AFFILIATE PROGRAM AGREEMENT
Terms of Service
This Affiliate Program Agreement (this “Agreement”) is executed by and between Human AI Labs, Inc. d/b/a Personal AI, a Delaware corporation with offices located at 135 W 50th St Ste 200 New York, NY 10020-1210 (“Personal AI”) and you (“Affiliate”).
Personal AI and Affiliate may be referred to herein collectively as the “Parties” or individually as a “Party”.
WHEREAS, Personal AI provides human-to-human messaging leveraging AI that helps people collaborate, exchange ideas and deepen their relationships with others while prioritizing trust, transparency, and individual ownership (collectively, the “Service”); and WHEREAS, Affiliate desires to refer one or more customers to Personal AI in exchange for a mutually agreed-upon fee, and Personal AI desires to receive such referrals.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
- Solicitation and Qualified Customer Relationships.
- General. During the Term (as defined in Section 4.1), Affiliate will use its best efforts to solicit and refer Qualified Customers (as defined in Section 1.1(a)) to Personal AI. For purposes of clarity, Affiliate does not have any authority of any kind to accept any customers on behalf of Personal AI, and Personal AI does not have any responsibility or obligation of any kind to accept any prospective customer referred by Affiliate.
- Qualified Customers. As used herein, “Qualified Customer” means an individual or entity that accesses the Service for the first time and sets up an account on the Service using a Qualifying Link (as defined in Section 1.1(b)). For purposes of clarity, the term Qualified Customer does not include any customer that: (i) has already accessed the Service at the time of the referral and set up an account on the Service; or (ii) has already been referred to Personal AI by a third party at the time of the referral.
- Qualifying Links. As used herein, “Qualifying Link” means any type or format of link that is provided or authorized by Personal AI to be displayed and distributed by Affiliate.
- Compliance. The Parties recognize that this Agreement is subject to, and intended to comply with, all applicable local, state, and federal laws, rules, and regulations (“Applicable Laws”). The Parties agree that the services contracted for hereunder do not exceed those which are reasonably necessary to
accomplish the commercially reasonable business purposes of this Agreement. When soliciting potential customers for Personal AI, Affiliate will use only those marketing materials provided by Personal AI or expressly approved by Personal AI in writing.
- Use of Marks; Publicity. Affiliate grants Personal AI permission to use the trademarks, service marks, trade names, logos, symbols, or brand names (collectively, “Marks”) of Affiliate in connection with Personal AI’s website and marketing materials. Except as expressly permitted under this Agreement, Affiliate may not: (a) make any statement (whether oral or in writing) in any press release, external advertising, marketing, or promotion materials regarding Personal AI or its business unless Affiliate has received, in each instance, Personal AI’s prior written consent; or (b) use Personal AI’s Marks without Personal AI’s prior written consent.
- Fees. As consideration for Affiliate’s referral of Qualified Customers, Personal AI will pay to Affiliate the fees set forth on Exhibit A (the “Referral Fees”) for each Qualified Customer. Notwithstanding anything to the contrary herein, no Referral Fees will be due or paid to Affiliate in the event any such payment would constitute a violation of any Applicable Laws.
- Payments; Reporting.
- Payments. Personal AI shall pay Referral Fees due to Affiliate in accordance with Exhibit A within forty-five (45) calendar days after the end of each calendar quarter for all payments due with respect to such calendar quarter. Referral Fees will be paid via ACH to the account designated by Affiliate on Exhibit A. Affiliate shall supply Personal AI with all information necessary for Personal AI to remit payments to Affiliate under this Agreement and shall promptly notify Personal AI in writing of any changes to Affiliate’s payment information.
- Reporting. Personal AI shall provide, as Affiliate may reasonably request from time to time and in a format that is accessible and readable by Affiliate, reasonable reporting with information related to any Qualified Customers referred by Affiliate, including relevant sales data during the reporting period.
- Final Determinations. All determinations by Personal AI relating to Qualified Customers and the compensation due to Affiliate hereunder shall be final and binding to the extent permissible under Applicable Laws.
- Taxes. Affiliate shall pay all applicable taxes, duties, excises, or other charges imposed by any government entity in connection with the Referral Fees.
- Confidentiality. Each Party may from time to time disclose Confidential Information to the other Party. “Confidential Information” as used herein means all nonpublic information concerning the business, technology, internal structure and strategies of each Party, its affiliates, and any of its customers or vendors with which they do business that is conveyed to the other Party orally or in tangible form. Each Party will keep in confidence and trust and will not disclose or disseminate or permit any employee, agent, representative, independent contractor or other person working under its direction to disclose or disseminate, the existence, source content or substance of any of the other Party’s Confidential Information to any other person. Each Party will employ at least the same methods and degree of care, but no less than a reasonable degree of care, to prevent disclosure of the other Party’s Confidential Information as it employs with respect to its own Confidential Information. Each Party’s employees, agents, representatives, advisors, and independent contractors will be given access to the Confidential Information only on a need-to-know basis. The foregoing obligations will not apply to Confidential Information that: (a) is or becomes publicly available without breach of this Agreement; (b) the receiving Party lawfully receives from a third party not subject to a restriction on disclosure or other non- disclosure obligation; (c) the receiving Party knew prior to receiving such information from the disclosing Party, as demonstrated by files in existence at the time of disclosure; or (d) the receiving Party develops or acquires independently without use of or reference to the disclosing Party’s Confidential Information. It shall not be a breach of this Agreement for a Party to disclose Confidential Information if compelled to do so under Applicable Laws or in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by Applicable Laws, the disclosing Party has been given prior notice to permit such disclosing Party a reasonable opportunity to object to and/or limit the scope of such disclosure.
- Term; Termination.
- Term. Unless earlier terminated, this Agreement will become effective on the Effective Date and shall remain in effect for a period of one (1) year thereafter (the “Initial Term”). The Parties may extend this Agreement for additional one
(1) year periods (each, a “Renewal Term”) upon mutual agreement of both Parties prior to the end of the Initial Term or applicable Renewal Term. The Initial Term and any Renewal Term(s) are collectively referred to herein as the “Term”.
- By Personal AI. Personal AI may terminate this Agreement: (i) for cause, if Affiliate breaches or defaults in its performance of any material term of this Agreement and, to the extent the breach or default is capable of cure, fails to cure such breach or default within thirty (30) days of Affiliate’s
receipt of a written notice identifying the breach or default in reasonable detail; or (ii) for convenience, by providing Affiliate at least thirty (30) days’ prior written notice.
- By Affiliate. Affiliate may terminate this Agreement: (i) for cause, if Personal AI breaches or defaults in its performance of any material term of this Agreement and, to the extent the breach or default is capable of cure, fails to cure such breach or default within thirty (30) days of Personal AI’s receipt of a written notice identifying the breach or default in reasonable detail; or (ii) for convenience, by providing Personal AI at least sixty (60) days’ prior written notice.
- Effects of Termination; Survival. On termination of this Agreement, (a) Affiliate will promptly cease all solicitation and referral activities hereunder (b) each Party will promptly return or, at the disclosing Party’s request, destroy, all Confidential Information of the disclosing Party in the receiving Party’s possession, custody, or control, except as may be required to be maintained under Applicable Laws; and (c) Personal AI may continue to perform services for Qualified Customers and retain all fees paid by such Qualified Customers to Personal AI; provided that Personal AI will continue paying the Referral Fees with respect to such Qualified Customers until such Qualified Customers are no longer receiving services from Personal AI for which Referral Fees would be payable unless Personal AI terminates this Agreement under Section 4.2(a)(i), in which case Personal AI shall have no obligation to pay any further Referral Fees. Any provision of this Agreement that, by its term or its nature, should survive the termination of this Agreement, shall so survive, including Sections 3, 4.3, and 5 through 8 (inclusive).
- Representations and Warranties.
- Mutual Representations and Warranties. Each Party hereby represents and warrants to the other Parties that: (a) it will satisfy its obligations hereunder in a diligent and conscientious manner, and at all times in accordance with all Applicable Laws; (b) it will at all times have and maintain in full force and effect all applicable licenses, registrations, permits, and the like necessary for its performance of its obligations hereunder, including as may be required by Applicable Laws; (c) neither the execution nor the performance of this Agreement by such Party violates any Applicable Laws; (d) it is duly organized, validly existing, and in good standing in the jurisdiction of its formation; and (e) it is not, and has not ever been, the subject of any legal proceeding of any kind relating to the performance of obligations substantially similar to the obligations to be performed hereunder.
- Affiliate Representations and Warranties. Affiliate represents and warrants that is has not and will not engage in any unfair, anti-competitive, misleading, or deceptive practices respecting any referral or Qualified Customer made to Personal AI.
- Disclaimer of Other Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NO PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ORAL OR WRITTEN, AND HEREBY DISCLAIMS ANY AND ALL SUCH WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER ALLEGED TO ARISE BY LAW, BY USAGE IN THE TRADE, BY COURSE OF DEALING OR PERFORMANCE, OR OTHERWISE.
- Indemnification. Affiliate shall defend, indemnify and hold harmless Personal AI and its officers, directors, employees, sublicensees, customers and agents from and against any and all third party claims, suits, actions, allegations, or charges (“Actions”) and all related losses, liabilities, damages, expenses and costs (including attorneys’ fees and court costs) arising from or relating to: (a) any breach or alleged breach of any representation, warranty or other provision of this Agreement by Affiliate, or (b) any the negligence or willful misconduct of Affiliate. Personal AI will give Affiliate written notice of any such Action and Affiliate has the right to participate in the defense of any such Action at its expense. In no event will Affiliate settle any Action without Personal AI’s prior written consent.
- Limitation of Liability. IN NO EVENT WILL PERSONAL AI OR ITS OFFICERS,
EMPLOYEES, AGENTS, AND RELATED ENTITIES BE LIABLE FOR: (A) CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMIUNTION IN VALUE, ARISING OUT OF OR RELATING TO THIS AGREEMENT; OR (B) ANY LIABILITY, IN THE AGGREGATE, GREATER THAN THE REFERRAL FEES PAID AND/OR PAYABLE TO REFERRAL PARTNER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY. THE FOREGOING LIMITATIONS WILL APPLY REGARDLESS OF: (X) WHETHER THE DAMAGES WERE FORESEEABLE; (Y) WHETHER REFERRAL PARTNER WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES; AND (Z) THE LEGAL OR EQUITABLE THEORY (WHETHER CONTRACT, TORT, OR OTHERWISE) ON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Entire Agreement. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
- Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) must be in writing and addressed to the other Party at its address set forth above (or to any other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Any Notice sent to Personal AI must also be sent via email to support@Personal AI. Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
- Interpretation. For purposes of this Agreement: (a) the words “include,” “includes”, and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto”, and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (i) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (ii) to an agreement, instrument, or other document means the agreement, instrument, or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and
(iii) to a statute means the statute as amended from time to time and includes
any successor legislation thereto and any regulations promulgated thereunder. The Parties drafted this Agreement without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set out verbatim herein. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
- Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On a determination that any term or provision is invalid, illegal, or unenforceable, the court may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement and signed by an authorized representative of each Party. No waiver under this Agreement is effective unless it is in writing, identified as a waiver to this Agreement and signed by an authorized representative of the Party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated and does not operate as a waiver on any future occasion. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from this Agreement: (a) any failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under this Agreement; or (b) any act, omission, or course of dealing between the Parties.
- Cumulative Remedies. All rights and remedies provided in this Agreement are
cumulative and not exclusive unless expressly set forth herein, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or later be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
- Equitable Remedies. Each Party acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under Section 3, or Affiliate’s breach of Section 5.2, would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such Party of any of these obligations, the other Party shall, in addition to any and all other rights and remedies that may be available to such Party at law, at equity, or otherwise in respect of this breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages do not afford an adequate remedy. Each Party agrees that it will not oppose or otherwise challenge the appropriateness
of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section.
- Assignment. Affiliate may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Personal AI. Personal AI may assign any of its rights or delegate any of its obligations without restriction. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Agreement. This Agreement is binding on and inures to the benefit of the Parties and its respective permitted successors and permitted assigns.
- Independent Contractors. Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties or an employee/employer relationship. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any customer or other third party.
- No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and permitted assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- Choice of Law. This Agreement, including all exhibits, schedules, attachments, and appendices attached hereto and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of California, without regard to the conflict of laws provisions thereof to the extent these principles or rules would require or permit the application of the laws of any jurisdiction other than those of the California. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the state and federal courts located in San Diego, California and agrees to bring any action, litigation, or proceeding only in such courts. Each Party agrees that a final judgment in any action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Applicable Laws.
- Dispute Resolution. In the event of dispute, controversy or claim arising out of or
relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”), the Party seeking to settle the Dispute shall deliver Notice of the Dispute (each, a “Dispute Notice”) as set forth in Section 8.2. The Parties shall
negotiate in good faith to resolve the Dispute. If the Parties are unable to resolve any Dispute within thirty (30) calendar days after the applicable Dispute Notice’s delivery, the Parties agree to resolve the Dispute (excluding any claims for injunctive or other equitable relief as provided under Section 8.7) by binding arbitration by JAMS, Inc. (“JAMS”) under the Optional Expedited Arbitration Procedures then in effect, except as provided herein. The arbitration will be conducted in San Diego, California, unless otherwise agreed. Each Party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator may include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
- Counterparts. This Agreement may be executed in counterparts, each of which
is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission (including via DocuSign) is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
EXHIBIT A REFERRAL FEES
The Referral Fees consist of the following:
- Revenue Share. For each Qualified Customer that purchases a paid subscription for the Service, Personal AI will pay to Affiliate 25% of revenue actually received by Personal AI from such Qualified Customer during the applicable calendar quarter, excluding any applicable taxes, refunds, chargebacks, costs of collection, and other customary exclusions (“Excluded Costs”), for the shorter of (i) the duration that the Qualified Customer maintains an active account on the Service or (ii) twelve (12) months from the Qualified Customer’s purchase of the paid subscription.
- No Fraudulent Accounts. Personal AI shall not be liable for any payment based on any fraudulent account created by any person, robot, automated program, or similar device or program or for other fraudulent purposes as determined in Personal AI’s sole discretion.
- Excluded Costs. Personal AI may withhold from any amounts due to Affiliate hereunder (or, when appropriate, to invoice Affiliate for) any Excluded Costs that are assessed against Personal AI at any time, including any Excluded Costs which may impact Referral Fees from prior quarters.
- Final Determinations. All determinations by Personal AI relating to Qualified Customers and the compensation due hereunder shall be final and binding.