To be eligible to register for an account with the NumberAI Affiliate Program, you must review and accept the NumberAI Affiliate Agreement. If you are an individual registering for an affiliate account on behalf of an entity, then you are accepting the Agreement for that entity and representing that you have the authority to bind that entity to the Agreement (and, in which case, the term Company as used in the Agreement will refer to that entity).
PLEASE REVIEW THE TERMS BELOW CAREFULLY. IF RESELLER DOES NOT AGREE TO BE BOUND BY THE TERMS IN THE AGREEMENT, THEN DO NOT AGREE TO THESE TERMS.
BY AGREEING TO THESE TERMS, YOU ARE ENTERING INTO THE AGREEMENT WITH NUMBERAI, INC. AND WILL BE BOUND BY THE TERMS AND CONDITIONS PRESENTED BELOW WITHOUT CHANGE AND YOU CONSENT TO HAVE THIS AGREEMENT PROVIDED TO YOU IN ELECTRONIC FORM.
This Affiliate Agreement (“Agreement”) is entered into by and between NumberAI, Inc., (“NumberAI"or “NAI”), and the person or entity that accepts these terms and conditions (“Company”). The Effective Date of this Agreement will be the date that the Company accepts the Agreement, which for reference includes terms that NumberAI includes in the Company’s account and on the AP Site (defined below) and which are hereby incorporated by reference.
1.1 NAI Services. NAI makes communication tools available to business customers to allow them to communicate with their customers, employees, partners and business associates,and these tools include, and are not limited to, features that allow business customers to send/receive SMS, Facebook Messages, voice messages and other types of messages to and from their customers, potential customers, vendors,and/or other persons and respond to voice mail messages with a text message sent to the caller (“NAI Services”). This Agreement sets forth the fees,terms and conditions that apply to the Company marketing to entities that may purchase the NAI Services. NAI reserves the right to modify the NAI Services during the Term. NumberAI will be under no obligation to provide any customer leads to Company or continue the marketing or provisioning of any NAI Service. NumberAI will be under no obligation to Company to continue NumberAI’s business.
1.2 Affiliate Program – AP Terms and Account Registration. Company must open an affiliate account in which it will provide and maintain complete and accurate information (“Company Account”). Company is responsible for keeping its account password(s) secure and is responsible for any activities related to access and use of its account. Company is prohibited from selling, trading or otherwise transferring its account or any information therein to any other person/entity. By entering into this Agreement, Company acknowledges and agrees that this Agreement includes additional fees, terms and conditions in the Company Account and on a website that NumberAI makes available (or any successor site that it may make available (“AP Site”) (collectively “AP Terms”) and all such are hereby incorporated by reference. Company will comply with AP Terms.
1.3 Amendments to the Agreement. NumberAI reserves the right to modify, supplement or replace the terms on this Agreement, including and not limited to the AP Terms, and Company will comply with such changes which will be effective upon posting and/or us notifying Company as permitted herein. For clarity, the updated version of any such terms will supersede all prior versions. Company’s on-going performance under the Agreement after NAI has provided such notice will represent Company’s acceptance of such terms. If any such changes have a material and adverse impact on Company, then Company may provide notice of such. If NumberAI does not affect revisions that remedy such adverse and material effect, then within thirty (30) days after Company sends such notice, Company’s sole remedy will be to terminate the Agreement by providing written notice.
1.4 Appointment. Subject to the terms herein, NAI appoints Company as an authorized referral partner of NAI in North America such that Company will refer customers for purposes of them purchasing NAI Services. This appointment as a referral partner is non-exclusive, whereby NAI may appoint other persons/entities as referral partners within any territory that Company does business. For purposes of Company marketing the NAI Services, NumberAI will provide Company with a unique URL and any entity purchasing NAI Services from such URL will be deemed a NAI Customer for which NumberAI will pay the fees as described herein.
1.5 Fees and Payment Terms. The fee payable to Company for customers purchasing NAI Services from Company’s URL will be a percentage of the fees included in such customer’s initial subscription for NAI Services (“Referral Fee”). Fees paid to Company are based on revenues collected for NAI Services from NAI Customer (and that does not include any taxes, surcharges or other amounts that NAI Customer may be required to pay to NAI) unless otherwise agreed upon in writing. Company is eligible for a Referral Fee in a given month, provided that the referred NAI Customer has paid NAI monthly retail fee(s) that equal or exceed the corresponding Referral Fee due for the given month. If NAI provides a credit to any NAI Customer for the NAI Services for which NAI has already paid the Referral Fee, then NAI will deduct the corresponding Referral Fee from the next monthly report, or alternatively, Company will pay such amount to NAI if no further Referral Fees will be paid to Company. The fees to be paid to Company under this Agreement and the corresponding payment terms are set forth in the Company Account and the AP Terms. NAI exclusively has full pricing and promotional discretion for any customer and/or NAI Services, including the ability to offer free trial period(s).
1.6 Company Sales Obligation. Company will (a) use best efforts to sell the NAI Services to its customers; (b)perform its duties in a diligent,efficient and workmanlike manner; (c) not make or solicit false, misleading, or deceptive statements or engage in false, misleading or deceptive marketing and/or advertising; (d) not make, orally or in writing, expressly or by implication, any other warranty about the NAI Services (e) comply with all laws, orders, codes, regulations, including without limitation the Telephone Consumer Protection Act, as well as industry-standards and best practices. Unless NAI provides prior, written approval, Company will not directly or indirectly utilize mass mailings and/or any other form of mass solicitations in promoting the NAI Services. Company is exclusively responsible for its own content,costs, and actions for all marketing and promotional efforts that it undertakes. NAI will not be obligated to pay any fees with respect to entities that received or receive any mass mailings and/or other form of mass solicitations utilized by Company.
1.7 General Representations. Company represents and warrants that: (a) it is validly existing and in good standing,and is qualified to do business, in each jurisdiction where it will conduct business under this Agreement; (b) the signing, delivery and performance of this Agreement by Company has been properly authorized; (c) all information provided will be to the best of its knowledge, truthful and accurate; and(d) neither this Agreement nor Company’s performance of or exercise of the rights under this Agreement, is contrary to, in conflict with, ineffective under, or requires registration or approval or tax withholding under, any applicable law or regulation or any agreement with a third party.
1.8 Suspension. NAI reserves the right to suspend,in whole or part, with or without notice, this Agreement. NAI will provide as much advance written notice as practicable or provide immediate written notice upon implementing any such suspension. NAI will not be liable for any damages,expenses or losses incurred as a consequence of any such suspension.
2.1 Term. The term of this Agreement will commence on the Effective Date and will automatically continue on a monthly basis (“Term”). Either party may terminate the Agreement by providing written notice to the other party.
2.2 Termination. Either party may terminate this Agreement, for cause, if the other party breaches this Agreement and does not remedy such failure within fifteen (15) business days after its receipt of written notice of such breach.
2.3 Effect of Termination. Upon the expiration or termination of this Agreement,(a) except for the right to accrued fees for NAI Customers that exist as of the date of expiration/termination or any amounts owed hereunder, all rights and licenses granted under the Agreement will immediately cease; (b) any amounts due and payable up to the effective date of termination of this Agreement will be paid as set forth in the AP Terms; (c)Company will discontinue any use of the name, logos, trademarks or slogans of NumberAI and the trade names or other designations of any of the NAI Service;(d) Company will discontinue all representations or statements from which it might be inferred that any relationship exists between NumberAI and Company;and (e) Company will return to NumberAI all property in Company’s possession,custody or control, including but not limited to Confidential Information in whatever form held (including copies or embodiments of Confidential Information); and (f) NAI will continue to provide NAI Services to NAI Customers, in its sole discretion.
2.4 Survival. Sections 2.3, 2.4, 3, 4, 5.4, 6, 7, 8 and 9 and any other section intended to survive will survive the expiration or termination of this Agreement for any reason.
3.1 NAI IP. As between the parties and subject to any express licenses grant herein, NAI, notwithstanding any terms to the contrary in this Agreement, owns all right, title and interest in and to its services, including but not limited to any software used to provide the NAI Services, all data collected and received from NAI Customers, any Intellectual Property Rights therein whether previously existing or newly created, and/or granted as Feedback (collectively, “NAI IP”). For the purpose of this Agreement, "Intellectual Property Rights" means all trademarks (including the goodwill attached thereto), know-how, copyrights, copyright registrations and applications for registration, patents, trade secrets, software, customer data and business information, author’s rights, moral rights, right of publicity, and contract and licensing rights, and all other intellectual property rights, recognized in any jurisdiction, as may exist now and/or hereafter come into existence, and all renewals and extensions thereof, whether registered or not.
3.2 Reservation of Rights. Each party reserves all rights not expressly granted in this Agreement and no licenses are granted by a party to the other party under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement.
3.3 NumberAI Trademarks. Company represents and warrants that, except as authorized herein, it will not use or register (or make any filing with respect to) any trademark,trade name or other designation used by NumberAI in connection with the NAI Service (“NumberAI’s Trademarks”) anywhere in the world. Company will not contest NumberAI ownership,use, registration or use authorized by NumberAI of any of NumberAI’s Trademarks or other designation relevant or similar thereto. Company acknowledges and agrees that Company has no interest in or right to NumberAI’s Trademarks. Company further acknowledges and agrees that all use of NumberAI’s Trademarks will inure to the benefit of NumberAI.
3.4 Feedback. Company will keep NumberAI informed of feedback from potential customers and NAI Customers, including without limitation, any problems encountered with the NAI Service and as to any resolutions discovered. Company will communicate promptly to NumberAI any and all modifications, design changes,improvements of the NAI Service, or new requirements suggested by any entity or person solicited by or making inquiries of Company or by any employee or agent of Company. Company further agrees that NumberAI is and will be the sole and exclusive owner of all right, title and interest in, to and relating to, and Company hereby assigns and otherwise transfers, any and all right, title and interest in and to any such actual or suggested feedback, modifications, design changes or improvements of the NAI Service, without the payment of any additional consideration therefore either to Company, its employees or agents, or to any NAI Customer.
4.1 Confidential Information. "Confidential Information" will be defined as any confidential, trade secret or other proprietary information of a Party (whether in oral, written, or other tangible or intangible form) whether before, on or after the Effective Date, which is marked as confidential (or with a similar designation) or which a party knows or should have known is confidential, given the facts and circumstances surrounding the disclosure of the information, including and in no way limited to: source code, software tools, designs, schematics, plans or any other information relating to any research project, work in process, future development,scientific, engineering, manufacturing, customer information related to this Agreement, marketing or business plan or financial or personnel matter relating to either party, its present or future products, sales, suppliers, customers,employees, investors or business (“Confidential Information”). The fees, terms and conditions included in this Agreement, including without limitation, any financial terms and/or any payments, are the confidential information of NAI. Additionally, any information that Company obtains about NAI Customers with respect to the NAI Services, including without limitation information related to Company’s providing support to NAI Customers,will be deemed confidential information of NAI.
4.2 Nondisclosure.Each party will hold in strict confidence and not disclose the other party’s Confidential Information except to their respective employees, agents and third party suppliers who have a need to know the information for performing under the Agreement and who are bound by a written confidentiality agreement at least as restrictive as the terms of this Agreement. Each Party will not use the other party’s Confidential Information for any purpose except as expressly permitted hereunder. Each party will protect the Confidential Information of the other party against unauthorized disclosure using the same degree of care, but no less than reasonable care as it uses to protect its own information of a similar kind.
4.3 Confidentiality Period. The obligations herein with respect to (a) Confidential Information other than trade secrets, including the duty not to disclose Confidential Information received hereunder, will continue and survive the termination of the Agreement for a period of five (5) years from the date of such termination; and (b) trade secrets will remain in effect for as long as such information will remain a trade secret under applicable law.
4.4 Exclusions.The obligations of confidentiality do not apply to information that (a) is generally known to the public or otherwise in the public domain other than through breach of confidentiality; (b) the other party can show was known to the recipient before receipt from the disclosing party; (c)is disclosed by a third party without breach of any obligation of confidentiality; or (d) is independently developed by the recipient without access to the other party’s Confidential Information. If a party becomes legally compelled to disclose the other party’s Confidential Information pursuant to court order, judicial process, or as otherwise required by law,then, if permitted to do so, the recipient party will immediately notify the other party of such request and will cooperate with its efforts to protect the Confidential Information from disclosure or disclosing it in a confidential manner.
4.5 Return of Information. Each party will return or destroy the Confidential Information of the other party upon written request and will provide a certificate of destruction at the other party’s written request.
4.6 Other Nondisclosure Agreements. The parties may enter into other nondisclosure agreements or supplements governing specific disclosures. To the extent that the terms governing a specific disclosure are more restrictive than the terms of the Agreement, the more restrictive terms will control regarding the specific disclosure.
5.1 Publicity. Neither Party will issue any press releases relating to the other Party or its products without the other party’s prior written approval. Notwithstanding the foregoing, each Party will have the right to include the other party’s logo and to reference its relationship with the other Party on its website(s) and in its sales presentations to customers.Otherwise, either Party may use the other Party’s name and/or logo for promotional, advertising and marketing materials (including the NAI website),only upon obtaining written consent from the other Party for any such use and such content will not be unreasonably withheld or delayed.
5.2 Independent Contractors. The relationship of NumberAI and Company is that of independent contractors, and nothing contained in this Agreement will be construed to: (a) give either party the power to direct or control the day-to-day activities of the other; (b) constitute the parties as partners, joint venturers, franchisors or franchisees, co-owners or otherwise as participants in a joint undertaking; and/or (c) except as expressly provided herein, allow either party to create or assume any obligations or commitments on behalf of the other party for any purpose whatsoever. The Parties agree that the commitments under this Agreement are non-exclusive.
5.3 No Authority. Company has no authority or power to act on behalf of NumberAI except for the marketing of NAI Services, solicitation of orders and providing support for the NAI Services as described herein. Except as expressly set forth herein, Company has no authority nor will it purport to have the authority to bind NumberAI to any fees, expenses, costs, terms of sale, terms of credit, refunds, advertising allowances, discounts or to any other representation, contract or commitment of any nature.
5.4 No Third Party Beneficiary. Company agrees and acknowledges that it is not and will not be a party to, nor an intended third-party beneficiary of, any written agreement between NumberAI and any NAI Customer.
NAI SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. NAI DOES NOT, AND CANNOT, WARRANT THAT SERVICES WILL BE UNINTERRUPTED AND/OR ERROR-FREE. EXCEPT AS EXPRESSLY STATED HEREIN, NAI DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THESE TERMS, THE NAI IP, ANY THIRD-PARTY SOFTWARE OR ANY CUSTOMER CONTENT WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT NAI KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), AND WARRANTIES OF NON-INFRINGEMENT OR CONDITION OF TITLE.
7.1 EXCEPT WITH RESPECT TO A PARTY’S BREACH OF SECTION 4 (CONFIDENTIAL INFORMATION) AND/OR A PARTY’S NEGLIGENCE AND WILLFUL MISCONDUCT, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE SPECIAL OR RELIANCE DAMAGES RELATED TO THIS AGREEMENT OR THE SERVICE PROVIDED HEREUNDER.CONSEQUENTIAL DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOST PROFITS, LOST REVENUES AND LOST BUSINESS OPPORTUNITIES, WHETHER THE OTHER PARTY WAS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES.
7.2 THE PARTIES HAVE NEGOTIATED THIS AGREEMENT WITH DUE REGARD FOR THE BUSINESS RISK ASSOCIATED WITH THE ARRANGEMENTS DESCRIBED IN THIS AGREEMENT. IN ANY EVENT, OTHER THAN A PARTY’S BREACH OF SECTION 4 (CONFIDENTIAL INFORMATION) AND/OR A PARTY’S NEGLIGENCE AND WILLFUL MISCONDUCT, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR DAMAGES UNDER THIS AGREEMENT THAT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY.
7.3 No action, regardless of form, arising from this Agreement may be brought by either party more than one year after the cause of action has accrued.
8.1 Informal Dispute Resolution. The Parties will promptly attempt to resolve any issue, dispute or controversy arising out of or relating to this Agreement among themselves.
8.2 Binding Arbitration. Any dispute arising out of or relating to this Agreement which is not resolved by the Parties will be resolved by final and binding arbitration conducted in Alameda County,California under the then current Commercial Dispute Resolution of the American Arbitration Association”("AAA"); provided however, either Party retains the right to apply to any court of competent jurisdiction worldwide to protect and enforce its intellectual property and other rights. The arbitration will be conducted by one arbitrator who is knowledgeable in the subject matter which is at issue in the dispute and who is selected by mutual agreement of the Parties or, failing such agreement, will be selected according to the AAA rules. The arbitrator will be able to decree any and all relief of an equitable nature, including but not limited to such relief as a temporary restraining order, a preliminary injunction, a permanent injunction, or replevin of property. The arbitrator will be able to award damages only if consistent with the terms of this Agreement. The Parties will share equally the arbitrator's fees and expenses pending the resolution of the arbitration and unless the arbitrator, pursuant to its right but not its obligation, requires the non‑prevailing Party to bear all or any portion of the costs of the prevailing Party. The decision of the arbitrator will be final and may be sued on or enforced by the Party in whose favor it runs in any court of competent jurisdiction at the option of such Party. The Parties will have such discovery rights as the arbitrator may allow.
8.3 Governing Law; Remedies; Enforcement. This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of law rules. The provisions of Section 8.2 may be enforced by any court of competent jurisdiction, and the party seeking enforcement will be entitled to an award of all costs, to be paid by the party against whom enforcement is ordered. For any action arising from or related to this Agreement for which arbitration is not required, each party expressly consents to the exclusive personal jurisdiction of the state and federal courts located in Alameda County, California, United States of America. All rights and remedies of the parties, under this Agreement, in law or at equity, are cumulative and may be exercised concurrently or separately. The exercise of one remedy will not be an election of that remedy to the exclusion of other remedies.
9.1 Notices. Unless otherwise expressly stated in this Agreement, any notices required or authorized to be given will be deemed to have been given when received via certified or registered mail, postage prepaid, or via any other public or private delivery service providing for written acknowledgment of receipt, as follows:
Attn: Legal Dept
456 8th St
Oakland, CA 94607
With a Copy to:
c/o NumberAI, Inc
456 8th St
Oakland, CA 94607
The contact name and address that Company maintains in its account.
9.2 Costs and Expenses. Except as expressly provided for elsewhere in this Agreement, each Party will be responsible for all costs and expenses incurred by such Party in performing its obligations or exercising its rights under this Agreement.
9.3 Entire Agreement. The terms and conditions in this Agreement, as may be amended, constitute the entire agreement with respect to the subject matter between the Parties as of the Effective Date. This Agreement cancels and supersedes any and all prior proposals (oral or written), understandings, representations,conditions, warranties, covenants and other communications between the Parties,which relate to the subject matter of this Agreement. This Agreement may not be amended or supplemented except as provided above, or pursuant to a written instrument signed by both Parties. A Party's waiver of any breach of this Agreement by the other Party will not constitute a waiver of any rights or any subsequent breach of the same or different provision hereof. To be enforceable, a waiver must be in writing signed by a duly authorized representative of the waiving Party.
9.4 Construction. This Agreement has been negotiated by the Parties and by their respective counsel. Each Party has the full power and authority to enter into this Agreement and when executed, this Agreement will constitute a valid and legally binding obligation of such Party, enforceable in accordance with its terms. In the event that this Agreement is translated into any other language, the English language version hereof will govern. The titles, headings and subheadings used throughout this Agreement are intended solely for convenience of reference and form no part of the terms and conditions of this Agreement. This Agreement may be executed in two or more counterparts, each of which, when so executed, will be deemed an original, but all of which counterparts together will constitute one and the same document. In case any provision of this Agreement is deemed, by a court of competent jurisdiction or arbitrator as described above, to be invalid, illegal or unenforceable, such provision will be construed so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of this Agreement; and if such provision will be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions hereof will not in any way be affected or impaired thereby. In the event of any conflict among this Agreement and any order for NAI Services, the terms and conditions of this Agreement will govern.
9.5 Force Majeure. Neither Party will be liable to the other for failure to fulfill obligations hereunder if such failure is due to causes beyond its control, including, without limitation,acts of God, earthquake, fire, flood, embargo, catastrophe, sabotage, utility or transmission failures, governmental prohibitions or regulations, national emergencies, insurrections, riots or wars, or viruses which did not result from the acts or omissions of such Party, its employees or agents, strikes, work stoppages or other labor difficulties, outage of any part of the network(“Force Majeure Event”). The time for any performance required hereunder will be extended by the delay incurred as a result of such Force Majeure Event.
9.6 Non-Assignability and Binding Effect. Company may not assign this Agreement, in whole or part, without the prior written consent of NumberAI. Any assignment in violation of this Section is null and void.
9.7 Electronic Transactions. To the extent permitted by local law, the parties agree to conduct transactions using an electronic commerce approach under which the parties will electronically transmit and receive legally binding agreements and amendment to the Agreement.