October 1, 2023.
These Terms and Conditions set forth the legal terms entered into between the Subscriber identified on the Service Order (“Subscriber
”) and Numero, Inc., a Delaware Corporation (“Numero
”), and are effective as of the Effective Date set forth on the Service Order. All terms not defined herein will be as defined in the Service Order.1. DEFINITIONS
1.1. “Digital Collectible
” means the blockchain-based non-fungible tokens (each, an “NFT
”) that embody Licensed Content and that are minted on the Numero Services and sold through the Electables Platform.
” means any Numero-provided user documentation, in all forms, relating to Numero Services (e.g., user manuals, online help files).
” means the individual or entity who is an existing donor, prospective donor, or potential donor to one or more of Subscriber’s campaigns.
1.4. “Donor Data
” means all information and data regarding Donors, transmitted to, stored on, and accessed by Subscriber on the Numero Services.
1.5. “Electables Platform
” means the publicly accessible NFT sales platform and the Subscriber specific landing page where NFTs can be sold to Donors.
1.6. “Licensed Content
” means the materials uploaded by Subscriber to the Numero Services for the purpose of minting the Digital Collectibles.
1.7. “Mobile App
” means any mobile application that Numero makes available for download onto Subscriber’s mobile device as part of its provision of the Numero Services.
1.8. “Numero Services
” means the web-based services subscribed to by Subscriber, as identified in the Service Order, which may include access to Numero CRM, Numero Processing, Numero RSVP Forms, and minting of Digital Collectibles and sale of Digital Collectibles on the Electables Platform.
1.9. "Service Order"
means any order form signed by the Subscriber and Numero that incorporates by reference these Terms and Conditions.
1.10. “Subscription Term
” means, with respect to each of the Numero Services, the Initial Subscription Term as set forth in the Signature Page and any Renewal Terms (as defined in Section 6.1) for such service.
” means the technical support that Numero provides as set forth in Appendix A.2. USE OF NUMERO SERVICES
2.1. Numero Accounts.
Subscriber must register an account with Numero to access and use the Numero Services. Subscriber may be allowed to register multiple accounts. Numero reserves the right to refuse registration of an account or cancel account passwords which it deems inappropriate.
2.2. Use of Numero Services.
Subject to the provisions of this Agreement, Numero grants to Subscriber a limited, non-exclusive, non-transferable (except as permitted in Section 11.2) right to access and use the Numero Services solely in connection with Subscriber’s lawful campaign operations, for the applicable Subscription Term.
2.3. Use of Documentation.
Subject to the provisions of this Agreement, Numero grants to Subscriber a limited, non-exclusive, non-transferable (except as permitted in Section 11.2) license, without right of sublicense, during the term of this Agreement to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with use of the Numero Services in accordance with this Agreement.
2.4. Use of the Mobile App.
Subject to the provisions of this Agreement, Numero grants to Subscriber a limited, non-exclusive, non-transferable (except as permitted in Section 11.2) right during the applicable Subscription Term to install and use the object code of the Mobile App on Subscriber’s (including Subscriber’s representatives’) mobile devices in order to access and use the Numero Services. Subscriber may install and use the number of copies of the object code equal to the number of accounts it can register.
2.5. Implementation Services.
Each account is offered an onboard training session with the Numero Customer Success team. The training is offered at no charge.
2.6. Technical Support.
For so long as Subscriber is current with its payment of the fees specified on the Signature Page, Numero will provide Subscriber with reasonable Support with respect to the Numero Services.
2.7. Use Restrictions.
Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Subscriber will not, and will not permit or authorize third parties to: (a) rent, lease, or otherwise permit third parties to use the Numero Services or Documentation; (b) use the Numero Services to provide services to third parties (e.g., as a service bureau); (c) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, how-how or algorithms related to the Numero Services; (d) modify, translate, or create derivative works based on the Numero Services; (e) remove any proprietary notices or labels of Numero; nor (f) circumvent or disable any security or other technological features or measures of the Numero Services.
Subscriber may not remove or export from the United States or allow the export or re-export of the Numero Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Offices of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR Section 2.101, any software and Documentation provided in connection with the Numero Services are “commercial items” and according to DFAR Section 252.227-7014(a)(1) and (5), are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR Section 227.7202 and FAR Section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by this Agreement.
2.9. Compliance with Laws.
Subscriber covenants to use the Numero Services (including via Mobile App), Digital Collectibles, Documentation, and Donor Data in compliance with all applicable laws and regulations.
2.10. Donor Data.
Donor Data, and any data that is based on or derived from Donor Data, is and will remain, as between Numero and Subscriber, owned by Subscriber. Subscriber hereby grants to Numero the right to process, transmit, store or disclose Donor Data to provide the Numero Services to Subscriber. Subscriber hereby represents and warrants that it has or will obtain and maintain, any necessary consent from Donors for Numero to exercise the foregoing license and provide the Numero Services.
2.11. Subscriber Data.
During the account registration process, Subscriber will be required to provide certain information, including username and email address. In addition, Subscriber may choose to submit or upload information and materials to the Numero Services which Subscriber desires to have displayed or communicated on or via the Numero Services (collectively, “Subscriber Data
”). Subscriber hereby grants to Numero the right to process, transmit, store or disclose Subscriber Data for the purpose of providing the Numero Services under this Agreement, and otherwise use the Subscriber Data Numero’s internal business purposes. Subscriber represents and warrants that it has the necessary rights in and to any Subscriber Data transmitted or otherwise provided to Numero.
2.12. Data License.
Notwithstanding anything to the contrary, Numero shall have the right to collect and analyze data and other information relating to the provision, use, and performance of the Numero Services and related systems and technologies, including Donor Data and Subscriber Data, and any data derived therefrom. Numero may (i) use such information and data to improve and enhance the Numero Services and for other development, diagnostic and corrective purposes in connection with the Numero Services and other Numero offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
2.13. Payment Processing Services.
Subscriber shall be responsible for registering and maintaining an account with Numero’s third party payment processor partner, such as Stripe, for purposes of collecting and remitting payments on behalf of Subscriber. By creating an account, Subscriber agrees to any terms and conditions of the third party payment processor. Numero shall provide all required platform infrastructure to enable processing contributions, tracking the flow of funds, and managing refunds and disputes. This Section 2.13 shall only apply to the extent Subscriber purchases any Numero Services that necessitate Numero to process payment on Subscriber’s behalf.
2.14. Protection against Unauthorized Use.
Subscriber will prevent any unauthorized use of the Numero Services, Documentation, Mobile App, Donor Data, and Subscriber Data, including by implementing technical, administrative, and organizational security measures to ensure the security, integrity and confidentiality of its information and data. Subscriber will (i) immediately notify Numero in writing of any actual or reasonably suspected accidental or unlawful destruction, loss, alteration, unauthorized disclosure or use of, or access to Donor Data or Subscriber Data (a “Security Incident
”); and (ii) will take all steps requested by Numero to terminate and remedy the Security Incident. Subscriber will cooperate and assist with any actions taken by Numero to prevent or terminate any Security Incident or unauthorized use of the Numero Services, Documentation, or Mobile App.
Unless otherwise stated in the Signature Page, Numero may use Subscriber’s name and logo to identify Subscriber as a Numero customer on Numero’s website and other marketing materials.
Subscriber may provide input and suggestions regarding Numero’s offerings, Documentation, and Mobile App from time to time (“Feedback
”). Subscriber hereby grants to Numero a perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit any Feedback in any manner and for any purpose.
2.17. Reservation of Rights.
Numero grants to Subscriber a limited right to use the Numero Services and Documentation under this Agreement. Numero reserves to itself all rights to the Numero Services and Documentation not expressly granted to Subscriber in accordance with this Agreement.3. DIGITAL COLLECTIBLES
3.1. Digital Collectible Services.
Subject to the terms and conditions of this Agreement, Subscriber may mint Digital Collectibles using the Licensed Content through the Numero Services. Subscriber may offer for sale and distribute the Digital Collectibles through the Electables Platform for purchase by Donors. Subscriber will set the price for the Digital Collectibles. Numero Services include email notifications to donors who have purchased Digital Collectibles, showing available Digital Collectibles in an Electables Platform gallery.
Subscriber hereby grants to Numero a worldwide, non-exclusive right and license during the term of this Agreement to: (a) use, reproduce, and modify the Licensed Content to mint the Digital Collectibles; (b) market, promote, offer for sale, distribute, and sell Digital Collectibles through the Electables Platform; and (c) grant buyers (including secondary buyers) of the Digital Collectibles the right to use the Licensed Content, solely as embodied in the applicable Digital Collectibles itself. The parties agree that the rights granted by Subscriber under subclause (c) are perpetual and irrevocable with respect to Digital Collectibles purchased by Donors. Except for the licenses granted in this Agreement, Subscriber retains all right, title, and interest in and to the Licensed Content and the Digital Collectibles.
3.3. Subscriber’s Acknowledgements.
The Subscriber acknowledges and agrees that Numero makes no representation or promise as to any value (or lack thereof) in the Digital Collectibles.
3.4. Subscriber Warranties.
Subscriber warrants that (a) it is sufficiently experienced and educated to make decisions regarding the use of Digital Collectibles; and (b) that it has all necessary experience, resources, certificates, licenses, permits and approvals to use Licensed Content to create the Digital Collectibles, to grant all rights it has granted in accordance with this Agreement, and to meet all other obligations under and in accordance with this Agreement.4. COMMUNICATIONS CENTER SERVICES
4.1. Communications Center Services.
Numero uses certain third-party services to provide the Communications Center services.
By using the Communications Center services, Subscriber understands that it is subject to MessageBird
4.2. Prohibited Conduct.
Subscriber will not send emails with (i) content that is prohibited by applicable law in the jurisdiction where the message recipient lives; (ii) hate speech harassment, exploitative, abusive, or any communications that originate from a hate group; (iii) fraudulent, criminal, and/or misleading content; (iv)malicious content, such as malware or viruses; (v) content that violates third party email provider terms; and (vi) any content that is designed to intentionally evade filters. Additionally, Subscriber will not send emails to email addresses that Subscriber knows to be invalid or problematic for security, fraud, or other legal reasons. Numero may refuse to send any emails for any reason, including if Numero believes the emails breach this section.5. CONFIDENTIALITY
The parties acknowledge that each party (“Discloser
”)may disclose, directly or indirectly, to the other party (“Recipient
”) information that is confidential or sensitive and that is either marked clearly as “Confidential” or would reasonably be understood to be confidential given the nature of the information or circumstances of disclosure (“Confidential Information
”) including any business, technical or financial information relating to the Discloser, non-public information regarding the features, functionality, and performance of the Numero Services, Donor Data, Subscriber Data, research, product plans, products, services, customer lists, development plans, inventions, processes, formulas, technology, designs, drawings, marketing strategy. Confidential Information is the sole property of its Discloser. “Confidential Information” does not include any information that: (i) was publicly known and made generally available prior to the time Discloser disclosed the information to Recipient; (ii) became publicly known and made generally available, after disclosure to Recipient by Discloser, through no wrongful action or inaction of Recipient; (iii) was in Recipient’s possession, without confidentiality restrictions, at the time of disclosure by Discloser, as shown by Recipient’s files and records; (iv) was independently developed by Recipient without use of Discloser’s Confidential Information; or (v) is required to be disclosed by law, provided that Recipient shall give Discloser prompt notice of such requirement and reasonably assist Discloser in obtaining a protective order.
5.2 Nondisclosure and Non-use.
During and after the term of this Agreement, Recipient will (i) not use the Confidential Information for any purpose other than as provided by this Agreement; and (ii) protect the Confidential Information from unauthorized access or disclosure by third parties. Recipient will take reasonable precautions to prevent any unauthorized disclosure of the Confidential Information. Recipient will not reverse engineer, disassemble, or decompile any prototypes, software, or other tangible objects that embody Confidential Information and that are provided to Recipient in accordance with this Agreement. Nothing in this Agreement is intended to grant any rights to Recipient under any patent, copyright, or other intellectual property right of Discloser, nor will this Agreement grant Recipient any rights in or to the Confidential Information, except as expressly set forth in this Agreement.6. FEES AND PAYMENT
6.1. Fees and Payment Terms.
Subscriber will pay Numero the fees and any other amounts owing under this Agreement as specified in the Service Order. If indicated in the Service Order, Subscriber may (solely through an Administrator) upgrade or downgrade a Numero Service at any time by emailing Numero at [email protected]
, which may result in a change in the fees. The new fees will be as specified in the Service Order for the new level of Numero Service purchased. If Subscriber is upgrading, Subscriber will pay the difference between the old fees and the new fees, unless otherwise specified by Numero, and if Subscriber is downgrading, Subscriber will pay the lower subscription fee during the next Subscription Term. Numero may, at any time, require Subscriber to keep a default payment method on file with Numero or its third party payment processor. Unless otherwise specified in the Service Order, Numero may either (a) invoice Subscriber and Subscriber will pay all amounts due within 10 days of the date of the applicable invoice or (b) automatically charge all amounts due to the payment method that Subscriber has on file with Numero or its third party payment processor.
Unless otherwise specified in the Service Order, Numero may either (a) invoice Subscriber and Subscriber will pay all amounts due within 10 days of the date of the applicable invoice or (b) automatically charge all amounts due to the payment method that Subscriber has on file with Numero or its third party payment processor. Any amount not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Numero to collect any amount that is not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason. All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars.
If a Donor initiates a chargeback or payment dispute with the third party payment processor or Numero, Numero or its third party payment processor may, automatically and without notice, (a) withdraw the disputed amount from Subscriber’s payment method on file and (b) charge a fifteen (15) dollar dispute fee.
Other than net income taxes imposed on Numero, Subscriber will bear all taxes, duties, and other governmental charges (collectively, “Taxes
”) resulting from this Agreement. Subscriber will pay any additional Taxes as are necessary to ensure that the net amounts received by Numero after all such Taxes are paid are equal to the amounts that Numero would have been entitled to in accordance with this Agreement as if the Taxes did not exist.
6.4. Additional Terms.
Numero reserves the right to change its fees upon 30 days prior notice to Subscriber (which may be sent by email). All amounts paid are non-refundable, including in the event that Subscriber chooses not to access or use the Numero Services it subscribed to. If Subscriber believes in good faith that an invoice amount is inaccurate, Subscriber must contact Numero’s client support department no later than 60 days after the closing date of the first billing statement in which the suspected error or issue appeared in order to receive an adjustment or credit.7. TERM AND TERMINATION
This Agreement will commence upon the Effective Date and continue until the last to expire Subscription Term, unless this Agreement is terminated earlier in accordance with the terms of this Agreement. Unless otherwise stated in the Service Order, the Initial Subscription Term will automatically renew for additional successive monthly periods (each, a “Renewal Term
”) until either party provides written notice of non-renewal before the end of the Initial Subscription Term or then-current Renewal Term.
7.2. Termination for Convenience.
Subscriber may terminate this Agreement for convenience, once Initial Subscription Term is complete, upon 30 days’ email notice to Numero at [email protected]
7.3. Termination for Material Breach.
Either party may terminate this Agreement if the other party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching party. Termination in accordance with this Section 7.3 will take effect when the breaching party receives written notice of termination from the non-breaching party, which notice must not be delivered until the breaching party has failed to cure its material breach during the 30-day cure period. If Subscriber fails to timely pay any fees, Numero may, without limitation to any of its other rights or remedies, suspend performance of the Numero Services, including Support until it receives all amounts due.
7.4. Post-Termination Obligations.
If Subscriber terminates this Agreement or any part thereof before the end of the then-current term, termination will take effect at the end of the then-current term. If this Agreement is terminated for any reason: (a)Subscriber will pay to Numero any fees, or other amounts that have accrued prior to the effective date of the termination;(b)any and all liabilities accrued prior to the effective date of the termination will survive; and (c)Subscriber will provide Numero with a written certification signed by an authorized Subscriber representative certifying that all use of the Numero Services (including via Mobile App) and Documentation by Subscriber has been discontinued. Notwithstanding the foregoing, for 30 days after the end of the term of this Agreement, Numero will permit Subscriber to access the Numero Services solely in order to retrieve Donor Data and Subscriber Data. Numero will not be responsible or liable for the storage of, making available, or deleting any of Subscriber’s information after that 30-day period. Subscriber may request deletion of any part or all of Donor Data and Subscriber Data in writing. However, Subscriber acknowledges and agrees that such deletion may impact Numero’s ability to fully restore Subscriber’s account, should Subscriber desires to reactivate its Numero account.
7.5. All Sections of this Agreement whichby their nature should survive termination or expiration shall survive,including Sections 2.12, 2.16, 3.2, 5, 6, 7.4, 7.5, 8.2, 9, 10, 11, and 12.8. WARRANTIES AND DISCLAIMER
8.1. Mutual Warranties.
Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 8, NUMERO MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED(EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. NUMERO EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. NUMERO DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF NUMERO SERVICES OR DIGITAL COLLECTIBLES. NUMERO DOES NOT WARRANT THAT THE NUMERO SERVICES OR DIGITAL COLLECTIBLES ARE ERROR-FREE, THAT THE INFORMATION PROVIDED IN CONNECTION WITH NUMERO SERVICES IS ACCURATE, OR THAT OPERATION OF THE NUMERO SERVICES WILL BE SECURE OR UNINTERRUPTED. NUMERO EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF SUBSCRIBER’S USE OF THE NUMERO SERVICES OR DIGITAL COLLECTIBLES.
9. NUMERO INDEMNIFICATION
Numero will indemnify Subscriber for damages, costs, and liabilities resulting from third party claims of infringement by the Numero Services of any United States patents or any copyright or misappropriation of any trade secret, provided Numero is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Numero shall not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Numero Services (i) not supplied by Numero; (ii) made or configured in whole or in part in accordance with Subscriber’s specifications; (iii) modified by Subscriber; (iv) combined with other products, processes, or materials (including the Donor Data, Subscriber Data, Licensed Content and Digital Collectibles) where the alleged infringement relates to such combination; (v) where Subscriber continues the allegedly infringing activity after being notified or being informed of modifications that would have avoided the alleged infringement; or (vi) where Subscriber’s use of the Numero Services is not strictly in accordance with this Agreement.
9.2. Exclusive Remedies.
If the Numero Services or any part of the Numero Services is held by a court of competent jurisdiction to be or are believed by Numero to be infringing, Numero may, at its option and expense (i) replace or modify the Numero Services or apart thereof to be non-infringing, provided that the modified or replaced the Numero Services retain substantially similar features and functionality; (ii) obtain for Subscriber a license to continue using the Numero Services; or (iii) if neither of the foregoing is commercially practicable, terminate this Agreement and Subscriber’s rights hereunder and provide Subscriber with a pro-rata refund of any pre-paid fees. This Section 9.2 states the exclusive remedies of Subscriber with respect to intellectual property infringement by the Numero Services.10. SUBSCRIBER INDEMNIFICATION
Subscriber will defend Numero from any actual or threatened third party claims arising out of or based upon Subscriber’s use of the Numero Services or Subscriber's breach of any of the provisions of this Agreement (including Subscriber’s covenant under Section 2.8 and Subscriber’s representations and warranties under Sections 2.9 and 2.10), Subscriber’s breach of any third party provider’s terms (including Stripe and MessageBird’sterms) or any allegation that the Licensed Content, Donor Data, Subscriber Data or Digital Collectibles infringe, misappropriate, or otherwise violate the rights of any third party or any applicable law. Numero will (a) give Subscriber prompt written notice of the claim; (b) grant Subscriber full and complete control over the defense and settlement of the claim; (c) provide assistance in connection with the defense and settlement of the claim as Subscriber may reasonably request; and (d) comply with any settlement or court order made in connection with the claim. Numero will not defend or settle any claim without Subscriber’s prior written consent. Numero will have the right to participate in the defense of the claim at its own expense and with counsel of its own choosing, but Subscriber will have sole control over the defense and settlement of the claim.
Subscriber will indemnify Numero from and pay (a) all damages, costs, and attorneys’ fees finally awarded against Numero in any claim under Section 9.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Numero in connection with the defense of a claim under Section 9.1 (other than attorneys’ fees and costs incurred without Subscriber’s consent after Subscriber has accepted defense of the claim); and, (c) all amounts that Subscriber agrees to pay to any third party to settle any claim under Section 9.1.
11. LIMITATIONS OF LIABILITY
11.1. Disclaimer of Indirect Damages.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT AND EXCEPT FOR BODILY INJURY OF A PERSON, NUMERO AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS, AND EMPLOYEES WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO SUBSCRIBER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS, OR LOSS OR INACCURACY OF DATA, EVEN IF NUMERO IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
11.2. Cap on Liability.
EXCEPT FOR BODILY INJURY OF A PERSON, UNDER NO CIRCUMSTANCES WILL NUMERO’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, STATUTE OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY SUBSCRIBER TO NUMERO FOR THE SERVICE FROM WHICH THE LIABILITY ARISE DURING THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.
11.3. Independent Allocations of Risk.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY NUMERO TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.12. GENERAL
Numero will be and act as an independent contractor (and not as the agent or representative of Subscriber) in the performance of this Agreement.
This Agreement is not assignable, transferable or sublicensable by Subscriber except with Numero’s prior written consent. Numero may transfer and assign any of its rights and obligations under this Agreement without consent.
Numero may utilize a subcontractor or other third party to perform its duties under this Agreement so long as Numero remains responsible for all of its obligations under this Agreement.
Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the Signature Page of this Agreement and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section 12.4. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
12.5. Force Majeure.
Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
12.6. Governing Law.
This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in San Francisco, California in connection with any action arising out of or in connection with this Agreement.
The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Numero Services under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Numero Services will immediately terminate.
This Agreement may be executed in any number of identical counterparts, notwithstanding that the parties have not signed the same counterpart, with the same effect as if the parties had signed the same document. All counterparts will be construed as and constitute the same agreement. This Agreement may also be executed and delivered by facsimile and such execution and delivery will have the same force and effect of an original document with original signatures.
12.10. Entire Agreement.
This Agreement, including all exhibits, is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the Numero Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any prior nondisclosure or comparable agreement between the parties executed prior to this Agreement being executed. No employee, agent, or other representative of Numero has any authority to bind Numero with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. Numero will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Numero specifically agrees to such provision in writing and signed by an authorized agent of Numero.