). Unless otherwise set out in an Order Form, all Fees are identified in US dollars and are payable in advance. If Customer’s use of the Tailscale Solution exceeds the service capacity set forth in an Order Form or otherwise requires the payment of additional fees pursuant to the terms of this Agreement, Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement.
2. Free Trial. Upon Customer’s request, Tailscale may provide Customer with a free trial of the Tailscale Solution for the period set out in an Order Form. Near to or upon the expiration date of the free trial, Tailscale will notify Customer that the trial will be ending or has ended. Customer will be given the option to upgrade to a paid subscription. If Customer does not agree to continue use of the Tailscale Solution through a paid subscription as described herein, Tailscale will terminate Customer’s right to access the Tailscale Solution.
3. Changes to the Fees. Tailscale reserves the right to change the Fees and institute new charges upon providing not less than 30 days prior written notice to Customer.
4. Disputed Invoices or Charges. If Customer believes Tailscale has charged or invoiced Customer incorrectly, Customer will contact Tailscale no later than 45 days after receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
5. Late Payment. Customer may not withhold or setoff any amounts due under this Agreement. Tailscale reserves the right to suspend Customer’s access to the Tailscale Solution until all due and undisputed amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and Tailscale may apply interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.
6. 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. 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.
7. Termination for Convenience Fees. Upon Tailscale’s termination of this Agreement pursuant to Section 13(b), Tailsale will refund to Customer, on a pro-rata basis, any unused subscription-based Fees prepaid under this Agreement for any period following the effective date of termination.
8. Suspension. Any permitted suspension of the Services by Tailscale pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.
9. Third Party Payment Processors. Customer may be required to provide a valid credit or debit card to Tailscale’s third party payment processors. By using the Tailscale Solution, Customer authorizes Tailscale’s third party payment processors to post such pre-authorized charge and to charge Customer’s credit or debit card. The Fees do not include any payment processing fees assessed by third party payment processors for which Customer will be solely responsible. Tailscale and its third party payment processors are not responsible for the transmission or processing of any payments Customer makes or receives pursuant to Customer’s use of the Tailscale Solution.
Confidential Information
1. Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” means any and all information of Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, including, where the Discloser is Customer, Customer Data, and, where the Discloser is Tailscale, Tailscale Metadata; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
2. Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its rights or perform its obligations under this Agreement: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or Affiliates that have a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
3. Exceptions to Confidentiality. Notwithstanding Section 9(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by Applicable Law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of Tailscale, to potential assignees, acquirers or successors of Tailscale if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Tailscale.
Warranty; Disclaimer
1. Customer Representations and Warranties. Customer represents and warrants to, and covenants with, Tailscale that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case, as required by Applicable Laws including applicable privacy laws, to enable Tailscale to provide the Tailscale Solution, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Tailscale and to or from all applicable third parties.
2. GENERAL DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, TAILSCALE DOES NOT WARRANT THAT THE TAILSCALE SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE TAILSCALE SOLUTION. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE TAILSCALE SOLUTION (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY TAILSCALE TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND TAILSCALE DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
  
  ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY LICENSED THIRD-PARTY TECHNOLOGY IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY.
  
  TO THE EXTENT PERMITTED BY APPLICABLE LAW, TAILSCALE HEREBY DISCLAIMS ALL IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, TAILSCALE EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE TAILSCALE SOLUTION (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
Indemnity
1. Tailscale Indemnities.
  1. Tailscale will defend, indemnify and hold harmless Customer, and its officers, directors, employees and agents (each, a “Customer Indemnitee”) from and against any and all Losses incurred by a Customer Indemnitees arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party (other than an Affiliate of an Tailscale Indemnitee) that arise from or relate to any allegation that the Tailscale Solution infringe any third-party Intellectual Property Right in Canada or the United States. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (A) incorporation of any of the Tailscale Solution into, or any combination, operation, or use of the Tailscale Solution with, any products or services not provided or authorized by Tailscale, unless such infringement would also have resulted solely from the use of the Tailscale Solution without their incorporation in, or combination, operation or use, with such other products or services; (B) modification of the Tailscale Solution other than by Tailscale or with Tailscale’s express written approval; or (C) unauthorized use of the Tailscale Solution.
  2. If the Tailscale Solution is, or in Tailscale’s opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s use of any portion of the Tailscale Solution is enjoined or threatened to be enjoined, Tailscale may, at its option and sole cost and expense:
    1. obtain the right for Customer to continue to use the affected portion of the Tailscale Solution materially as contemplated by this Agreement;
    2. modify or replace Tailscale Solution, in whole or in part, to seek to make the Tailscale Solution (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Tailscale Solution under this Agreement; or
    3. if Tailscale determines that neither of the foregoing two options are reasonably available, by written notice to Customer, terminate this Agreement and require Customer to immediately cease all use of the Tailscale Solution or part or feature thereof.
2. Customer Indemnities. Customer will defend, indemnify and hold harmless Tailscale, and its officers, directors, employees and agents (each, a “Tailscale Indemnitee”) from and against any and all Losses incurred by Tailscale Indemnitees arising out of or relating to any Action by a third party (other than an Affiliate of an Tailscale Indemnitee) that arise from or relate to: (i) Customer Data; (ii) Customer’s breach of Sections 2(c), 10(a), or 14(d); or (iii) unauthorized use of the Tailscale Solution (or any part thereof) by Customer or any Permitted User.
3. Indemnification Procedure. Each Party will promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to this Section 11. The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Action and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 11(c) will not relieve the Indemnitor of its indemnity obligations under this Section 11, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
Limitation of Liabilities
1. AMOUNT. EXCEPT AS OTHERWISE PROVIDED IN SECTION 12(c), TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE TAILSCALE SOLUTION IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.
2. TYPE. EXCEPT AS OTHERWISE PROVIDED IN SECTION 12(c), TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATA, (D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE SERVICES OR THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
3. Exceptions. The exclusions and limitations in Sections 12(a) and 12(b) do not apply to: (i) either Party’s obligations under Section 11; (ii) Losses arising out of or relating to Customer’s breach of its obligations under Sections 2(c) or 7; or (iii) Losses arising out of or relating to a Party’s gross negligence or more culpable conduct, including any willful misconduct or intentionally wrongful acts.
Term and Termination
1. Term. This Agreement will commence on the Effective Date and will continue in effect for the initial term set out in the Order Form (the “Initial Term”). This Agreement will automatically renew for successive renewal terms as set out in an Order Form (each, a “Renewal Term”), unless either Party provides the other Party with written notice of its intention not to renew no less than 30 days prior to the end of the then current term or such other period as set out in an Order Form (collectively, the Initial Term and Renewal Term, the “Term”).
2. Termination for Convenience. Tailscale may terminate this Agreement at any time and for any reason without liability or penalty by providing at least 30 days advance written notice to Customer.
3. Termination for Cause. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party breaches this Agreement, and such breach: (i) is incapable of being cured; or (ii) being capable of being cured, remains uncured for 30 days after the non-breaching Party provides the breaching Party with written notice of such breach.
4. Transition. Upon the termination or expiry of this Agreement, Customer will immediately cease accessing or using the Tailscale Solution. Within 90 calendar days following termination or such other period as set out in an Order Form, Tailscale will, at Customer’s option, return to Customer or delete or otherwise render inaccessible the Customer Data that remains in the hardware or systems used by Tailscale to provide the Tailscale Solution.
5. Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 7 (Fees and Payment), Section 9 (Confidential Information), Section 10 (Warranty; Disclaimer), Section 12 (Limitation of Liabilities), Section 13(e) (Survival), and Section 14 (General Provisions).
General Provisions
1. Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices will be sent: (i) if to Tailscale, to the following address:
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Tailscale Inc.
Attention: David Carney
401-50 Lynn Williams St.
Toronto, ON
M6K 3R9
Canada

Email: info@tailscale.com
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  and (ii) if to Customer, to the current postal or email address that Tailscale has on file with respect to Customer. Tailscale may change its contact information by posting the new contact information on its website, through the Tailscale Solution or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Tailscale current at all times during the Term.
2. Assignment. Tailscale may, upon giving written notice to Customer, assign its rights and obligations under this Agreement to any of its Affiliates or pursuant to a merger, amalgamation or other corporate reorganization or a sale of substantially all of its assets relating to that portion of its business that delivers the Services. In this case, such assignee will have and may exercise all the rights, and will assume all of the obligations, of Tailscale under this Agreement, except that the assignment will not release Tailscale from liability for Tailscale’s obligations under this Agreement. Except for such permitted assignment, neither Party may assign this Agreement or any rights or obligations under this Agreement without the prior written consent of each of the other Party. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
3. Governing Law and Attornment. This Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. Notwithstanding the foregoing, Tailscale may: (i) commence lawsuits to collect unpaid fees from Customer; and (ii) seek injunctive relief with respect to a violation of Tailscale’s Intellectual Property Rights; in each case, in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
4. Export Restrictions. Customer agrees not to directly or indirectly export, re-export or import all or any portion of the Tailscale Solution without first obtaining all required licenses, permits and permissions. Tailscale makes no representation or warranty that the Tailsclae Solution may be exported without Customer first obtaining appropriate licenses or permits under Applicable Law, or that any such license or permit has been, will be, or can be obtained.
5. Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
6. Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”).
7. Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
8. Waiver. A waiver of any provision of this Agreement will be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
9. Independent Contractors. Tailscale’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
10. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.
11. Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE FOREGOING, TAILSCALE MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON TAILSCALE’S WEBSITE. UNLESS OTHERWISE INDICATED BY TAILSCALE, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON SUCH WEBSITE (WHICHEVER IS EARLIER).
12. English Language. It is the express wish of the Parties that this 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.
Apple App Store Additional License Terms

If the Tailscale Software is provided to Customer through the Apple Inc. (Apple Inc. together with all of its affiliates, “Apple”) App Store, the following terms and conditions apply to Customer in addition to all the other terms and conditions of this Agreement:
1. This Agreement are concluded between the Parties, and not with Apple. Apple is not responsible for the Tailscale Software and content thereof is governed by this Agreement.
2. Notwithstanding anything to the contrary hereunder, Customer may use the Tailscale Software only on a Macbook, iPhone, iPad, or iPod touch that Customer owns or controls.
3. The Parties acknowledge that Apple has no obligation to furnish any maintenance or support services with respect to the Tailscale Software.
4. In the event of any failure of the Tailscale Software to conform to any applicable warranty, Customer may notify Apple, and Apple will refund the purchase price for the Tailscale Software (if any) to Customer. Except for the foregoing, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Tailscale Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be governed by this Agreement.
5. Any claim in connection with the Tailscale Software related to product liability, a failure to conform to applicable legal or regulatory requirements, or claims under consumer protection or similar legislation is governed by this Agreement, and Apple is not responsible for such claim.
6. Any third party claim that the Tailscale Software or Customer’s possession and use of the Tailscale Software infringes that third party’s Intellectual Property Rights will be governed by this Agreement, and Apple will not be responsible for the investigation, defense, settlement and discharge of such intellectual property infringement claim.
7. Customer represent and warrant that Customer are not: (i) located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; or (ii) listed on any U.S. Government list of prohibited or restricted parties.
8. Customer may contact us in writing regarding any notices, questions, complaints or claims with respect to the Tailscale Software.
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Name: David Carney
Address: 401-50 Lynn Williams St., Toronto, ON, M6K 3R9, Canada
Telephone Number: +1 (415) 886-9844
Email Address: info@tailscale.com
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9. Apple is a third party beneficiary to this Agreement and may enforce this Agreement against Customer.
10. If any of the terms and conditions in this Agreement are inconsistent or in conflict with Apple’s applicable instructions for Minimum Terms for Developer’s End User License Agreement, located at http://www.apple.com/legal/internet-services/itunes/appstore/dev/minterms/ (the “Apple EULA Terms”) or the App Store Terms and Conditions, located at http://www.apple.com/legal/internet-services/itunes/ca/terms.html (the “Apple App Store Terms”) as of the Effective Date, the terms and conditions of the Apple EULA Terms or Apple App Store Terms, as applicable, will apply to the extent of such inconsistency or conflict.
Google Play Additional License Terms

If the Tailscale Software is provided to Customer through the Google Inc. (Google Inc. together with all of its affiliates, “Google”) Google Play, the following terms and conditions apply to Customer in addition to all the other terms and conditions of this Agreement:
1. Customer acknowledges that Google is not responsible for providing support services for the Tailscale Software; and
2. if any of the terms and conditions in this Agreement are inconsistent or in conflict with Google’s Google Play Developer Distribution Agreement located at https://play.google.com/about/developer-distribution-agreement.html (the “Google EULA Terms”) as of the Effective Date, the terms and conditions of Google EULA Terms will apply to the extent of such inconsistency or conflict.