PLEASE READ THIS AFFILIATE PROGRAM AGREEMENT CAREFULLY. This is a contract between you (the “Affiliate”) and Invoke AI, Inc. ("Invoke" or "us").The Affiliate Program Agreement applies to your participation in our Affiliate Program (the “Affiliate Program”). Your agreement to these terms is required prior to your participation in the Affiliate Program.
We periodically update these terms. We might also choose to replace these terms in their entirety if, for example, the Affiliate Program changes, ends, or becomes part of a different program. If we update or replace the terms, we will notify you via electronic means or directly through the tools used to administer the Affiliate Program, which may include in-app notifications or email.
If you don’t agree to any term updates, you can choose to terminate as we describe below.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in these Terms or will be presented to you for your acceptance when you sign up to use the supplemental Service. If these Terms are inconsistent with the Supplemental Terms, the Supplemental Terms shall control to the extent of the conflict, solely with respect to such Service. These Terms and any applicable Supplemental Terms are referred to herein as the “Agreement.” PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY INVOKE IN ITS SOLE DISCRETION AT ANY TIME.
When changes are made, Invoke will make a new copy of these Terms Agreement available at the Site and any new Supplemental Terms will be made available from within, or through, the affected Service on the Site. We will also update the “Last Updated” date at the top of these Terms. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Site and/or the Services. Otherwise, your continued use of the Site and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE SITE TO VIEW THE THEN-CURRENT TERMS.
Definitions
“Affiliate Program” means the Invoke AI Affiliate Program as described in this Agreement.
“Affiliate Lead” means a customer prospect who clicks on the Affiliate Link that we have made available to you via the Affiliate Tool.
“Enterprise Referral” means a potential customer introduced by the Affiliate to Invoke AI, which requires manual sales engagement and contractual negotiation, and meets all criteria in the Enterprise Referral section of this Agreement.
“Affiliate Link” means the unique tracking link you place on your site or promote through other channels.
“Affiliate Policies” means the policies applicable to affiliates, which we may make available to you from time to time.
“Affiliate Tool” means the tool that we make available to you upon your acceptance into the Affiliate Program and for you to use in order to participate in the Affiliate Program.
“Agreement” means this Affiliate Program Agreement and all materials referred to or linked herein.
“Commission” means an amount described in the Affiliate Tool for each Customer Transaction.
“Enterprise Referral Commission” means the amount detailed in the Enterprise Referral section below.
“Customer” means an individual or entity who has purchased or signed up for Invoke AI products after being an Affiliate Lead.
“Customer Transactions” means those transactions by Affiliate Leads that are eligible for Commission pursuant to the ‘Customer Transactions’ section of this Agreement. Customer Transactions may include customer purchases or customer signups, as further described in the Affiliate Tool.
“Customer Data” means all information that a Customer submits or collects via Invoke AI products and all materials that Customer provides or posts, uploads, inputs, or submits for public display through Invoke AI products.
“Invoke Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into our services, with the exception of third-party models and licensed services.
“Invoke Products” means Invoke AI's web-based products, services, or tools that are subscribed to, and is developed, operated, and maintained by us, accessible via
https://invoke.com.
“Program Policies Page” means the landing page within the Affiliate Tool where we will provide all the up-to-date details and policies for the Affiliate Program.
"We," "us," "our," and “Invoke” means Invoke AI, Inc.
“You” and “Affiliate” means the party, other than Invoke, entering into this Agreement and participating in the Affiliate Program.
By entering into this Agreement or using the Services, you agree to receive communications from us, including via e-mail. Communications from us and our affiliated companies may include but are not limited to operational communications concerning your Account or the use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning Invoke and industry developments. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.
Participation Requirements
The Affiliate represents and warrants that they meet the following requirements for participation in the Affiliate Program:
- Legal Capacity: The Affiliate is at least 18 years of age and has the legal capacity to enter into this Agreement.
- Rights and Consents: The Affiliate has obtained all necessary rights, licenses, and consents to operate as an affiliate under this Agreement.
- Scope of Operation: The Affiliate is operating within the scope as defined in the Affiliate Policies or other written agreements with Invoke AI.
- Compliance with Laws: The Affiliate will comply with all applicable laws and regulations, including those related to data privacy, anti-corruption, and consumer protection.
Invoke AI reserves the right to accept or reject Affiliate applications at its sole discretion.You must provide all equipment and software necessary to connect to Services, including but not limited to, a mobile device that is suitable to connect with and use Services, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Services.
Non-Exclusivity
This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation, and use of similar services and products of third parties.
Affiliate Acceptance
Once you complete an application to become an Affiliate or are contacted to engage as an Affiliate, we will confirm whether you have been accepted to participate in the Affiliate Program or not. Before we accept an application, we may want to review your application with you, so we may reach out to you for more information.
We may require that you complete certain requirements or certifications before we accept your application. If we do not notify you that you are accepted to participate in the Affiliate Program within thirty (30) days from your application, your application is considered to be rejected. If you are accepted to participate in the Affiliate Program, then upon notification of acceptance and creation of your Affiliate account in the Affiliate Tool, the terms and conditions of this Agreement shall apply in full force and effect until terminated pursuant to the terms set forth below.
You will comply with the terms and conditions of this Agreement at all times, including any applicable Program Policies.
Customer Transactions
Affiliate Program Limits: Each accepted Affiliate Lead will expire according to the information provided in the Affiliate Tool (or, if applicable, in the Program Policies) from the date the Affiliate Lead clicked on the Affiliate Link that was made available by you.
We will pay you Commission as described in the Affiliate Tool (or, if applicable, in the Program Policies) for each new Customer who completes an applicable Customer Transaction after clicking on an Affiliate Link made available by you, provided that you remain eligible to receive Commission pursuant to the terms of this Agreement. The start of the Customer’s subscription is determined by the date of the first purchase or signup (as applicable) of the Invoke Products by the Customer, and you will receive a Commission payment for that Customer Transaction only, regardless of any additional purchases made by that customer during their subscription. For example, if the initial Customer Transaction is for one user of Invoke Premier, and there is a subsequent purchase by that same customer for additional user seats, compute hours, or add-on licenses, the Affiliate will receive Commission for the initial user purchase only.
The Affiliate will not be entitled to receive Commission on any additional purchases of Invoke Products by that same Customer. The Affiliate is not entitled to receive Commission on the purchase of any third-party services, fees, models, or content outside of the Invoke Products.
Eligibility: To be eligible for Commission:
(i) An Affiliate Lead must be accepted and valid in accordance with the ‘Acceptance and Validity’ section.
(ii) A Customer Transaction must have occurred.
(iii) A Customer must remain a customer during the locking period in the Affiliate Tool (or, if applicable, in the Program Policies).
You are not eligible to receive Commission or any other compensation from us based on transactions for Other Products or if:
(a) Such compensation is disallowed or limited by federal, state, or local law or regulation in the United States or the laws or regulations of your jurisdiction.
(b) The applicable Customer objects to or prohibits such compensation or excludes such compensation from its payments to us or to the participant in the Affiliate Program.
(c) The Customer has paid or will pay such commissions, referral fees, or other compensation directly to you.
(d) The Commission payment has been obtained by fraudulent means, misuse of the Affiliate Link, in violation of any Affiliate Program Policies that we make available to you, misuse of the Affiliate Tool, or by any other means that we deem to breach the spirit of the Affiliate Program.
(e) The Customer participates in our Affiliate Program.In competitive situations with other affiliates, we may elect to provide the Commission to the affiliate that we deem to be the most eligible for Commission, at our discretion. We may discontinue Commission payments should any of the eligibility criteria set forth in this subsection fail to be met at any time.
Acceptance and Validity: You will only be eligible for a Commission payment for any Customer Transactions that derived from Affiliate Leads generated by the Affiliate Link that we make available to you and are accepted by Invoke. An Affiliate Lead will be considered valid and accepted if, in our reasonable determination:
(i) It is a new potential customer of ours, and
(ii) Is not, at the time of submission or sixty (60) days prior, one of our pre-existing customers or involved in our active sales process.
Notwithstanding the foregoing, we may choose not to accept an Affiliate Lead at our reasonable discretion. If an Affiliate Lead does not purchase the Invoke Products within the time period described in the Affiliate Tool (or, if applicable, in the Program Policies) of their first click on the Affiliate Link, you will not be eligible for a Commission payment, even if the Affiliate Lead decides to purchase after the time period has expired. An Affiliate Lead is not considered valid if its first click on the Affiliate Link is after this Agreement has expired or terminated.
Engagement with Prospects: Once we have received the Affiliate Lead information, we may elect to engage with the prospect directly, regardless of whether or not the Affiliate Lead is valid. If an Affiliate Lead is not valid for this program, then we may choose to maintain it in our database and we may choose to engage with such Affiliate Lead. Any engagement between Invoke and an Affiliate Lead will be at Invoke’s discretion.
Unless expressly agreed to by Invoke in writing elsewhere, Invoke has no obligation to store any of Your Content that you Make Available on Services. Invoke has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services.
Commission and Payment
In order to receive payment under this Agreement, you must have:
(i) Agreed to the terms of this Agreement (by registering through the Affiliate Tool).
(ii) Completed all steps necessary to create your account in the Affiliate Tool in accordance with our directions.
(iii) Have a valid and up-to-date payment method in the Affiliate Tool with such account.
(iv) Completed any and all required tax documentation in order for the Affiliate Tool to process any payments that may be owed to you.
Requirements for Payment; Forfeiture: Notwithstanding the foregoing or anything to the contrary in this Agreement, if any of the requirements set forth in items (i) to (iv) above remain outstanding for six (6) months immediately following the close of a Customer Transaction, then your right to receive Commission arising from any and all Customer Transactions with the associated Customer will be forever forfeited (each, a “Forfeited Transaction”). We will have no obligation to pay you Commission associated with a Forfeited Transaction. Once you comply with all of the requirements in items (i) to (iv) above, then you will be eligible to receive Commission on Customer Transactions, as long as these Customer Transactions do not involve the same Customer associated with a Forfeited Transaction.
Commission Payment: We or the Affiliate Tool will determine the currency in which we pay the Commission, as well as the applicable conversion rate. We will not pay more than one Commission payment or other similar referral fee on any given Customer Transaction (unless we choose to at our discretion).
Taxes: You are responsible for payment of all taxes and fees (including bank fees) applicable to the Commission. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.
Commission Amounts: We reserve the right to alter or change the Commission amount as per the Affiliate Tool.
Enterprise Referral Program
Eligibility to Submit Referrals: To submit an Enterprise Referral, you must:
- Accepted Affiliate: Be an accepted and currently valid Affiliate participant in the Affiliate Program.
- Designated Process: Submit the referral through the designated process specified by Invoke AI, through email to a member of the Affiliate Program team.
Invoke AI will make reasonable efforts to respond to all submitted Enterprise Referrals within ten (10) business days of submission.
Validation Criteria for Enterprise Referrals: An Enterprise Referral will only be validated and deemed eligible for Enterprise Referral Commission if it meets the following criteria:
a. New Opportunity: The referral must represent a new lead that is not:
- Currently recorded in Invoke AI’s sales pipeline.
- Already under active consideration by Invoke AI’s sales team.
- An existing customer, including subsidiaries or affiliates of current customers.
b. Customer Engagement: The referral must result in:
- A signed Master Services Agreement (MSA) between the referred customer and Invoke AI.
- Full payment of all invoices related to the purchase of Invoke Products.
c. Timeliness: The referral must:
- Result in a signed contract for Invoke Enterprise within 180 days of the initial submission date.
Referrals not closed within this timeframe will automatically expire unless otherwise agreed to in writing by Invoke AI.
d. Compliance: The referral must comply with:
- All terms and conditions of this Agreement
- Applicable Affiliate Policies, including adherence to laws, ethical conduct, and accurate representation of information.
Enterprise Referral Commission Eligibility and Structure
a. Eligibility for Enterprise Referral Commission: The Affiliate will be eligible to receive an Enterprise Referral Commission for a validated Enterprise Referral if:
- The referral results in a signed contract between the referred customer and Invoke AI.
- The referred customer fulfills the financial obligations under the signed contract, including full payment or deposit as applicable.
b. Enterprise Referral Commission Rate and Scope: The Enterprise Referral Commission for each validated Enterprise Referral is 10% of the total first-year contract value for all Invoke Products. The Enterprise Referral Commission will be calculated based solely on the initial annual contract value and will exclude:
- Any subsequent expansions, renewals, or additional purchases by the referred customer.
- Fees paid for services, licenses, or products outside of Invoke Products, including but not limited to model licenses, integration fees, or professional services.
Expiration of Referrals: Enterprise Referrals that fail to meet the criteria for validation or do not result in a signed contract within the specified timeframe will be considered expired.
Upon expiration:
- The Affiliate will no longer be eligible for Enterprise Referral Commission related to the expired referral.
- Invoke AI may retain the referral information for future sales efforts without any obligation to the Affiliate.
Enterprise Referral Commission Payment Terms
a. Payment Schedule
Invoke AI will process Enterprise Referral Commission payments within thirty (30) days of receiving the customer’s full payment under the signed contract.Payment will be made via the method specified by the Affiliate during program registration (e.g., direct deposit, wire transfer).
b. Payment Requirements
The Affiliate must:
- Maintain a valid payment account.
- Complete all required tax documentation before payment can be issued.
c. Taxes and Fees
The Affiliate is responsible for all applicable taxes, fees, and charges associated with receiving Enterprise Referral Commission payments.Invoke AI will not withhold taxes unless required by law.
d. Dispute Resolution
Any disputes regarding Enterprise Referral Commission calculations, eligibility, or payment must be raised in writing within thirty (30) days of the payment or notification of Enterprise Referral Commission eligibility.
Failure to raise a dispute within this timeframe constitutes acceptance of the payment or decision.
Forfeiture of Enterprise Referral Commission: The Affiliate will forfeit any rights to Enterprise Referral Commission under the following circumstances:
- The Affiliate violates any terms of this Agreement or the Affiliate Policies.
- The Affiliate provides fraudulent, incomplete, or inaccurate referral information.
- The referred customer cancels their contract or fails to fulfill their payment obligations.
Training and Support
We may make available to you, without charge, various webinars and other resources as part of our Affiliate Program. We may change or discontinue any or all parts of the Affiliate Program benefits or offerings at any time without notice.
Trademarks
You grant to us a non-exclusive, non-transferable, royalty-free right to use and display your trademarks, service marks, and logos (“Affiliate Marks”) in connection with the Affiliate Program and this Agreement.
During the term of this Agreement, in the event that we make our trademark available to you within the Affiliate Tool, you may use our trademark as long as you follow the usage requirements in this section. You must:
(i) Only use the images of our trademark that we make available to you, without altering them in any way.
(ii) Only use our trademarks in connection with the Affiliate Program and this Agreement.(iii) Comply with our brand guidelines and these Trademark Usage Guidelines.
(iv) Immediately comply if we request that you discontinue use.
You must not:
(i) Use our trademark in a misleading or disparaging way.
(ii) Use our trademark in a way that implies we endorse, sponsor, or approve of your services or products.
(iii) Use our trademark in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.
Proprietary Rights
Invoke’s Proprietary Rights: No license to any software is granted by this Agreement. The Invoke Products are protected by intellectual property laws. The Invoke Products belong to and are the property of us or our licensors (if any). We retain all ownership rights in the Invoke Products. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Invoke Content or the Invoke Products in whole or in part, by any means, except as expressly authorized in writing by us. If you wish to use Invoke Content, you must comply with our Content Usage Guidelines.Invoke, the Invoke “I Key” design, the Invoke logos, and other marks that we use from time to time are our trademarks, and you may not use them without our prior written permission, except as otherwise set forth in this Agreement.
We encourage all customers, affiliates, and partners to comment on the Invoke Products, provide suggestions for improving them, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Invoke Products without payment to you.
Customer’s Proprietary Rights: As between you and Customer, Customer retains the right to access and use the Customer portal associated with their purchase of Invoke Products. For the avoidance of doubt, Customer will own and retain all rights to Customer Data.
Confidentiality
As used herein, “Confidential Information” means all confidential information disclosed by a party ("Disclosing Party") to the other party (“Receiving Party”):
(i) Whether orally or in writing, that is designated as confidential.
(ii) Invoke customer and prospect information, whether or not otherwise designated as confidential.
Confidential Information does not include any information that:
(a) Is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party.
(b) Was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party.
The Receiving Party shall:
(i) Protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care.
(ii) Not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement.
(iii) Not disclose Confidential Information of the Disclosing Party to any third party.
(iv) Limit access to Confidential Information of the Disclosing Party to its employees, contractors, and agents.
The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena, or legal process.
Opt Out and Unsubscribing
You will comply promptly with all opt-out, unsubscribe, "do not call," and "do not send" requests. For the duration of this Agreement, you will establish and maintain systems and procedures appropriate to effectuate all opt-out, unsubscribe, "do not call," and "do not send" requests.
Term and Termination
Term: This Agreement will apply for as long as you participate in the Affiliate Program, until terminated.
Termination Without Cause: Both you and we may terminate this Agreement on fifteen (15) days' written notice to the other party.
Termination for Agreement Changes: If we update or replace the terms of this Agreement, you may terminate this Agreement on five (5) days' written notice to us, provided that you send us written notice within ten (10) days after we send you notice of the change.
Termination for Cause: We may terminate this Agreement:
(i) Upon thirty (30) days' notice to you of a material breach if such breach remains uncured at the expiration of such period.
(ii) Upon fifteen (15) days' notice to you of non-payment of any amount due to us if such amount remains unpaid at the expiration of such period.
(iii) Immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.
(iv) Immediately, if you breach the terms applicable to your subscription with us (if you have one), including if you default on your payment obligations to us or our affiliate.
(v) Immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
Effects of Expiration/Termination: Expiration of this Agreement, and termination of this Agreement:
(i) Without cause by us.
(ii) By you with cause.
(iii) By you according to the ‘Termination for Agreement Changes’ section.Shall not affect our obligation to pay you a Commission, so long as the related payment by the Customer Transaction is recognized by us within thirty (30) days after the date of such termination or expiration. We will not pay you fees on Customer Transactions recognized by us after thirty (30) days after the date of such termination or expiration set out above. Provided, however, in the event of termination without cause by you, or for cause by us, our obligation to pay and your right to receive any Commission will terminate upon the date of such termination, regardless of whether you would have otherwise been eligible to receive Commission prior to the date of termination.
Except as expressly set forth in this section, you are not eligible to receive a Commission payment after expiration or termination of this Agreement. Upon termination or expiration, you will discontinue all use of the Affiliate Tool that we make available to you for your participation in the Affiliate Program. Upon termination or expiration, an Affiliate Lead is not considered valid, and we may choose to maintain it in our database and engage with such a prospect.
Upon termination or expiration, you will immediately discontinue all use of our trademark and references to this Affiliate Program from your website(s) and other collateral. For the avoidance of doubt, termination or expiration of this Agreement shall not cause a Customer’s subscription agreement to be terminated.
Affiliate Representations and Warranties
You represent and warrant that:
(i) You have all sufficient rights and permissions to participate in the Affiliate Program and to provide Invoke with Affiliate Leads for our use in sales and marketing efforts or as otherwise set forth in this Agreement.
(ii) Your participation in this Affiliate Program will not conflict with any of your existing agreements or arrangements.
(iii) You own or have sufficient rights to use and to grant to us our right to use the Affiliate Marks.
You further represent and warrant that:
(i) You will ensure that you are compliant with any trade or regulatory requirements that may apply to your participation in the Affiliate Program (for example, by clearly stating you are part of the Affiliate Program on any website(s) you own where you make an Affiliate Link available).
(ii) You will accurately provide in the Affiliate Tool all websites and domains you own where you intend to use Affiliate Links to generate Affiliate Leads.
(iii) You will not purchase ads that direct to your site(s) or through an Affiliate Link that could be considered as competing with Invoke’s own advertising, including, but not limited to, our branded keywords.
(iv) You will not participate in cookie stuffing or pop-ups; false or misleading links are strictly prohibited.
(v) You will not attempt to mask the referring URL information.
(vi) You will not use your own Affiliate Link to purchase Invoke products for yourself.
(vii) You will not use any mechanisms to deliver leads other than through an intended consumer. This includes sourcing leads through compilations of personal data such as phonebooks, using fake redirects or other tools or automation devices to generate leads (including but not limited to robots, iframes, or hidden frames), or offering incentives to encourage purchases or signups.
Indemnification
You will indemnify, defend, and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of:
(a) Your participation in the Affiliate Program.
(b) Our use of the prospect data you provided us.
(c) Your noncompliance with or breach of this Agreement.
(d) Your use of the Affiliate Tool.
(e) Our use of the Affiliate Marks.
We will:
(i) Notify you in writing within thirty (30) days of our becoming aware of any such claim.
(ii) Give you sole control of the defense or settlement of such a claim.
(iii) Provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim.
You shall not accept any settlement that:
(i) Imposes an obligation on us.
(ii) Requires us to make an admission.
(iii) Imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
Disclaimers; Limitations of Liability
Disclaimer of Warranties: WE AND OUR AFFILIATED COMPANIES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, OR ACCURACY OF THE INVOKE PRODUCTS, INVOKE CONTENT, THE AFFILIATE PROGRAM, OR THE AFFILIATE TOOL FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) AND THE AFFILIATE TOOL MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE INVOKE PRODUCTS AND AFFILIATE TOOL ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE INVOKE PRODUCTS AND THE AFFILIATE TOOL, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
No Indirect Damages: TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
Limitation of Liability: IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL COMMISSION AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED CUSTOMER TRANSACTIONS IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
Affiliate Tool: WE DISCLAIM ALL LIABILITY WITH RESPECT TO THE AFFILIATE TOOL THAT YOU USE. WE DO NOT PROMISE TO MAKE THE AFFILIATE TOOL AVAILABLE TO YOU, AND WE MAY CHOOSE TO DO SO, OR NOT TO DO SO, IN OUR DISCRETION.
Cookie Duration: COOKIES USED AS PART OF THE AFFILIATE TOOL HAVE A SET DURATION. IF A POTENTIAL CUSTOMER CLEARS THEIR COOKIES DURING THIS PERIOD, INVOKE SHALL NOT BE LIABLE FOR ANY COMMISSIONS THAT MAY HAVE BEEN OWED TO YOU.
Data Processing and Protection
The parties acknowledge that in connection with the Affiliate Program, each party shall process the copy of the Personal Data in its possession or control:
(i) As an independent controller (not as a joint controller with the other party).
(ii) For the purposes described in this Agreement.
(iii) As may otherwise be permitted under Applicable Data Protection Law.
For the avoidance of doubt and without prejudice to the foregoing, Invoke shall be an independent controller of any Personal Data that it receives or shares with Affiliate.
GeneralAmendment; No Waiver:
We may update and change any part or all of this Agreement, including by replacing it in its entirety. If we update or change this Agreement, the updated Agreement will be made available to you via the Affiliate Tool and/or by email. The updated Agreement will become effective and binding on the next business day after we or the Affiliate Tool have notified you. When we change this Agreement, the "Last Modified" date above will be updated to reflect the date of the most recent version at https://invoke.com/affiliate-program. We encourage you to review this Agreement periodically. If you don’t agree to the update, change, or replacement, you can choose to terminate as we describe above. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
Applicable Law: THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT.
Force Majeure: Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; an act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other events outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
Actions Permitted: Except for actions for non-payment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
Relationship of the Parties: Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.
Compliance with Applicable Laws: You shall comply, and shall ensure that any third parties performing sales or referral activities on your behalf comply, with all applicable foreign and domestic laws (including without limitation export laws and laws applicable to the sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal, or unethical marketing activities or activities that otherwise may be detrimental to us, our customers, or to the public. Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the Invoke Products. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Invoke Products to prohibited countries or individuals or permit use of the Invoke Products by prohibited countries or individuals.
Severability: If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remainder of this Agreement will continue in effect.
Notices: Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party) and will be deemed delivered as of the date of actual receipt.
To Invoke AI, Inc.:
Invoke AI, Inc.
99 Wall Street #5978
New York, NY 10005
To you:
Your email address as provided in our affiliate account information for you.We may give electronic notices specific to you by email to your email address(es) on record in our account information for you. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you.
Entire Agreement: This Agreement is the entire agreement between us for the Affiliate Program and supersedes all other proposals and agreements, whether electronic, oral, or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance, or website. Our obligations are not contingent on the delivery of any future functionality or features of the Invoke Products or dependent on any oral or written public comments made by us regarding future functionality or features of the Invoke Products. It is the express wish of both you and us that this Agreement and all related documents be drawn up in English. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship, and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
Assignment: You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control, or operation of law, without our prior written consent. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control, or operation of law.
No Third-Party Beneficiaries: Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
Program Policies Page: We may change the Program Policies from time to time. Your participation in the Affiliate Program is subject to the Program Policies, which are incorporated herein by reference.
No Licenses: We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to us, the Invoke Products, our trademarks, or any other property or right of ours.
Sales by Invoke: This Agreement shall in no way limit our right to sell the Invoke Products, directly or indirectly, to any current or prospective customers.
Authority: Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
Survival: The following sections shall survive the expiration or termination of this Agreement: ‘Commission and Payment’, ‘Enterprise Referral Commission Payment Terms’, ‘Proprietary Rights’, ‘Confidentiality’, ‘Effects of Expiration/Termination’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Arbitration Agreement’, ‘Data Processing and Protection’ and ‘General’.
ARBITRATION AGREEMENT. Please read this section (the “Arbitration Agreement”) carefully. It is part of your contract with Invoke and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Invoke agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement and prior versions of this Agreement, including claims and disputes that arose between you and us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (i) you and Invoke may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or Invoke may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.
Informal Dispute Resolution. There might be instances when a Dispute arises between you and Invoke. If that occurs, Invoke is committed to working with you to reach a reasonable resolution. You and Invoke agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome (“Informal Dispute Resolution”). You and Invoke therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via video conference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Invoke that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to legal@invoke.ai or regular mail to our offices located at Invoke, Inc., 99 Wall Street #5978 New York, NY 10005. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
Waiver of Jury Trial. YOU AND INVOKE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Invoke are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 'Applicability of Arbitration Agreement'. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class and Other Non-Individualized Relief. YOU AND INVOKE AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 'BATCH ARBITRATION', EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 'Batch Arbitration'. Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this Section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Invoke agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of Delaware. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or Invoke from participating in a class-wide settlement of claims.
Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Invoke agree that either party shall have the right to finally resolve the Dispute through binding arbitration. The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf. A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration. If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery. Unless you and Invoke otherwise agree, or the Batch Arbitration process discussed in Section 'Batch Arbitration' is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely as set forth in the applicable AAA Rules. You and Invoke agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and then subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of Delaware and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 'Batch Arbitration' is triggered, the AAA will appoint the arbitrator for each batch.
Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 'Waiver of Class and Other Non-Individualized Relief', including any claim that all or part of Section 'Waiver of Class and Other Non-Individualized Relief' is unenforceable, illegal, void or voidable, or that such Section 16.4 (Waiver of Class and Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 'Batch Arbitration', all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 'Batch Arbitration'. The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Invoke need to Invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Invoke agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against Invoke by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Invoke. You and Invoke agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: legal@invoke.ai. within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
Invalidity, Expiration. Except as provided in Section 'Waiver of Class or Other Non-Individualized Relief', if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Invoke as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Invoke makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Invoke at legal@invoke.ai, your continued use of the Affiliate Program, including participation through new Leads or Referrals constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Invoke will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
