Privacy

THIS TAILCARDS PRE-RELEASE AGREEMENT (THE "AGREEMENT") GOVERNS YOUR USE OF THE PRODUCT (AS DEFINED BELOW) AND IS BY AND BETWEEN TAILCARDS INC. (“TAILCARDS”, “WE” OR “US”) AND YOU. BY CLICKING “ACCEPT,” ENTERING A PROMPT OR USING THE PRODUCT, YOU ARE CONFIRMING THAT YOU UNDERSTAND THIS AGREEMENT, AND THAT YOU ACCEPT ALL OF ITS TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, IN WHICH CASE “YOU” WILL MEAN THE ENTITY YOU REPRESENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU SHOULD NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PRODUCT.

IMPORTANT: THIS AGREEMENT AUTOMATICALLY RENEWS UNLESS YOU CANCEL AS SET FORTH BELOW.

PLEASE REVIEW THE MUTUAL ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH TAILCARDS ON AN INDIVIDUAL BASIS (WAIVING YOUR RIGHT TO A CLASS ACTION) THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS OF THIS MUTUAL ARBITRATION AGREEMENT AND HAVE TAKEN THE TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION. THE “EFFECTIVE DATE” IS THE DATE YOU FIRST ACCEPT THIS AGREEMENT.

1. Definitions.

1.1 “Credits” means the units that are redeemable in exchange for a prompt, generation of Generated Code and/or other action in the Product. Each Credit is redeemable for the particular prompt, generation or other action as expressly set forth in the Product.1.2 “Generated Code” means the source code that the Solution generates based on Your queries and prompts.1.3 “Product” means the Solution and all associated documentation (if any) (“Documentation”), collectively.1.4 “Solution” means the product by Tailcards.1.5 Subscription Plan means access to the Product and a specified amount of Credits for the duration of Your Subscription Term (whether free or paid).1.6 Subscription Term is as defined in Section 11 (Term and Termination).

2. License Grant. 

Subject to the terms and conditions of this Agreement, Tailcards hereby grants You and Your employee users a non-exclusive, non-transferable, limited license (without the right to sublicense), solely for the Subscription Term, to (i) access and use the Solution and allow Your employees to access and use the Solution up to the number of Credits in Your Subscription Plan or as otherwise purchased to generate Generated Code; and (ii) use all associated Documentation in connection with such authorized use of the Solution, in all cases of i-ii solely for Your personal or internal business use purposes.

3. Upgrades and Downgrades.

You can choose to upgrade Your Subscription Plan at any time. Upon upgrading Your Subscription Plan, You will receive immediate access to the features and benefits of the higher-priced plan. You can choose to downgrade Your Subscription Plan. The change to a lower-priced plan will take effect and commence on the next Renewal Subscription Term (as defined below). You can continue to utilize the features and benefits of the higher-priced plan You are currently on until the end of the current Subscription Term.

4. Tailcards AI Policy.

Your use of the Product is subject to the terms of the Tailcards AI Policy and any third party AI provider terms, each of which are incorporated by this reference. Tailcards may use Your prompts, queries and/or other input content to train and improve our products, including the Product.

5. Permissions and Restrictions.  

5.1 Permissions. By entering into this Agreement, You are agreeing to allow the Solution to connect to Your Tailcards platform account. You must have a valid Tailcards platform account in full force and effect to generate Generated Code with the Product and Your use of the Tailcards platform will remain subject to the terms of the applicable agreement for such Tailcards platform. You are responsible for: (a) each of Your employee users hereunder and their compliance with the terms of this Agreement and (b) any prompts and/or queries You input into, or submit to, the Solution and any moderation and/or use of the Generated Code. When You use the Solution, the Solution will generate Generated Code that You may copy or download for Your use.

5.2 Restrictions. You shall not, and shall not permit any third party to: (i) reverse engineer, reverse assemble, or otherwise attempt to discover the source code of all or any portion of the Solution; (ii) reproduce, modify, translate or create derivative works of all or any portion of the Product; (iii) export the Solution or assist any third party to gain access, license, sublicense, resell distribute, assign, transfer or use the Product; (iv) remove or destroy any proprietary notices contained on or in the Product or any copies thereof; or (v) publish or disclose the results of any benchmarking of the Products, or use such results for Your own competing software development activities, without the prior written permission of Tailcards. You shall only use the Solution in compliance with all applicable laws and regulations, including, without limitation, any restrictions on using artificial intelligence or generative AI. You acknowledge and agree that the Product may provide the same or similar output and Generated Code to various users. By using the Solution, You agree that other users of the Solution will be able to see the Generated Code and image tiles of Your generations.

6. Disclaimer of Warranty. 

The Product is pre-release, time limited. You are responsible for the security of the environment in which You use the Solution and You agree to follow best practices with respect to security. YOU AGREE THAT TAILCARDS AND ITS LICENSORS PROVIDE THE PRODUCTS AND GENERATED CODE ON AN “AS IS” AND “WHERE-AS” BASIS. NEITHER TAILCARDS NOR ITS LICENSORS MAKE ANY WARRANTIES WITH RESPECT TO THE PERFORMANCE OF THE PRODUCT OR GENERATED CODE, OR THE APPROPRIATENESS OF THE GENERATED CODE FOR YOUR PROJECT, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND TAILCARDS AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, GENERATED CODE MAY INCLUDE ERRORS AND BUGS. **

7. Intellectual Property Rights; Support and Feedback.  

7.1 Tailcards Rights. All rights, title and interest in and to the Product and any improved, updated, modified or additional parts thereof, shall at all times remain the property of Tailcards or its licensors. Nothing herein shall give or be deemed to give You any right, title or interest in or to the same except as expressly provided in this Agreement. Tailcards reserves all rights not expressly granted herein.

7.2 Your Rights. As between You and Tailcards, You own the Generated Code and Tailcards assigns to You rights in the Generated Code, subject to any rights that another user of the Product has in the same Generated Code.

7.3 Support. Notwithstanding the disclaimer of warranty above, Tailcards may, but is not required to provide You with support on the use of the Product, in its sole discretion.

7.4 Feedback. You agree to make reasonable efforts to provide Tailcards with oral feedback and/or written feedback related to Your use of the Product, including, but not limited to, a report of any errors which You discover in the Solution or related documentation. Such reports, and any other materials, information, ideas, concepts, feedback and know-how provided by You to Tailcards concerning the Product and any information reported automatically through the Product to Tailcards (“Feedback”) will be the property of Tailcards. You agree to assign, and hereby assign, all right, title and interest worldwide in the Feedback, and the related intellectual property rights, to Tailcards and agree to assist Tailcards, at Tailcards’s expense, in perfecting and enforcing such rights.

8. Limitation of Liability; Allocation of Risk; Indemnity.  

8.1 Limitation of Liability. NEITHER TAILCARDS NOR ITS LICENSORS SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, OR DAMAGES ARISING FROM LOSS OF USE, LOSS OF CONTENT OR DATA OR ANY ACTUAL OR ANTICIPATED DAMAGES, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH DAMAGES MAY BE BASED, AND EVEN IF TAILCARDS OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL TAILCARDS’S DIRECT DAMAGES EXCEED ONE HUNDRED DOLLARS (US $100.00). ADDITIONALLY, IN NO EVENT SHALL TAILCARDS'S LICENSORS BE LIABLE FOR ANY DAMAGES OF ANY KIND.

8.2 Allocation of Risk.  You and Tailcards agree that the foregoing Section 8.1 on limitation of liability and the Section 6 above on warranty disclaimer fairly allocate the risks in the Agreement between the parties. You and Tailcards further agree that this allocation is an essential element of the basis of the bargain between the parties and that the limitations specified in this Section 8 shall apply notwithstanding any failure of the essential purpose of this Agreement or any limited remedy hereunder.

8.3 Indemnity. You will defend, indemnify and hold harmless Tailcards and its affiliates and third party licensors from and against any claims, losses and expenses (including attorneys’ fees) arising from or relating to Your use of the Product, including, without limitation, any Generated Code or products or services that You develop from or in connection with the Generated Code, any claims by a third party or another user of the Products that Your Generated Code infringes or misappropriates their intellectual property rights and/or Your breach of applicable law.

9. Confidentiality. 

All information regarding the Product, including, without limitation, any Feedback, the existence of this Agreement and the functionality of the Product is considered Tailcards’s confidential information. You shall not use or disclose such confidential information other than to perform and exercise Your rights under this Agreement.

10. Payment of Fees

10.1 Fees. All of our Subscription Plans are billed in advance on a monthly basis. For paid Subscription Plans, You may purchase additional “on-demand” Credits and use them in the Product, provided that such “on-demand” Credits not included in a Subscription Plan must be used within ninety (90) days of purchase and such “on-demand” Credits will expire on the ninetieth (90th) day. You agree to pay all fees, charges, and taxes to be paid by You in connection with the Product and Your purchased Subscription Plan for the duration of the Subscription Term (the “Fees”). All payments made are non-refundable and non-transferable, except as expressly authorized by Tailcards in Tailcards’s sole discretion. We reserve the right to change our pricing terms at any time. If we do so, we will let You know by posting the new pricing terms on our website or through other communications. We also reserve the right to change other terms of our Subscription Plans at any time, including changing the features that can be accessed through a particular Subscription Plan. To purchase a Subscription Plan and to purchase “on-demand” credits, You must provide us with a current, complete, accurate and authorized credit card or other approved payment method information. You agree to promptly notify us of any changes to the provided payment method while Your subscription remains in effect. We subscribe to our payment processors’ account update service. This means that even if Your credit card expires or changes numbers, depending on the terms of Your credit card agreement with Your credit card provider, our payment processors may receive updated card information and will be able to charge Your credit card using the updated information. You authorize us to automatically charge the provided payment method for the selected Subscription Plan. We will charge You for the Initial Subscription Term (as defined below) at the time of purchase or shortly after purchase. We will charge You for Your Renewal Subscription Term (as defined below) of Your Subscription Plan on a recurring basis, at the beginning of each Renewal Subscription Term, until such time that You cancel pursuant to Section 11 (Term and Termination). You understand that failure to pay any Fees or other charges may result in the suspension or cancellation of Your Subscription Plan.

10.2 Upgrades/Downgrades Fees. Should You upgrade Your Subscription Plan, the new Fees for such upgraded Subscription Plan will take immediate effect and You will be charged in full for the upgraded Subscription Plan. Any remaining unused Credits from Your previous Subscription Plan, will remain valid until its original expiration date (as explained in Section 11.2). By way of example, if You are on a $10 per month Subscription Plan (with 1,500 Credits) and You upgrade to the $30 per month Subscription Plan (with 5,000 Credits) halfway through Your Subscription Term, You will be charged the full $30 for the new Subscription Plan and will immediately receive the full 5,000 Credits from the new Subscription Plan. Any unused Credits from the previous Subscription Plan remain valid until the end of the then-current Subscription Term. Should You downgrade Your Subscription Plan, the new Fees for such downgraded Subscription Plan will take effect at the beginning of the following Renewal Subscription Term and no pro-rated refund of any prepaid Fees will be issued to You. Any unused Credits acquired from the higher-priced Subscription Plan remain valid until their original expiration date (as explained in Section 11.2), even after the downgrade takes effect. For example, if You are on the $30 per month Subscription Plan (with 5,000 Credits) and You choose to downgrade to the $10 per month Subscription Plan (with 1,500 Credits), and You still have 20 unused Credits when the downgrade takes effect, those 20 Credits remain valid until the end of their original Subscription Term.

11. Term and Termination.

11.1 Term and Termination. The term of this Agreement shall commence on the Effective Date and shall continue for one (1) month (the “Initial Subscription Term”) and such term will automatically renew for successive monthly periods from the Effective Date (a “Renewal Subscription Term”) unless you cancel before the expiration of the then-current term. You may downgrade Your Subscription Plan to a free plan as set forth in the Product. “Subscription Term” shall mean the Initial Subscription Term and subsequent Renewal Subscription Term(s). We also reserve the right to change any of the terms of this Agreement for any and all Renewal Subscription Terms. You may also terminate this Agreement at any time by ceasing use of the Product. This Agreement will terminate immediately upon written notice from Tailcards if You fail to comply with any provision of this Agreement. Except for Section 2 (“License Grant”), all Sections of this Agreement shall survive termination. On termination of this Agreement, You and each of Your employee users must cease using the Solution and Tailcards may destroy all of Your prompts, queries and/or data that You have submitted to the Solution. Notwithstanding the foregoing, You may continue to use Your Generated Code on termination in accordance with the terms of this Agreement which shall survive as to Your use of such Generated Code.

11.2 Termination.  Credits included in a Subscription Plan that are not used within Your then-current Subscription Term will not roll over for use in the subsequent Renewal Subscription Term. “On-demand” Credits purchased outside of a Subscription Plan must be used within ninety (90) days of purchase and will expire on the ninetieth (90th) day. All Credits are “use it or lose it.”

12. Government End Users. 

The Product provided under this Agreement is commercial computer software programs developed solely at private expense. As defined in U.S. Federal Acquisition Regulations (FAR) section 2.101 and U.S. Defense Federal Acquisition Regulations (DFAR) sections 252.227-7014(a)(1) and 252.227-7014(a)(5) (or otherwise as applicable to You), the Product licensed in this Agreement is deemed to be “commercial items” and “commercial computer software” and “commercial computer software documentation.” Consistent with FAR section 12.212 and DFAR section 227.7202, (or such other similar provisions as may be applicable to You), any use, modification, reproduction, release, performance, display, or disclosure of such commercial Product or commercial Product documentation by the U.S. government (or any agency or contractor thereof) shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.

13. General Provisions.

13.1 Miscellaneous. All notices permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) calendar days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. The failure of either party to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. Nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. This Agreement may not be assigned, sublicensed or otherwise transferred by either party without the other party's prior written consent except that either party may assign this Agreement without the other party's consent to any entity that acquires all or substantially all of such party’s business or assets, whether by merger, sale of assets, or otherwise, provided that such entity assumes and agrees in writing to be bound by all of such party’s obligations under this Agreement. In the event any judicial proceeding, lawsuit or claim is brought by one party against the other party in connection with this Agreement, the prevailing party shall be entitled to recover its reasonable fees and costs, including but not limited to attorneys’ fees, expert witness fees, consultant fees, and related costs and expenses. This Agreement constitutes the parties’ entire understanding regarding the Product, and supersedes any and all other prior or contemporaneous agreements, whether written or oral. If any provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the remaining provisions of this Agreement shall not be affected thereby.

13.2 Governing Law. This Agreement shall be governed by the laws of the State of California, U.S.A. without regard to conflict of laws principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.

13.3 Arbitration Agreement. Certain portions of this Section are deemed to be a "written agreement to arbitrate" pursuant to the Federal Arbitration Act ("FAA"). You and Tailcards expressly agree and intend that this Section satisfies the "writing" requirement of the Federal Arbitration Act. This Section can only be amended by mutual agreement. For purposes of this Section, "Claims" means collectively, and without limitation, any and all claims, injuries, demands, liabilities, disputes, causes of action (including statutory, contract, negligence, or other tort theories), proceedings, obligations, debts, liens, fines, charges, penalties, contracts, promises, costs, expenses (including attorneys' fees, whether incurred pre-litigation, pre-trial, at trial, on appeal, or otherwise), damages of any kind whatsoever (including consequential, compensatory, or punitive damages), or losses (whether known, unknown, asserted, non-asserted, fixed, conditional, or contingent) that arise from or relate to (i) the Product or Generated Code, including any and all contents, materials and software related thereto, and/or (ii) Your use of the Product or Generated Code.

13.3.1 Informal Dispute Resolution. If any Claim arises out of or relates to the Product or Generated Code or this Agreement, other than as may be provided herein, then You and Tailcards agree to send notice to the other providing a reasonable description of the Claim, along with a proposed resolution of it. Tailcards's notice to You will be sent based on the most recent contact information that You provided Tailcards. If no such information exists or if such information is not current, Tailcards has no obligation under this Section. For a period of sixty (60) days from the date of receipt of notice from the other party, You and Tailcards will engage in a dialog to attempt to resolve the Claim, though nothing will require either You or Tailcards to resolve the Claim on terms with respect to which You and Tailcards, in each of the parties' sole discretion, is not comfortable.

13.3.2 Applicable Law. If You and Tailcards cannot resolve a Claim, within sixty (60) days of the receipt of the notice, then You agree that that any such Claim and all other disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including, but not limited to any claim that all or any part of this Agreement is void or voidable, or whether a claim is subject to arbitration relating to Your use of the Product or Generated Code, will be resolved by binding arbitration, rather than in court. The FAA, not state law, shall govern the arbitrability of such disputes, including the class action waiver below. However, You and Tailcards agree that California state law or United States federal law shall apply to, and govern, as appropriate, any and all Claims or disputes arising between You and Tailcards regarding this Agreement and the Product or Generated Code, whether arising or stated in contract, statute, common law, or any other legal theory, without regard to choice of law principles. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator must follow the terms of this Agreement as a court would. THIS SECTION, INCLUDING THE PROVISIONS ON BINDING ARBITRATION AND CLASS ACTION WAIVER, SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT, YOUR ACCOUNT OR THE PRODUCT.

13.3.3 Arbitration Request. To begin an arbitration proceeding, You must send a letter requesting arbitration and describing Your claim to Tailcards at 440 N Barranca Ave #4133, Covina, CA 91723. The arbitration will be conducted by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. Payment of all filing, administration and arbitrator fees will be governed by JAMS's rules. The arbitration shall take place in San Francisco, California or at such other venue (and pursuant to such procedures) as is mutually agreed upon. You can obtain JAMS procedures, rules, and fee information as follows: JAMS: 800.352.5267 and https://www.jamsadr.com.

13.3.4 Dispute Fees. You and Tailcards will pay the administrative and arbitrator's fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Tailcards to pay a greater portion or all of such fees and costs in order for this Section to be enforceable, then Tailcards will have the right to elect to pay the fees and costs and proceed to arbitration. Arbitration rules may permit Tailcards to recover attorneys' fees. Tailcards will not seek to recover attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous.

13.3.5 Class Action Waiver. YOU AND TAILCARDS EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. You and Tailcards each agree that such proceeding shall take solely by means of judicial reference pursuant to California Code of Civil Procedure section 638.

13.3.6 Exceptions. Notwithstanding the agreement to resolve all disputes through arbitration, You or Tailcards may bring suit in court to enjoin infringement or other misuse of intellectual property rights (including patents, copyrights, trademarks, trade secrets, and moral rights, but not including privacy rights). You or Tailcards may also seek relief in small claims court for Claims within the scope of that court's jurisdiction. In the event that the arbitration provisions above are found not to apply to You or to a particular Claim, either as a result of Your decision to opt-out of the arbitration provisions or as a result of a decision by the arbitrator or a court order, You agree that the venue for any such Claim or dispute is exclusively that of a state or federal court located in San Francisco County, California. You and Tailcards agree to submit to the personal jurisdiction of the courts located within San Francisco County, California for the purpose of litigating all such Claims or any other disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement or Your use of the Product or Generated Code in the event that the arbitration provisions are found not to apply. In such a case, should Tailcards prevail in litigation against You to enforce its rights under this Agreement, Tailcards shall be entitled to its costs, expenses, and reasonable attorneys' fees (whether incurred at or in preparation for trial, appeal or otherwise) incurred in resolving or settling the dispute, in addition to all other damages or awards to which Tailcards may be entitled.

13.3.7 Restrictions. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR TAILCARDS WANT TO ASSERT A DISPUTE AGAINST THE OTHER, THEN YOU OR TAILCARDS MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH HEREIN) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES OR IT WILL BE FOREVER BARRED. "Commencing" means, as applicable: (i) by delivery of written notice as set forth herein; (ii) filing for arbitration with JAMS as set forth herein; or (iii) filing an action in state or federal court. This provision will not apply to any legal action taken by Tailcards to seek an injunction or other equitable relief in connection with any losses (or potential losses) relating to the Product or Generated Code, intellectual property rights of Tailcards, and/or Tailcards's provision of the Product or Generated Code.

13.3.8 Opt-Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of Your decision to opt-out to: [email protected] with the subject line "COMPANY ARBITRATION AND CLASS ACTION WAIVER OPT-OUT". The notice must be sent within thirty (30) days of Your first use of the Product or Generated Code, otherwise You shall be bound to arbitrate any disputes in accordance with this Agreement providing for binding arbitration. If You opt-out of these arbitration provisions, Tailcards also will not be bound by them.

Last update April 28, 2024

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