NOTICE: We have revised the Terms of Service as of the date set forth below. By continuing to use our Service after that date, you are accepting the updated terms as presented.
Effective Date: June 1, 2023
These terms and conditions comprise a legally binding agreement between You and NumberAI, Inc. (“Agreement” or “TOS”) for the Numa Service (“Service”). The words “NumberAI, “we” or “us” refer to NumberAI, Inc. and its affiliated entities and our respective successors, employees, directors, agents, permitted assigns and suppliers providing services under this Agreement, unless described differently below. The word "You" or “your” refers to the business customer, whether a legal entity or an individual person entering into this Agreement, and any person that uses the account for that business.
Because there are laws that apply to certain types of messages that You may send via the Service and/or the content in messages sent and received via the Service, please read the terms and conditions below carefully. You are solely responsible for determining the applicability of and your compliance with any such laws.
IF YOU ARE ACCEPTING THESE TOS ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT (A) YOU HAVE FULL LEGAL AUTHORITY TO BIND THE BUSINESS; (B) THE BUSINESS IS ENTERING INTO A LEGAL AGREEMENT WITH NUMBERAI, WILL BE BOUND BY THE TERMS AND CONDITIONS PRESENTED BELOW WITHOUT CHANGE, AND CONSENTS TO HAVE THE TOS PROVIDED IN ELECTRONIC FORM.
ABOUT THE SERVICE
Account Registration. To use the Service, You must open an account with us (“Account”). In establishing your Account, You will provide personally identifiable information, as well as non-personally identifiable information and you represent and warrant that you have the authority to provide such information. You will provide and maintain complete and accurate information, including contact information and email address that we will use to send notices required and/or permitted under these TOS. If you do not include an email address, then you will not receive notices via email. You are responsible for keeping your Account password(s) secure. You are entirely responsible for any activities that happen through your Account – until You notify us of a breach of your Account, close your Account or prove that your account security was compromised due to a fault of our systems. You are prohibited from selling, trading or otherwise transferring your Account or any information therein to another entity. We reserve the right to suspend or terminate your Account due to inaccurate and/or incomplete information and/or for your failure to comply with the account requirements and/or the Service Requirements.
Service Requirements. You will comply with other Service requirements, policies and features available at https://www.numa.com/legal/requirements and which You expressly agree are subject to change by us in our sole discretion during the Term (each and collectively “Service Requirements”). When we modify the Service after we post Service Requirements, including without limitation any changes, additions and/or deletions, your use of the Service after we post and send an email notice (i.e. if an email address is included in your Account) regarding such changes, will represent your acceptance of the then-current Service Requirements.
We reserve the right and retain the ability to access your Account for purposes of providing the Service including, without limitation, assisting with account administration, reviewing Content in your Account (including messages), enabling your use of service features, providing customer support, reviewing performance metrics and otherwise facilitating your use of the Service.
Payment of Fees for the Service. By entering into this Agreement, You acknowledge and agree that, except for any trial period that may be applicable, the Service is subject to You paying applicable fees which may include monthly recurring fees, usage fees, non-recurring fees, (collectively “Service Fees”) as well as applicable taxes, surcharges and/or other fees that we are required or permitted to impose, if any, (collectively “Other Fees” and with Service Fees will be referred to as “Charges”). You will timely pay the Charges for the Service. Other Fees will be based on the bill-to address. We reserve the right to suspend or terminate your Account without notice if You fail to pay any Charges and we reserve the right to pursue any and all legal remedies to collect the amounts owed by You and You will reimburse us for reasonable attorneys’ fees and any other collection costs. Charges will be billed in advance of the given Service Period. If Your Account is terminated prior to the end of the then-current Service Period, You will not be eligible for a prorated refund of any portion of amounts paid. If You provide a credit card for payment of Charges, (a) you authorize us to charge Your chosen financial institution, credit card issuer or other provider (the “Payment Provider”); (b) Your Account will be automatically setup for credit card auto-renewal (i.e. monthly, yearly) by default, using the credit card information You include in Your Account; (c) billing will commence on the date You complete the Account registration; and (d) You will maintain a current and active credit card as part of your Account. If we do not receive payment from Your Payment Provider, You will pay all amounts due on Your account upon demand.
Limited License for Service App. Provided You comply with all terms and conditions of this Agreement, we grant You a limited, non-exclusive, non-transferable, revocable license (without the right to sublicense) to download and use the Service Messaging App (“Service App”) during the Term solely for purpose of using the Service, in accordance with the written materials we may provide, if any, (“Documentation”), in conjunction with the telephone number(s), Facebook account and/or any other account(s) that You provide to us. The Service App includes updates that we may voluntarily provide, if any.
Content in Messages. You grant us a worldwide, non-exclusive, royalty-free, fully-paid, transferable, irrevocable, perpetual and sub-licensable right and license to use, reproduce, modify, adapt, publish, prepare derivative works of, distribute, publicly perform, and publicly display any content included in any type of message sent and/or received through your Account (“Content”) throughout the world in any media for any reason, including to provide, promote, incorporate into and/or improve the Service. You retain all rights in your Content, subject to your grant to us. You represent and warrant that Content You create is accurate and not in violation of applicable law or agreement. Your Content will comply with the Service Requirements. We exercise no control over the Content. Notwithstanding anything else in these TOS, during the Term, we reserve the right to remove Content if we reasonably believe You have violated the TOS, or at any time and for any reason provided that we provide You with 5 business days written notice.
Reasonable Usage Limits. You will use the Service to send a reasonable volume of messages. Your use of the Service and/or individual service features will not be excessive or constitute unreasonable usage which we reserve the right to determine in our sole discretion. You acknowledge and agree that Service Requirements we may adopt during the Term include usage limits for the Service.
Your Consent to Data Collection; Use of Personal Information. By entering into this Agreement, You authorize us to collect, use and disclose personal information (including for example purposes only, name, email address, and telephone number of people that access and/or use your Account and of your customers) necessary to enable delivery of the Service, including without limitations, functions incidental and necessary to such delivery (“Personal Information”). Personal Information may include Customer Information as defined under Gramm-Leach Bliley Act (GLBA)(i.e. 47 C.F.R. § 314.2(b)). We will use Personal Information, including without limitation, any Customer Information, solely to provide the Service and will maintain Personal Information only for as long as necessary to provide the Services. We will not retain, use or disclose Personal Information outside of the direct business relationship between You and us. Upon your request, we will destroy your Personal Information (subject to any applicable laws governing data retention).
Notwithstanding anything to the contrary stated herein, or any future versions of this Agreement, we will develop, implement and maintain an information security program that includes administrative, technical and physical safeguards in compliance with applicable laws to protect Personal Information, including safeguards appropriate for Customer Information that we may receive from You. Our information security program will seek to (1) protect the security of Customer Information; (2) protect against reasonably anticipated threats or hazards to such information; and (3) protect against unauthorized access to or use of such information. We will, upon Your reasonable request, and no more than annually, complete a written questionnaire that you provide to us with respect to our information security program. We will, upon your commercially reasonable written request, complete an annual written questionnaire, provided by you, with respect to our adequacy of safeguards related to customer information received from you pursuant to this agreement.
With respect to any non-personal information, aggregated information or anonymized data which cannot reasonably be used to identify You or any person, we may collect and use such data for purposes of providing the Service and we will not provide, sell or transfer such data to third parties (other than our subcontractors/service providers for purposes of our performing under this Agreement).
Regulatory Investigations. Upon written notice from You, NumberAI will assist You in the event of an investigation by any regulator, including a data protection authority, if and to the extent that such investigation relates to Customer Information You provided to us pursuant to these Terms. Such assistance will be at your expense to the extent it requires assistance beyond our administrative personnel.
Customer Support. For any questions You may have about the Service, including but not limited to billing questions, You should first review the FAQ and help topics available from your Account. If You still have a question, You may contact us via email or chat from your Account.
Maintenance, Modifications, Discontinuance. We reserve the right to – with or without notice– perform maintenance, modify, replace, refuse access to, limit access to or discontinue the Service, partially or entirely and we will have no liability to You or any third party should we exercise such rights. While we are not required or obligated to provide updates, You may be required to update software to continue using the Service and so we will automatically check the software version You are currently using and download software updates, including configuration changes. Any such updates are subject to these TOS unless other terms accompany the updates, in which case, those other terms apply. We are not responsible for supporting the version of software and/or device that You used when subscribed to the Service.
Suspension. Without prejudice to any other rights, we reserve the right to suspend your Account and/or your access to the Service (a) upon providing notice if we reasonably believe there is an emergency or security-related issue; (b) after providing 24-hours prior notice. Should we exercise such right, we will have no liability to You or any third party.
Restrictions on the Service. Since we own the Service, including but not limited to the Service App, we retain all right, title and interest to it (including but not limited to derivative works) and the Intellectual Property Rights therein, You will not and You will not permit others to do any of the following: sublicense, rent, lease, timeshare, use via a service bureau or otherwise make available to third parties except as provided herein, copy, modify, create derivative works of the Service; remove or alter any copyright notices, proprietary information notices or restricted rights notices or other information provided as part of the Service; or translate, reverse engineer, decompile, disassemble, or otherwise reduce to human perceivable form any software portion of the Service. "Intellectual Property Rights" mean all intellectual property rights, including, without limitation, designs, patent, copyright, trademark, and trade secret and other intellectual property or proprietary rights arising under the laws of any jurisdiction. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO US.
Customer Messages, Customer Orders and Other Third Party Materials. You acknowledge and agree that the Service is subject to services, including software, equipment, network(s), among other things, for which we have no control, and we assume none and will have no liability for such including, for example purposes only, messages delayed and/or not sent/received. We do not process any credit card information for orders that your customers may submit to You via the Service as those will be processed by a third party. As between You and us, You will be responsible for arranging such services and are solely liable for any such services that You offer to your customers.
TERM AND TERMINATION
This Agreement will commence on the date You agree to it and will continue on a monthly basis, unless You agree in writing to a longer term of service (each a “Service Period” and collectively the “Term”). Unless stated otherwise herein, either party may terminate the Agreement by providing written notice at least 30 days prior to the first day of the next Service Period. Upon termination of this Agreement, (a) the rights and licenses granted to You under this Agreement will immediately terminate, including your license to the Service App, and You will immediately cease using it; and (b) any accrued amounts due will be immediately due. If You subscribed to and paid all fees for a NUMA Automotive Plan during the Term, then upon termination, unless both You and us agree to a longer period in writing, Content in your Account as of the termination date will be available for a one-year period commencing on the termination effective date (“Retention Period”). To request a copy of such Content, You must contact us at firstname.lastname@example.org prior to the expiration of the Retention Period. Unless stated otherwise, the rights and obligations of the parties set forth in Payment of Fees, Content in Messages, Restrictions on the Service, Term and Termination, Warranty Disclaimer, Limitation of Liability and Indemnity, and Governing Law will survive termination or expiration of this Agreement for any reason.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE PROVIDE THE SERVICE (INCLUDING ANY SOFTWARE PROGRAMS) ON AN “AS IS,” “AS AVAILABLE,” BASIS AND WITH ALL FAULTS; WE DO NOT WARRANT UNINTERRUPTED USE OR OPERATION OF SERVICE OR THAT ANY DATA SENT BY OR TO YOU WILL BE TRANSMITTED IN UNCORRUPTED FORM OR WITHIN A REASONABLE AMOUNT OF TIME. WE DO NOT WARRANT THE ACCURACY OR RELIABILITY OF ANY DATA OBTAINED THROUGH THE SERVICE.
WE DO NOT PROVIDE ANY EXPRESS WARRANTIES OR REPRESENTATIONS FOR THE SERVICE (INCLUDING THE SERVICE APP OR ANY OTHER SOFTWARE). TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WITH RESPECT TO THE SERVICE, WE DISCLAIM ANY AND ALL IMPLIED WARRANTIES AND REPRESENTATIONS, INCLUDING, WITH OUTLIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. IF YOU ARE DISSATISFIED OR HARMED BY THE SERVICE OR ANYTHING RELATED TO THE SERVICE, YOU MAY CEASE USE OF THE SERVICE AND CANCEL YOUR ACCOUNT IN ACCORDANCE WITH THE TERMS INCLUDED HEREIN, AND THIS WILL BE YOUR SOLE AND EXCLUSIVE REMEDY.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM AND IN NO EVENT WILL WE BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR: LOSS OF PROFITS OR REVENUES, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, CORRUPTION OR LOSS OF DATA, FAILURES TO TRANSMIT OR RECEIVE DATA OR ANY OTHER PECUNIARY LOSS WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE SERVICE OR OTHERWISE IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE, YOUR ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.
NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF NUMBERAI RELATED IN ANY WAYTO THE SERVICE PROVIDED UNDER THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY FOR ALL OF THE FOREGOING WILL BE LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED THE GREATER OF (A) THE AMOUNT OF FEES RECEIVED BY US IN CONNECTION WITH YOUR USE OFTHE SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY; OR (B) $20,000. THIS LIMITATION WILL NOT LIMITYOUR RESPONSIBILITY FOR THE PAYMENT OF ALL PROPERLY DUE FEES RELATED TO THE SERVICE.
THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY (C) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE; (D) REGARDLESS OF WHETHER YOU BASE YOUR CLAIM ON CONTRACT, TORT, STATUTE OR ANY OTHER LEGAL THEORY, AND/OR WE KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGES. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
We will indemnify, defend, and hold You, your employees, directors, agents, affiliates and representatives harmless from and against any and all claims, costs, losses, damages, judgments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim that (a) our breach of the Agreement caused the unauthorized disclosure of Personal Information; (b) by a third party that the Service infringes or misappropriates a third party’s intellectual property right. Our indemnification obligation will not apply to the extent that any claim and/or damages arise from modifications to the Service not made by us, use of the Service with any products or software not provided by us, and/or use of the Service that is not consistent and/or permitted with this Agreement.
You will indemnify, defend, and hold NumberAI, our employees, directors, agents, affiliates and representatives harmless from and against any and all claims, costs, losses, damages, judgments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim by a third party that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties and/or obligations set forth herein; (b) your wrongful or improper use of the Services; and (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights.
Use of Your Name. We will not display your company name, logo or any marks on our website or marketing materials without your prior written consent.
Miscellaneous. Neither party will have the authority or power to bind the other Party or to contract in the name of or create a liability against the other party in any way or for any purpose. You will not assign this Agreement or any rights or obligations hereunder, directly or indirectly, by operation of law, merger, acquisition of stock or assets, or otherwise, without our prior written consent. Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns. This is the entire agreement between the parties relating to the subject matter hereof and all other terms are rejected and this Agreement supersedes all prior proposals, understandings, and agreements, whether oral or written, between the parties. This Agreement does not create any third party beneficiary rights. No waiver or modification of this Agreement will be valid unless in writing signed by each party. The waiver of a breach of any term hereof will in no way be construed as a waiver of any term or other breach hereof. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law the remaining provisions of this Agreement will remain in full force and effect. We may utilize subcontractors/service providers for performing under these terms and are not required to obtain your prior written approval for such subcontractors/service providers.
We reserve the right to modify, supplement or replace the terms of the Agreement and You agree to comply with such changes which will be effective upon us posting and notifying You as permitted herein (“Amendment Notice”). For clarity, the updated version will supersede all prior versions. Your use of the Service after we have provided such notice will represent your acceptance of the new terms. If any modified terms and conditions have a material and adverse impact on You, You may provide notice to us of such within thirty (30) days of the Amendment Notice date. If we do not affect revisions that remedy such adverse and material effect, then within thirty (30) days after You send such notice, as your sole remedy, You may terminate the Service on thirty (30) days written notice. You agree that your use of the Service after such thirty-day period will represent your acceptance of the given, updated version.
Governing Law. This Agreement, and all disputes arising out of or related thereto, will be governed by and construed under the laws of the State of California without reference to conflict of laws principles. Each party consents to the personal and exclusive jurisdiction and venue of state and federal courts located in California. Any action or proceeding by You relating to any dispute related to this Agreement must commence within one year after the cause of action accrues.
Notices. YOU CONSENT TO TRANSACT ELECTRONICALLY WITH US AND THAT WE MAY PROVIDE NOTICES BY EMAIL (PROVIDED THAT YOU ADD AND MAINTAIN AN EMAIL ADDRESS IN YOUR ACCOUNT), TEXT MESSAGES AND/OR VIA MESSAGES THROUGH THE SERVICE/SERVICE APP. Standard message and data rates may apply to the text messages. Receipt of any such notice is the day that the notice is sent or posted by us.
You will provide notice to us at the following address: email@example.com