Legal Agreement
Reseller / White-Label Agreement
For partners reselling under their own brand
For partners reselling under their own brand
This Reseller / White-Label Agreement (this "Agreement") is dated (the "Effective Date") and entered into between 365Agents, Inc., a Nevada corporation, with offices at 18291 North Pima Road Suite 110, #273, Scottsdale, AZ 85255 ("365Agents"), and , a , with offices at the address set forth on the signature page ("Reseller" or "Customer" — Reseller is treated as 365Agents' direct customer for billing and SLA purposes).
In consideration of the foregoing recitals (which are incorporated into this Agreement) and for other good and valuable consideration, the parties agree:
Reseller shall pay 365Agents the Fees set forth in each Order. Fees are exclusive of all taxes, duties, telecommunications-related fees, and other governmental charges (other than taxes on 365Agents' net income).
365Agents will invoice Reseller monthly in arrears for actual usage in the prior month, plus any monthly recurring base, plus any one-time fees. Reseller shall pay all undisputed Fees within thirty (30) days after receipt of the applicable invoice. If Reseller disputes any Fees, Reseller must notify 365Agents within fifteen (15) days after receipt of the invoice; absent such notice, Fees are deemed accepted. All payments are non-refundable except as expressly provided. Payments are in U.S. dollars.
Past-due undisputed amounts accrue interest at the lesser of 1.5% per month or the maximum permitted by law, plus reasonable collection costs and attorneys' fees.
Subject to this Agreement, 365Agents shall provide the Services to Reseller and its Users.
Reseller shall supply the Customer Data, configuration, and personnel resources reasonably required for 365Agents to provide the Services.
365Agents shall provide direct Tier 1 support to Reseller and Reseller's representatives only (and not directly to any Buyer or end user). Reseller is responsible for providing first-line support to its Buyers; 365Agents will provide Tier 2 / Tier 3 support escalation through Reseller.
Any additional professional services and the associated Fees will be set forth in the applicable Order.
During the Subscription Term, 365Agents grants Reseller a non-exclusive, non-transferable (except as permitted by Section 13.4), non-sublicensable right to access and use the Services for Reseller's and its Affiliates' purposes — and to resell access to Buyers as set forth in Section 4.2 — solely to deploy AI voice and text agents and otherwise utilize the Platform's functionality, in the manner described in this Agreement and in the Documentation.
During the Subscription Term, Reseller may resell or allow Buyers to access and utilize the Services, provided that Reseller requires each Buyer to enter into a written contract that binds the Buyer to terms substantially equivalent to those in this Agreement, the ToS, and the SLA. Reseller is fully responsible for the acts and omissions of its Buyers and Users.
Reseller may permit its Affiliates' employees, independent contractors, Buyers, and Buyers' users to become Users authorized to access the Platform in accordance with this Agreement. Reseller is liable for any acts or omissions of Affiliates, Buyers, or Users that, if performed by Reseller, would constitute a breach of this Agreement.
365Agents may condition access to the Platform by each User or Buyer on agreement to a click-through end-user license, provided that no EULA modifies this Agreement or affects the rights or obligations of Reseller.
The Platform interoperates with third-party providers ("Providers"). 365Agents may add, remove, or modify Providers. Reseller acknowledges, and shall ensure that each Buyer and User acknowledges, that Customer Data is shared with applicable Providers, subject to each Provider's terms. 365Agents makes no warranty on behalf of any Provider.
Reseller shall not, and shall not permit any User or Buyer to: (a) reproduce, display, download, modify, create derivative works of, or distribute the Platform, or attempt to reverse engineer, decompile, disassemble, or access the source code; (b) permit any party other than authorized Users or Buyers to access the Platform; (c) use the Platform to infringe, misappropriate, or violate any IP or other right of any third party; or (d) introduce viruses, time bombs, or other harmful code.
Reseller, and Reseller shall require its Buyers and Users to: comply with applicable laws; comply with the TCPA, TSR, state telemarketing laws, AI-disclosure laws, "click to cancel" laws, two-party consent and wiretapping laws, and all other applicable telecommunications, advertising, debt-collection, biometric, employment, and consumer-protection laws; not use the Services to violate HIPAA or PCI DSS unless Reseller (or applicable Buyer) has executed a BAA with 365Agents (for HIPAA) and/or enabled the appropriate PCI-compliant settings (for PCI).
Reseller shall not, and shall take commercially reasonable efforts to ensure that Users do not, upload to the Platform any Social Security numbers, government-issued identifiers, full credit card or bank account numbers, protected health information (PHI) absent a BAA, or other categories of data subject to elevated regulatory protection that the Platform is not configured to handle ("Prohibited Data"). 365Agents may delete Prohibited Data upon discovery and has no liability for any failure to provide elevated protections to Prohibited Data.
As between the parties, Reseller (or each Buyer, where applicable) is the owner or controller of all right, title, and interest in Content, Customer Data, and User Data. Reseller grants 365Agents a limited, non-exclusive, non-transferable license to use the Content, Customer Data, and User Data solely to provide the Services and meet 365Agents' obligations under this Agreement.
365Agents will process personal data in accordance with the Privacy Policy and the 365Agents Data & InfoSec Policy posted at https://365agents.com/legal/infosec ("InfoSec Policy"), each of which is incorporated by reference. 365Agents may update the Privacy Policy and InfoSec Policy on notice but will not materially diminish the protections set forth in such policies as of the Effective Date during the then-current Subscription Term.
Retention periods are set forth in the InfoSec Policy. In summary: voice recordings are deleted within 30 days unless Reseller requests longer retention; voice models are retained until deletion is requested or the account is closed; usage logs are retained for 12 months; account and billing records may be retained for up to 7 years after account closure.
365Agents shall notify Reseller in accordance with the InfoSec Policy of any actual or reasonably suspected security incident involving the unauthorized use or disclosure of Customer Data or User Data, take reasonable steps to remedy the incident, and cooperate with Reseller to safeguard data and minimize impact.
This Agreement begins on the Effective Date and continues for one (1) year (the "Initial Term"), automatically renewing for successive one-year terms (each a "Renewal Term") unless either party gives at least sixty (60) days' written notice of non-renewal before the end of the then-current term. The Initial Term and any Renewal Term extend to cover the performance of any Order open at expiration.
A party may terminate this Agreement or an Order on written notice if the other party materially breaches and (if curable) does not cure within thirty (30) days of written notice (or fifteen (15) days for non-payment of undisputed amounts).
Reseller may terminate the affected Order without penalty if 365Agents fails to meet the uptime commitment in the SLA for three (3) consecutive months or any four (4) months in a rolling twelve-month period, by giving notice within thirty (30) days of the qualifying failure.
On termination: (a) amounts owed through termination are due and payable; (b) Reseller's rights cease; (c) Reseller shall discontinue access and return or erase Documentation in its possession; (d) 365Agents shall return or erase Customer Data on Reseller's written request made within thirty (30) days, except 365Agents may retain Customer Data in archived backups for legal or backup purposes; and (e) provisions that by their nature survive termination will survive.
365Agents may suspend Reseller's access to the Platform if (a) there is an attack on the Platform; (b) Reseller's or Users' use poses a reasonably probable risk of harm or liability and Reseller is not curing; (c) Reseller or Users have breached Sections 4.2 or 5; (d) use violates applicable law; or (e) Reseller has failed to pay undisputed amounts within fifteen (15) days after notice. Suspension does not relieve Reseller of payment obligations.
All proprietary technology used by 365Agents to perform under this Agreement, the Platform, and all components thereof, and all Intellectual Property Rights therein, are the exclusive property of 365Agents (or its licensors). 365Agents reserves all rights not expressly granted to Reseller.
"Confidential Information" means information disclosed by one party ("Discloser") to the other ("Recipient") under this Agreement that is marked confidential or that a reasonable person would understand to be confidential. 365Agents' Confidential Information includes the Software, Documentation, and pricing. Reseller's Confidential Information includes Customer Data.
Recipient shall not use Confidential Information for any purpose not permitted by this Agreement and shall not disclose Confidential Information to anyone other than employees, contractors, and advisors who have a need to know and who are bound by confidentiality obligations no less restrictive than those in this Section.
Confidentiality obligations do not apply to information that (a) was already known to Recipient prior to Discloser's disclosure; (b) is rightfully received from a third party without restriction; (c) is or becomes generally available to the public through no fault of Recipient; or (d) is independently developed without access to Discloser's Confidential Information.
Confidentiality obligations survive termination for three (3) years, except trade-secret obligations continue as long as the information remains a trade secret.
During the Term, 365Agents represents that the Platform will perform materially in accordance with the Documentation and that 365Agents will perform the Services in a competent, professional, and workmanlike manner. If Reseller notifies 365Agents of a reproducible Error within thirty (30) days, 365Agents shall, at its own expense and as Reseller's sole remedy, (a) use commercially reasonable efforts to correct or work around the Error, or (b) if 365Agents cannot correct or work around the Error within sixty (60) days of notice, refund pre-paid amounts for the affected portion.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING FROM COURSE OF DEALING OR PERFORMANCE.
365Agents shall defend any claim against Reseller brought by a third party to the extent based on an allegation that the Platform, used in accordance with this Agreement, infringes a U.S. registered patent, copyright, or trademark and shall indemnify and hold Reseller harmless from related Losses. 365Agents has no obligation for claims based on (i) use not in accordance with this Agreement; (ii) combination with non-365Agents products if the claim would have been avoided absent the combination; or (iii) modification by anyone other than 365Agents.
Reseller shall defend any claim against 365Agents brought by a third party to the extent based on (a) Reseller's (or any User's or Buyer's) violation of this Agreement, the ToS, or applicable law; (b) 365Agents' use of Customer Data, Content, or User Data in accordance with this Agreement; or (c) Reseller's submission of Prohibited Data, and shall indemnify and hold 365Agents harmless from related Losses.
Indemnification is conditioned on the indemnified party (a) promptly notifying the indemnifying party in writing; (b) giving the indemnifying party sole control of the defense and settlement (no settlement may impose obligations on the indemnified party without consent); and (c) reasonably cooperating at the indemnifying party's expense.
EXCEPT FOR EXCLUDED CLAIMS UNDER SECTION 12.3, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR FOR ANY LOST DATA, LOST PROFITS, OR COSTS OF SUBSTITUTE GOODS OR SERVICES, EVEN IF ADVISED OF THE POSSIBILITY.
EXCEPT FOR EXCLUDED CLAIMS UNDER SECTION 12.3, EACH PARTY'S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID OR PAYABLE BY RESELLER TO 365AGENTS UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
The exclusions and cap in Sections 12.1 and 12.2 do not apply to (a) Reseller's payment obligations; (b) breach of Section 9 (Confidentiality); (c) breach of Section 5 (Restrictions and Compliance); (d) the parties' indemnification obligations; (e) infringement, misappropriation, or violation of the other party's IP; or (f) gross negligence, willful misconduct, or fraud.
"Include," "includes," and "including" are not exhaustive and are deemed to be followed by "without limitation." "Or" is not exclusive. Both parties acknowledge that this Agreement will not be construed against either party as drafter.
The relationship is that of independent contractors. Neither party is a partner, employee, agent, or joint venture partner of the other.
365Agents may use subcontractors, sub-processors, and other third-party service providers and remains liable for their acts or omissions to the extent the same would constitute a breach if performed by 365Agents.
Neither party may assign this Agreement without the other's prior written consent, except either party may assign without consent to (a) an Affiliate, or (b) any successor by merger, acquisition, or sale of all or substantially all of its assets.
Except for payment obligations, neither party is liable for delay or failure to perform caused by events beyond its reasonable control.
Notices must be in writing and delivered by courier or certified or registered mail (postage prepaid, return receipt requested) to the address on the signature page (with email copy to legal@365agents.com for notices to 365Agents).
The laws of the State of Nevada govern this Agreement and any matters relating to it, without regard to conflicts-of-laws principles.
Except for actions seeking injunctive or equitable relief to protect Confidential Information or Intellectual Property, and except for collection of past-due, undisputed amounts, the parties will resolve any dispute by final and binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, conducted in Clark County, Nevada, before a single arbitrator. Judgment on the award may be entered in any court of competent jurisdiction. The parties waive any right to a class, collective, or representative action.
Each party acknowledges that any actual or threatened breach of Section 5 or Section 9 constitutes immediate, irreparable harm for which monetary damages are inadequate, and that injunctive relief is appropriate without bond. The prevailing party in any action to enforce this Agreement is entitled to its attorneys' fees, court or arbitration costs, and other legal expenses.
In the event of conflict, the order of precedence is: (1) the Order; (2) this Agreement; (3) the SLA; (4) the InfoSec Policy and Privacy Policy; (5) the ToS.
This Agreement, including all Orders and any exhibits or attachments, constitutes the entire agreement between the parties on the subject matter and supersedes all prior agreements. No terms proposed by Reseller (e.g., on a purchase order) are binding unless accepted in writing. Amendments must be in writing and signed by both parties. To be effective, waivers must be in writing and signed by the waiving party. If any provision is unenforceable, the remaining provisions remain in effect, and the unenforceable provision is to be modified to be enforceable to the maximum extent permitted. This Agreement may be executed in counterparts (including by electronic signature), each of which is an original.
The parties have executed this Reseller / White-Label Agreement as of the Effective Date.
