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Terms of Service

This Terms of Service (the “Agreement”) is entered into as of the Effective Date between Tacnode US Inc. (“Tacnode” or “we”) and Customer (as defined below) (“Customer”, “you,” or “your”) and forms part of the Agreement that governs Customer’s use of the Tacnode Services. Unless otherwise indicated, capitalized terms have the meaning assigned to them in the Agreement.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY (SUCH AS YOUR EMPLOYER) OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND THAT ENTITY TO THIS AGREEMENT, IN WHICH CASE “CUSTOMER,” “YOU,” OR “YOUR” WILL REFER TO THAT ENTITY (OTHERWISE, SUCH TERMS REFER TO YOU AS AN INDIVIDUAL). IF YOU DO NOT HAVE AUTHORITY TO BIND YOUR ENTITY OR DO NOT AGREE WITH ANY PROVISION OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE TACNODE SERVICES. IF YOU ARE A MONTHLY PAY-AS-YOU-GO (PAYG) USER OF TACNODE SERVICES, YOU ACKNOWLEDGE THAT TACNODE MAY MAKE CHANGES TO THE AGREEMENT AND PRICING FROM TIME TO TIME AND YOUR CONTINUED USE OF THE TACNODE SERVICES WILL CONSTITUTE CONSENT TO SUCH CHANGES AND SUCH USE SHALL BE SUBJECT TO THE CURRENT PUBLISHED VERSION OF THIS AGREEMENT AT TACNODE.IO. IF YOU DO NOT AGREE TO THE REVISED AGREEMENT, YOU MUST STOP USING THE TACNODE SERVICES.

You acknowledge that no term in any Order entered into via a reseller will be deemed to modify the Agreement unless pre-authorized in writing by Tacnode.

1. Definitions

Defined terms are set out below. Capitalized terms used but not defined in a Schedule or an Order will have the meaning assigned to them, if any, within this Agreement.

1.1. “Account” means a Platform Services environment.

1.2. “Affiliate” of a party means an entity that controls, is actually or in effect controlled by, or is under common control with such party.

1.3. “Agreement” means this Agreement, the referenced or attached Schedules and addenda, and any accompanying or future Order you enter into under this Agreement.

1.4. “Authorized User” means employees or agents of Customer or its Affiliates (or other individuals or customers of the Customer solely to the extent explicitly permitted in an Order) selected by Customer to access and use the Tacnode Services.

1.5. “Acceptable Use Policy” means the acceptable use policy governing the Tacnode Services located at tacnode.io.

1.6. “Beta Service” means any feature of the Tacnode Services that is clearly designated as “beta”, “experimental”, “preview” or similar, that is provided prior to general commercial release, and that Tacnode at its sole discretion offers to Customer, and Customer at its sole discretion elects to use.

1.7. “Cloud Environment” means a cloud or other compute or storage infrastructure controlled by a party or by an external user (as may be defined where appropriate by schedule or amendment hereto) according to context and used under the Agreement.

1.8. “IaaS Provider” means a cloud service provider on whose platform Tacnode directly provides the Platform Services.

1.9. “Customer Content” means any data or data files of any type that are uploaded by or on behalf of Customer for storage or processing in the Tacnode Services.

1.10. “Tacnode Materials” means any software programs, tools, know-how, expertise, utilities, processes, inventions, devices, methodologies, specifications, documentation, techniques, training materials, and any other materials of any kind used, created, developed or delivered by Tacnode or its personnel in connection with the Tacnode Services.

1.11. “Tacnode Services” means the Tacnode data cloud platform services (the “Platform Services”), and any support and other ancillary services (“Support Services”) provided by Tacnode.

1.12. “Documentation” means the documentation related to the Platform Services located at tacnode.io.

1.13. “Effective Date” means the earliest of: the effective date of the initial Order that references this Agreement or the date of last signature of the Agreement, or if you are a monthly Pay-as-you-go user the date you first access or use any Tacnode Services through any online provisioning, registration or order process.

1.14. “Fees” means all amounts payable for Tacnode Services.

1.15. “Intellectual Property Rights” means all worldwide intellectual property rights available under applicable laws including without limitation rights with respect to patents, copyrights, moral rights, trademarks, trade secrets, know-how, and databases.

1.16. “Order” means an online order for the provision of Tacnode Services, entered into by the parties or any of their Affiliates, incorporated by reference into, and governed by, the Agreement. By entering into an Order hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.

1.17. “Service Level Agreement” means the service level agreement governing the Tacnode Services located at tacnode.io.

1.18. “Schedule” means any of the schedules referenced herein (if applicable) or otherwise set forth in an Order.

1.19. “Support Policy” means the available Support Services plans, offerings, and related processes and terms located at tacnode.io.

1.20. “System” means any application, computing or storage device, or network.

1.21. “Usage Data” means data and telemetry collected by Tacnode relating to Customer’s use of the Platform Services. Usage Data may contain queries entered by an Authorized User but not the results of those queries.

2. Use of the Platform Services

2.1. Access to Platform Services. Tacnode will make the Platform Services available to Customer and its Authorized Users in accordance with the terms and conditions of this Agreement, the Documentation, and an applicable Order solely for Customer’s or their Affiliate’s internal business purposes.

2.2. Tacnode Responsibilities.

  • 2.2.1. Services. Tacnode is responsible for (a) the operation of the Tacnode Cloud Environment; and (b) the Tacnode software used to operate the Platform Services.

  • 2.2.2. Security Measures. Tacnode shall implement reasonable administrative, physical, and technical safeguards to protect the security of the Platform Services and the Customer Content (“Security Measures”). While Tacnode may update the Security Measures, it shall not materially diminish the effectiveness of the Security Measures.

2.3. Customer Responsibilities.

  • 2.3.1. General Responsibilities. You acknowledge and agree that you are responsible for:

    • 2.3.1.1. ensuring that each Authorized User has their own credentials, protecting those credentials, and not permitting any sharing of credentials;

    • 2.3.1.2. your Authorized User’s compliance with this Agreement;

    • 2.3.1.3. securing any Customer Cloud Environment, and any Customer System;

    • 2.3.1.4. backing up Customer Content;

    • 2.3.1.5. configuring the Platform Services in an appropriate way taking into account the sensitivity of the Customer Content that you choose to process using the Platform Services, including data that you share with or receive from third parties;

    • 2.3.1.6. using commercially reasonable efforts to ensure that your Authorized Users review the portions of Documentation relevant to your use of the Platform Services and any security information published by Tacnode and referenced therein that is designed to assist you in securing Customer Content;

    • 2.3.1.7. risks associated with all use of the Platform Services by an Authorized User under an Authorized User’s Account (including for the payment of Fees related to such use), whether such action was taken by an Authorized User or by another party, and whether or not such action was authorized by an Authorized User, provided that such action was not (1) taken by Tacnode or by a party acting under the direction of Tacnode, or (2) an action by a third party that Tacnode should reasonably have prevented.

  • 2.3.2. Platform Services Use Limits. You will not, and will not permit your Authorized Users to:

    • 2.3.2.1. violate the Acceptable Use Policy or use the Platform Services other than in accordance with the Documentation;

    • 2.3.2.2. copy, modify, disassemble, decompile, reverse engineer, or attempt to view or discover the source code of the Platform Services, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by the Agreement or by law;

    • 2.3.2.3. sell, resell, license, sublicense, distribute, rent, lease, or otherwise provide access to the Platform Services to any third party except to the extent explicitly authorized in writing by Tacnode;

    • 2.3.2.4. use the Platform Services to develop or offer a service made available to any third party that could reasonably be seen to serve as a substitute for such third party’s possible purchase of any Tacnode Services;

    • 2.3.2.5. transfer or assign any of your rights hereunder except as permitted under Section 12.4 (Assignment); or

    • 2.3.2.6. during any free trial period granted by Tacnode, including during the use of any Beta Service, use the Tacnode Services for any purpose other than to evaluate whether to purchase the Tacnode Services.

2.4. Shared Responsibilities. Customer acknowledges that the Platform Services may be implemented in a manner that divides the Platform Services between the Customer Cloud Environment and the Tacnode Cloud Environment, and that, in such instances, each party must undertake certain technical and organizational measures in order to protect the Platform Services and the Customer Content.

2.5. Customer Content.

  • 2.5.1. Rights in Customer Content. As between the parties, Customer or its licensors retain all right, title and interest (including any and all intellectual property rights) in and to the Customer Content and any modifications made thereto in the course of operation of the Tacnode Services. Subject to the terms of this Agreement, Customer hereby grants Tacnode a non-exclusive, worldwide, royalty-free right to process the Customer Content solely to the extent necessary to provide the Tacnode Services to Customer, to prevent or address service or technical problems therein, or as may be required by law.

  • 2.5.2. Customer Obligations.

    • 2.5.2.1. In General. Customer’s use of the Tacnode Services and all Customer Content will comply with applicable laws, government regulations, and any other legal requirements, including but not limited to, any data localization or data sovereignty laws, regulations, and any other third-party legal requirements applicable to Customer. Customer is solely responsible for the accuracy, content and legality of all Customer Content. You agree that you will not include in Customer Content any data for which you do not have all rights, power and authority necessary for its collection, use and processing as contemplated by the Agreement. Customer warrants that Customer has and will have sufficient rights in the Customer Content to grant the rights to Tacnode under this Agreement and that the processing of Customer Content by Tacnode in accordance with this Agreement will not violate any laws or the rights of any third party.

    • 2.5.2.2. PHI / Cardholder Data. You shall not include in Customer Content any protected health information (“PHI”) as defined under the Health Insurance Portability and Accountability Act of 1996, as amended and supplemented from time to time (“HIPAA”) or any cardholder data as defined under PCI-DSS (“Cardholder Data”) unless (a) you have entered into an Order permitting you to process PHI and/or Cardholder Data, as applicable; (b) you configure and operate the Platform Services in accordance with any applicable Documentation; and (c) in the case of PHI, you have entered into a Business Associate Agreement (“BAA”) with Tacnode. Tacnode will have no liability under the Agreement relating to PHI or Cardholder Data that is not processed in accordance with the terms of this Section notwithstanding anything in the Agreement or, as applicable, in HIPAA or in PCI-DSS or any other laws to the contrary.

2.6. Architectures and Services Updates. Tacnode provides the Platform Services according to different architectural models (e.g. models where computing resources are deployed into Customer Cloud Environment and models where computing resources are deployed into Tacnode Cloud Environments) depending on the specific feature being used by Customer, as further described in the Documentation. Accordingly, Customer acknowledges and agrees that different portions of the Platform Services are and may in the future be subject to changes reflected in the Documentation or terms and conditions that provide for different rights and responsibilities of the parties for their use.

2.7. Data Protection. All data processing activities shall in compliance with all applicable laws and government regulations, including without limitation those related to data protection and data privacy.

2.8. Suspension and Termination of Platform Services.

  • 2.8.1. Suspension. Tacnode may temporarily suspend any or all Accounts at any time: (i) immediately without notice if Tacnode reasonably suspects that you have violated your obligations under Section 2.3 (Customer Responsibilities), Section 2.5 (Customer Content), or Section 11 (Compliance with Laws) in a manner that may cause material harm or material risk of harm to Tacnode or to any other party; or (ii) if you (or any third party responsible for making payment on your behalf) fail to pay undisputed Fees after receiving notice that you are delinquent in payment.

  • 2.8.2. Termination. If the Agreement is terminated for any reason, as to all Orders or as to any specific Order, Tacnode may cancel your access to the Platform Services including all related Accounts. Upon termination of the Agreement for any reason you will delete all stored elements of the Platform Services from your Systems.

  • 2.8.3. Deletion of Customer Content upon Cancellation of Account Access. Tacnode will automatically delete all Customer Content contained within an Account within fourteen (14) days following the cancellation of Customer’s right to access such Account.

  • 2.8.4. Monthly Pay-As-You-Go (PAYG) Services. Notwithstanding anything in the Agreement to the contrary, Tacnode may suspend or terminate any Platform Services provided on a month-to-month basis (with payment based only on Customer’s usage of the Platform Services during the billing month) upon thirty (30) days’ prior written notice (email sufficient), if Tacnode reasonably determines the account is inactive. In such case, Tacnode may also delete any Customer Content relating to such Account that may be stored within the Platform Services or other Tacnode’s Systems upon expiration of such notice period.

  • 2.8.5. Notice. Notwithstanding Section 12.5 (Notice), notice under this Section 2.8 (Suspension and Termination of Platform Services) may be provided by email sent to a person the party providing notice reasonably believes to have responsibility for the other party’s activities under the Agreement.

3. Support Services

Tacnode will provide you with the level or type of Support Services specified in an Order in accordance with the Support Policy. If Support Services are not specified in an Order, your support shall be limited to public Documentation.

4. Confidentiality

4.1. Confidential Information. “Confidential Information” means any business or technical information disclosed by or on behalf of either party or their Affiliates to the other that is designated as confidential at the time of disclosure or that, under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Without limiting the foregoing, all non-public elements of the Tacnode Services are Tacnode’s Confidential Information, Customer Content is Customer’s Confidential Information, and the terms of the Agreement and any information that either party conveys to the other party concerning data security measures, incidents, or findings constitute Confidential Information of both parties. Confidential Information will not include information that the receiving party can demonstrate (a) is or becomes publicly known through no fault of the receiving party, (b) is, when it is supplied, already known to whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others, (c) is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others or (d) was independently developed by the receiving party without use of or reference to the Confidential Information.

4.2. Confidentiality. A receiving party will not use the disclosing party’s Confidential Information except as permitted under the Agreement or to enforce its rights under the Agreement and will not disclose such Confidential Information to any third party except to those of its employees, Affiliates and/or subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of the Agreement; provided that each such employee, Affiliate and/or subcontractor is bound by a written agreement that contains use and disclosure restrictions consistent with the terms set forth in this Section 4.2 (Confidentiality). Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to those that the receiving party ordinarily uses with respect to its own Confidential Information of similar nature and in no event using less than a reasonable standard of care; provided, however, if a receiving party is required by law, regulation or court order to disclose Confidential Information, then the receiving party shall, to the extent legally permitted, provide the disclosing party with advance written notice and cooperate in any effort to obtain confidential treatment of the Confidential Information including, without limitation, the opportunity to seek appropriate administrative or judicial relief.

4.3. Equitable Relief. Each party acknowledges and agrees that the other party may be irreparably harmed in the event that such party breaches Section 4.2 (Confidentiality), and that monetary damages alone cannot fully compensate the non-breaching party for such harm. Accordingly, each party hereto hereby agrees that the non-breaching party will be entitled to seek injunctive relief to prevent or stop such breach, and to obtain specific enforcement thereof. Any such equitable remedies obtained will be in addition to, and not foreclose, any other remedies that may be available.

5. Intellectual Property

5.1. Ownership by Tacnode. Customer agrees that Tacnode retains all rights, title and interest in and to (i) the Tacnode Services, Documentation, Tacnode Materials and any and all related and underlying technology and documentation (including but not limited to products, software tools, algorithms, know-how, processes, methodologies, databases, and architecture) created by or for, or licensed to Tacnode; and (ii) any updates, upgrades, improvements, modifications, or derivative works of any of the foregoing ((i) and (ii) collectively the (“Tacnode Technology”), including all Intellectual Property Rights in any of the foregoing. Except for the express limited rights set forth in this Agreement, no right, title or interest in any Tacnode Technology is granted to Customer. You will not delete or alter the copyright, trademark, or other proprietary rights notices or markings appearing within the Tacnode Technology as delivered to you. You agree that the Tacnode Technology is provided on a non-exclusive basis and not sold, and that no transfer of ownership of Intellectual Property Rights will occur. You further acknowledge and agree that portions of the Tacnode Technology, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets and other Intellectual Property Rights of Tacnode and its licensors. Further, Customer acknowledges that the Tacnode Services is offered as an online, hosted solution, and that Customer has no right to obtain a copy of the underlying computer code for the Tacnode Services.

5.2. Ownership by Customer. As between you and Tacnode, you retain all ownership or license rights in Customer Content.

5.3. Usage Data. Notwithstanding anything to the contrary in the Agreement, Tacnode may collect and use Usage Data to develop, improve, operate, and support its products and services. Tacnode will not disclose any Usage Data to any third-parties unless (a) it is anonymized and aggregated such that it does not identify Customer or Customer Confidential Information; or (b) in accordance with Section 4 (Confidentiality) of this Agreement to perform the Tacnode Services.

5.4. Feedback. You are under no duty to provide any suggestions, enhancement requests, or other feedback regarding the Tacnode Services (“Feedback”). If you choose to offer Feedback to Tacnode, you hereby grant Tacnode a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable, assignable license to incorporate into the Tacnode Services or otherwise use any Feedback Tacnode receives from you solely to improve Tacnode products and services, provided that such Feedback is used in a manner that is not attributable to you. You also irrevocably waive in favor of Tacnode any moral rights which you may have in such Feedback pursuant to applicable copyright law. Tacnode acknowledges that any Feedback is provided on an “as-is” basis with no warranties of any kind.

6. Warranties and Remedy

6.1. Warranties. Each party warrants that it is validly entering into the Agreement and has the legal authority to do so. In addition to the warranties provided by the parties as set forth in any applicable Schedule, Tacnode warrants that during the term of any Order for Platform Services: (a) the Platform Services will function substantially in accordance with the Documentation; and (b) Tacnode will employ commercially reasonable efforts in accordance with industry standards to prevent the transmission of malware or malicious code via the Platform Services.

6.2. Disclaimer. THE WARRANTIES PROVIDED BY TACNODE IN SECTION 6.1 (WARRANTIES) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING TACNODE AND TACNODE SERVICES PROVIDED HEREUNDER. TACNODE AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, CONDITIONS AND OTHER TERMS, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN: (a) ANY SERVICES PROVIDED UNDER ANY FREE TRIAL PERIOD ARE PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND; (b) WITHOUT LIMITATION, TACNODE DOES NOT MAKE ANY WARRANTY OF ACCURACY, COMPLETENESS, TIMELINESS, OR UNINTERRUPTABILITY, OF THE TACNODE SERVICES; AND (c), TACNODE IS NOT RESPONSIBLE FOR RESULTS OBTAINED FROM THE USE OF THE TACNODE SERVICES, OR FOR CONCLUSIONS DRAWN FROM SUCH USE.

6.3. Warranty Remedy. FOR ANY BREACH OF THE WARRANTIES RELATED TO THE PLATFORM SERVICES PROVIDED BY TACNODE IN SECTION 6.1 (WARRANTIES), YOUR EXCLUSIVE REMEDY AND TACNODE’S ENTIRE LIABILITY WILL BE: FOR PLATFORM SERVICES, THE MATERIAL CORRECTION OF THE DEFICIENT SERVICES THAT CAUSED THE BREACH OF WARRANTY, OR, IF WE CANNOT SUBSTANTIALLY CORRECT THE DEFICIENCY IN A COMMERCIALLY REASONABLE MANNER, TACNODE WILL END THE DEFICIENT SERVICES AND REFUND TO YOU THE PORTION OF ANY PREPAID FEES PAID BY YOU TO TACNODE APPLICABLE TO THE PERIOD FOLLOWING THE EFFECTIVE DATE OF TERMINATION.

7. Indemnification

7.1. Indemnification by Tacnode. Subject to Section 7.5 (Conditions of Indemnification), Tacnode will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party (a “Claim Against Customer”) to the extent that it alleges that the Tacnode Services as provided to Customer by Tacnode, or Customer’s use of the Tacnode Services in accordance with the Documentation and the Agreement, infringes or misappropriates such third party’s Intellectual Property Rights (an “IP Claim”), and will indemnify Customer from and against any damages, attorney fees and costs finally awarded against Customer to the extent they are based upon such Claim Against Customer, or for amounts paid by Customer under a settlement approved in writing by Tacnode resulting from such Claim Against Customer. Notwithstanding the foregoing, Tacnode will have no liability for any infringement or misappropriation claim of any kind if such claim arises from: (a) the combination, operation or use of the Tacnode Services with equipment, devices, software or data (including without limitation your Confidential Information) not supplied by Tacnode if a claim would not have occurred but for such combination, operation or use; or (b) your or an Authorized Use’s use of the Tacnode Services other than in accordance with the Documentation and the Agreement.

7.2. Other Remedies. If Tacnode receives information about an infringement or misappropriation claim related to a Tacnode Service or otherwise becomes aware of a claim that the provision of any of the Tacnode Services is unlawful in a particular territory, then Tacnode may at its sole option and expense: (a) replace or modify the applicable Tacnode Services to make them non-infringing and of substantially equivalent functionality; (b) procure for you the right to continue using the Tacnode Services under the terms of the Agreement; or (c) if Tacnode is unable to accomplish either (a) or (b) despite using its reasonable efforts, terminate your rights and Tacnode’s obligations under the Agreement with respect to such Tacnode Services and refund to you any Fees prepaid by you to Tacnode for Tacnode Services not yet provided.

7.3. Indemnification by Customer. Subject to Section 7.5 (Conditions of Indemnification), Customer will defend Tacnode against any claim, demand, suit or proceeding made or brought against Tacnode by a third party (a “Claim Against Tacnode”) (a) arising from or related to Customer’s use of the Tacnode Services in violation of any applicable laws, the rights of a third party, or the Agreement, and/or (b) arising from or related to Customer Content or its use with the Tacnode Services (each (a)-(b) a “Data Claim”), and will indemnify Tacnode from and against any damages, attorney fees and costs finally awarded against Tacnode to the extent they are based upon, or for amounts paid by Tacnode under a settlement approved by Customer in writing of, a Claim Against Tacnode.

7.4. Sole Remedy. SUBJECT TO SECTION 7.5 (CONDITIONS OF INDEMNIFICATION) BELOW, THE FOREGOING SECTIONS 7.1 (INDEMNIFICATION BY TACNODE) AND 7.2 (OTHER REMEDIES) STATE THE ENTIRE OBLIGATION OF TACNODE AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE TACNODE SERVICES.

7.5. Conditions of Indemnification. As a condition to an indemnifying party’s (each, an “Indemnitor”) obligations under this Section 7 (Indemnification), a party seeking indemnification (each, an “Indemnitee”) will: (a) promptly notify the Indemnitor of the claim for which the Indemnitee is seeking indemnification (but late notice will relieve Indemnitor of its obligation to indemnify only to the extent that it has been prejudiced by the delay); (b) grant the Indemnitor sole control of the defense (including selection of counsel) and settlement of the claim; (c) provide the Indemnitor, at the Indemnitor’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim; and (d) preserve and will not waive legal, professional or any other privilege attaching to any of the records, documents, or other information in relation to such claim without prior notification of consent by the Indemnitor. The Indemnitor will not settle any claim in a manner that does not fully discharge the claim against an Indemnitee or that imposes any obligation on, or restricts any right of, an Indemnitee without the Indemnitee’s prior written consent, which may not be unreasonably withheld or delayed. An Indemnitee has the right to retain counsel, at the Indemnitee’s expense, to participate in the defense or settlement of any claim. The Indemnitor will not be liable for any settlement or compromise that an Indemnitee enters into without the Indemnitor’s prior written consent.

8. Limitation of Liability

8.1. “Excluded Claims” means claims arising from (a) personal injury or death caused by the negligence of a party, its employees or agents; (b) fraud or fraudulent misrepresentation; (c) a party’s payment obligations under this Agreement; (d) Tacnode’s indemnification obligations for an IP Claim; (e) Customer’s indemnification obligations for a Data Claim; (f) infringement by a party of the other party’s Intellectual Property Rights or (g) any other liability that cannot be excluded or limited by applicable laws.

8.2. NOTHING IN THIS AGREEMENT WILL LIMIT EITHER PARTY’S LIABILITY FOR EXCLUDED CLAIMS.

8.3. SUBJECT TO SECTION 8.2:

  • 8.3.1. TO THE FULLEST EXTENT PERMITTED BY LAW NEITHER PARTY WILL HAVE ANY LIABILITY FOR: (i) LOST PROFITS OR REVENUE; (ii) LOSS OF GOODWILL; (iii) LOSS OR CORRUPTION OF DATA; (iv) LOSS ARISING FROM INACCURATE OR UNEXPECTED RESULTS ARISING FROM THE USE OF THE TACNODE SERVICES; OR (v) INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL LOSS OR DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING.

  • 8.3.2. SUBJECT TO SUB-SECTION BELOW, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THE AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES FOR THE TACNODE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE (THE “GENERAL CAP”). THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.

  • 8.3.3. TACNODE’S AGGREGATE LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING OUT OF AN UNAUTHORIZED DISCLOSURE OF CUSTOMER CONTENT RESULTING FROM TACNODE’S BREACH OF (i) ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 4.2 (CONFIDENTIALITY) OR (ii) WITH RESPECT TO THE PROVISION BY TACNODE OF THE PLATFORM SERVICES (IF APPLICABLE), TACNODE’S DATA PROTECTION AND SECURITY OBLIGATIONS SET FORTH IN THIS AGREEMENT, EXCEPT TO THE EXTENT SUCH CLAIMS OR DAMAGES ARE CAUSED BY TACNODE’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, SHALL BE LIMITED TO TWO (2) TIMES THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES FOR THE TACNODE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE (“SUPERCAP”).

8.4. IN NO EVENT SHALL TACNODE BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL CAP AND THE SUPERCAP. SIMILARLY, THOSE CAPS SHALL NOT BE CUMULATIVE; IF THERE ARE ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE SHALL NOT EXCEED THE SUPERCAP.

8.5. THE PARTIES AGREE THAT SECTION 8 WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

8.6. THE APPLICABLE MONETARY CAPS SET FORTH IN SECTION 8 SHALL APPLY, ON AN AGGREGATED BASIS, ACROSS THIS AGREEMENT AND ANY AND ALL SEPARATE AGREEMENT(S) GOVERNING CUSTOMER’S USE OF THE TACNODE SERVICES ENTERED INTO BETWEEN TACNODE AND ANY CUSTOMER AFFILIATES.

8.7. TACNODE SHALL NOT BE LIABLE FOR THE BETA SERVICES OR ANY TACNODE SERVICES PROVIDED FREE OF CHARGE, INCLUDING ANY TACNODE SERVICES PROVIDED DURING A FREE TRIAL PERIOD.

9. Term

9.1. Term of Agreement. The Agreement will become effective on the Effective Date and will continue in full force and effect until terminated by either party pursuant to this Section 9 (“Term”). The Agreement, including your use of the Platform Services and any Accounts and any applicable Order, may be terminated (i) by either party on thirty (30) days’ prior written notice if (a) there are no operative Orders outstanding or (b) the other party is in material breach of the Agreement and the breaching party fails to cure the breach prior to the end of the notice period; or (ii) by Tacnode upon thirty (30) days’ prior written notice following your receipt of a notice that you are delinquent in the payment of undisputed Fees. If the Agreement terminates pursuant to the prior sentence due to Tacnode’s material breach, Tacnode will refund to you that portion of any prepayments made to Tacnode related to Tacnode Services not yet provided. Either party can immediately terminate the Agreement if the other becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver, examiner, or administrator of its undertaking of the whole or a substantial part of its assets appointed, or an order is made, or an effective resolution is passed, for its administration, examinership, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within 30 days), or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to conduct business or threatens to do so.

9.2. Term of Orders. An Order may specify the effective duration of the Tacnode Services purchased under such Order.

9.3. Survival. All provisions of the Agreement that by their nature should survive termination will so survive.

10. Payment and Taxes

10.1. Payment. Unless your usage of the Tacnode Services is being paid for by a third party under contract with Tacnode, you will pay all Fees specified in the applicable Order. With respect to direct Orders, except as otherwise specified in such Order(s): (a) all Fees owed to Tacnode will be paid in U.S. Dollars; (b) invoiced payments will be due within 14 days of the date of your receipt of each invoice; (c) Fees for all prepaid committed Tacnode Services will be invoiced in full upon execution of the applicable Order; and (d) all excess Platform Services usage (and related Support Services, if any) will be invoiced monthly in arrears. To the extent that you enter into an order with a reseller or accept an Order via an IaaS Provider’s marketplace, your payment terms will be as you separately arrange with such third party, provided that should you fail to pay Fees when due to a Tacnode-authorized reseller or through the nominated IaaS Provider, Tacnode may seek payment directly from you. All past due payments, except to the extent reasonably disputed, will accrue interest at the highest rate allowed under applicable laws but in no event more than one and one-half percent (1.5%) per month.

10.2. Payment Disputes. Tacnode will not exercise its rights under Section 2.8 (Suspension and Termination of Platform Services) with respect to non-payment by Customer in the event of a Payment Dispute. If the parties are unable to resolve such Payment Dispute within thirty (30) days, each party shall have the right to seek any remedies it may have under this Agreement, at law or in equity, irrespective of any terms that would limit remedies on account of a dispute. For clarity, any undisputed amounts must be paid in full.

10.3. Taxes. Fees do not include taxes. Customer is responsible for paying all taxes associated with its purchases hereunder, including without limitation all use or access of the Tacnode Services by its Users. If Tacnode has the legal obligation to pay or collect taxes for which Customer is responsible under this section, Tacnode will invoice Customer and Customer will pay that amount unless Customer provides Tacnode with a valid tax exemption certificate authorized by the appropriate taxing authority. Taxes will not be deducted from payments to Tacnode, except as required by applicable law, in which case Customer will increase the amount payable as necessary so that, after making all required deductions and withholdings, Tacnode receives and retains (free from any liability for taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. Upon Tacnode’s request, Customer will provide to Tacnode its proof of withholding tax remittance to the respective tax authority. Where applicable, Customer will provide its VAT/GST Registration Number(s) on the Order to confirm the business use of the purchased services.

11. Compliance with Laws

11.1. By Tacnode Generally. Tacnode will provide the Tacnode Services in accordance with its obligations under laws and government regulations applicable to Tacnode’s provision of the Tacnode Services to its customers generally, including, without limitation those related to data protection and data privacy, irrespective of Customer’s particular use of the services.

11.2. By Customer Generally. You shall use the Tacnode Services in compliance with all applicable laws and government regulations, including without limitation those related to data protection and data privacy.

11.3. Export Controls; Trade Sanctions. The Tacnode Services may be subject to export controls and trade sanctions administered or enforced by the United States and other jurisdictions. Customer acknowledges and agrees that it will comply with all applicable export controls and trade sanctions laws, regulations and/or any other relevant restrictions in Customer’s use of the Tacnode Services, including that you will not permit access to or use of any Tacnode Services in any country where such access or use is subject to a trade embargo or prohibition, and that you will not use Tacnode Services in support of any controlled technology, industry, or goods or services, or any other restricted use, without having a valid governmental license, authority, or permission to engage in such conduct. Each party further represents that it (and with respect to Customer, each Authorized User and/or Affiliate accessing the Tacnode Services) is not named on any governmental or quasi-governmental denied party or debarment list relevant to this Agreement, and is not owned directly or indirectly by persons whose aggregated interest in such party is 50% or more and who are named on any such list(s).

12. General

12.1. Governing Law and Venue. This Agreement will be governed by the laws of the State of Delaware, U.S.A. without regard to the conflict of laws, and the United Nations Convention on Contracts for the International Sale of Goods will not apply. The exclusive jurisdiction and venue for any actions will be the state and federal courts located in New Castle County, Delaware, U.S.A. Tacnode and Customer each irrevocably consent to, and waive any objection to, jurisdiction and venue in such courts. Unless prohibited by governing law or venue, each party irrevocably agrees to waive jury trial.

12.2. Entire Agreement, Construction, Amendment and Execution. The Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter, provided that to the extent Customer uses any Tacnode Services subject to terms not included in the Agreement, the relevant terms in effect at the time of first use at tacnode.io shall be deemed to govern use of such Tacnode Services unless the parties agree otherwise in writing and any reference to a term in such Schedule shall be interpreted accordingly. Customer acknowledges that, in entering this Agreement, it has not relied on any statement, warranty, representation or other promise of any nature not contained in this Agreement. Tacnode may change and update the Platform Services, in which case Tacnode may update the Documentation. To the extent any provision in an Order clearly conflicts with a provision of this Agreement or a provision of an earlier Order, the provision in the new Order will be binding and the conflicting provision in this Agreement or in the earlier Order will be deemed modified solely to the extent reasonably necessary to eliminate the conflict and solely with respect to the new Order (unless expressly intended to permanently amend the Agreement including any Schedule). Customer’s Affiliates may receive the Tacnode Services under this Agreement as Authorized Users. Alternatively, where a Customer Affiliate wishes to execute its own Order subject to the terms of this Agreement then Customer agrees to remain jointly and severally liable for such use. If any provision of the Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible and the other provisions will remain in full force and effect. The headings in the Agreement are solely for convenience and will not be taken into consideration in interpretation of the Agreement. Any translation of the Agreement or an Order that is provided as a courtesy shall not be legally binding and the English language version will always prevail. Each party acknowledges and agrees that it has adequate sophistication, including legal representation, fully to review and understand the Agreement; therefore, in interpretation of the Agreement with respect to any drafting ambiguities that may be identified or alleged, no presumption will be given in favor of the non-drafting party. Except as set out elsewhere in this Agreement, any variation or waiver of this Agreement must be expressly agreed in writing signed by both parties. Without limiting the foregoing, no Customer purchase order, onboarding forms, terms of business or other documentation will be deemed to modify an Order or the Agreement unless expressly pre-authorized in writing by Tacnode. The Agreement may be executed in two or more counterparts, each of which will be deemed an original and all of which, taken together, will constitute one and the same instrument. A party’s electronic signature or transmission of any document by electronic means will be deemed to bind such party as if signed and transmitted in physical form.

12.3. Publicity. Customer consents to Tacnode’s use of Customer's name and logo for public identification as a customer, along with general descriptions of any non-confidential matters Tacnode has handled for Customer and a general statement that Customer has selected Tacnode as its data platform, in public-facing materials. In addition, upon request, Customer consents to participating in a case study regarding its experiences with the Tacnode Services (“Case Study”), and inclusion of the Case Study in public-facing materials.

12.4. Assignment. No assignment, novation or transfer of a party’s rights and obligations under the Agreement (“Assignment”) is permitted except with the prior written approval of the other party, which will not be unreasonably withheld. Notwithstanding the foregoing, either party may freely make an Assignment to a successor in interest upon a change of control. If such Assignment, upon change of control, is a) to a direct competitor of the other party or b) would cause the other party to become in violation of applicable laws that is not reasonably addressable, such other party may terminate the Agreement upon written notice.

12.5. Notice. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth in this Agreement or at such other address as may be given in writing by either party to the other in accordance with this section and will be deemed to have been received by the addressee upon: (a) personal delivery; (b) the second business day after being mailed or couriered; or (c) the day of sending by email, except for notices of breach (other than for non-payment) or an indemnifiable claim, which for clarity must be made by mail or courier. Email notifications to Tacnode shall be to legal@tacnode.io.

12.6. Force Majeure. Neither party will be liable for a delay or failure to perform this Agreement, due to and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including without limitation the following force majeure events (“Force Majeure Event(s)”): (a) acts of God, (b) acts of government, including any changes in law or regulations, (c) acts or omissions of third parties, (d) flood, fire, earthquakes, civil unrest, wars, acts of terror, pandemics, or strikes or other actions taken by labor organizations, (e) computer, telecommunications, the Internet, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within the Impacted Party’s possession or reasonable control, (f) network intrusions or denial of service attacks, or (g) any other cause, whether similar or dissimilar to any of the foregoing, that is beyond the Impacted Party’s reasonable control. This Section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery or business continuity procedures or either party’s payment obligations (unless that is prevented by a Force Majeure Event).

12.7. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent and neither party’s employees are eligible for any form or type of benefits, including, but not limited to, health, life or disability insurance, offered by the other party to its employees. The parties by their duly authorized representatives have executed this Agreement as of the Effective Date.

Last Updated: November 5, 2024

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1. Definitions2. Use of the Platform Services3. Support Services4. Confidentiality5. Intellectual Property6. Warranties and Remedy7. Indemnification8. Limitation of Liability9. Term10. Payment and Taxes11. Compliance with Laws12. General