This Bundled Local Services Agreement (“Agreement”) is entered into as of MONTH DAY, YEAR by and between XXXX (“Buyer”) and its affiliates, and Primary Wave Local, LLC (“Seller”) with reference to the following facts:
WHEREAS, Seller, or its agent, possesses rights and interest in and also is the “Customer of Record” as it relates to the use of the telephone number (000) 000-0000 (“Number”) (collectively, the “Rights”).
WHEREAS, Seller, or its agent, shall provide the following services and preferred offers to Buyer, which services are integral to this Agreement and included in the fees due from Buyer to Seller, which services shall collectively be referred to as “Bundled Services”:
- Number consultation (such as assisting in selection of a telephone number that may help Buyer increase contacts and customer base), and if necessary procurement of selected number from third parties, including any expenses, costs or fees, such as research fees, associated with such procurement;
- Thirty (30) minutes of marketing and/or consulting services to be used at Buyers option.
- Initially maintaining the Number in Seller’s account with Seller’s telecommunications carrier, until the Number is transferred to Buyer’s own account with a telecommunications carrier in accordance with Section 7 of this Agreement or
- 90 days of Phone.com telecommunication Base Plan services as described in the following link: (http://www.phone.com/af/ringboost/?_tracking_id=10104) included for the Number with white glove account setup, to be used at Buyers option at time of purchase.
- Porting (in or out of Number) and, if applicable, call-forwarding of the Number in accordance with the terms of the Agreement;
WHEREAS, Buyer is desirous of acquiring all rights, and interest in and to “Customer of Record” status for the Number and related Bundled Services, including but not limited to the Rights.
NOW, THEREFORE, for and in consideration of the mutual promises, covenants and valuable consideration as set forth herein, Seller and Buyer, intending to be irrevocably bound, hereby agree as follows:
- Seller hereby assigns and transfers to Buyer, all rights and interest to its Customer of Record status for the Number and any and all services or assets directly related to the Number and listed in the Agreement (including the Bundled Services) or accompanying Addendum, where applicable. In consideration of the foregoing, Buyer hereby agrees to pay Seller the sum of XXXXX Dollars ($00,000.00) (“Funds”) on or before xx/xx/2015, Buyer understands and agrees that the pricing for the Funds includes the time, cost and reasonable effort in securing the Number or other services or assets accompanying the Number as described herein
- Buyer agrees to indemnify and hold harmless Seller, its directors, officers, managers, members, employees, agents, contractors, and representatives from any and all damages, losses, expenses (including attorneys’ fees), costs, claims and suits arising out of or relating to Buyer’s operation, use or transfer of the Number to Buyer or otherwise arising out of this Agreement, upon execution of this Agreement by Buyer.
- In no event shall Seller’s liability to Buyer or its affiliates regardless of cause or form of action, exceed the value of the Funds. In no event shall Seller be liable to Buyer, ITS AFFILIATES or any other THIRD PARTY, in any respect, without limitation, for indirect, consequential, special, incidental, actual, or punitive damages, or any lost profits of any kind.
- Buyer warrants, represents and agrees that its use of the Number and Bundled Services is for purposes determined and directed by Buyer, and that Seller has not provided any formal or informal operational, legal or other advice, guidance, or information regarding the use of the Number, nor has Buyer relied on any such informal or formal advice, guidance or information from Seller Buyer understands that Seller is not a telecommunications carrier and that Buyer must choose a telecommunications carrier to provide underlying telecommunications services for the Number upon execution of this Agreement Buyer expressly releases Seller from any claims, damages, losses or other liabilities following Seller’s transfer of the Number to Buyer, and Buyer agrees that Seller shall not be liable to Buyer, any affiliate or any third party in any forum, whether judicial, administrative, regulatory or otherwise, for any claims or issues resulting from Buyer’s telecommunications carrier of choice being able to port or provide service for the Number for any reason, including but not limited to such carrier’s limited service area, lack of rate center support or other reason; provided that Seller will cooperate with Buyer to port the Number to an alternate carrier selected by Buyer.
- Buyer understands and acknowledges that third parties may have intellectual property rights in the word or words that correspond with the Number. Accordingly, Buyer shall use the Number at its own risk, and shall indemnify and hold Seller harmless against any expenses, losses, costs, or damages arising out of any and all claims by third parties that the Number infringes upon such third party’s intellectual property rights.
- TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLER IS PROVIDING THE NUMBER “AS IS” WITHOUT WARRANTIES, CONDITIONS, REPRESENTATIONS OR GUARANTIES OF ANY KIND, EITHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. SELLER DOES NOT WARRANT THAT OPERATION OF THE NUMBER WILL BE UNINTERRUPTED OR ERROR FREE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
- Upon confirmation of receipt of final payment of the Funds, Seller will begin the process to deliver the Number to the carrier designated by Buyer or the parties will mutually agree upon another means of delivery (“Set-Up”) to be completed within ninety (90) days from receipt of final payment of the Funds (“90 Day Period”), with both parties’ mutual good faith efforts to effect delivery. The Bundled Services, as set forth in this Agreement, include 90 days of Phone.com telecommunications Base Plan service. Standard Base Plan Terms and Conditions apply. Immediately upon Seller beginning the process to deliver the Number as described herein, Buyer shall not, under any circumstances, initiate a chargeback for any Funds paid to Seller. In the event Buyer initiates a chargeback, Buyer shall (i) within one (1) business day give notice thereof to Seller, (ii) at Buyer’s cost and expense, deliver the Number to Seller, and (iii) pay Seller a sum of three times (3x) the amount specified as Funds in the Agreement, as liquidated damages. The parties agree that quantifying losses arising from Buyer’s chargeback is inherently difficult and further stipulate that the agreed upon sum of this section 7(iii) is not a penalty, but rather a reasonable measure of damages, based upon Seller’s experience in the industry and given the nature of the losses that may result from a chargeback as well as any legal fees that may have been incurred.
- Upon Buyer’s request, Seller will activate call forwarding of the Number to a destination provided by Buyer. Call Forwarding shall remain in effect until either (i) the completion of Set-Up or (ii) the completion of the 90 Day Period, whichever occurs first. Buyer shall pay all carrier charges during Set-Up, including those of usage; provided that if Buyer takes the 90-day phone.com trial service, then Buyer’s telecommunications services for the first 30 days shall be as specified for any services outside the trial offer (as set forth in Addendum B). If Set-Up has not been completed upon expiration of the 90 Day Period due to (i) inaction or (ii) lack of effort by Buyer, then Seller shall, in its sole discretion, provide reasonable notice to Buyer that call forwarding shall cease. At such time, Seller will no longer be obligated to deliver the Number to Buyer and all rights associated with the Number shall revert back to Seller including but not limited to, the right to sell, license or allow use of the Number to a third party or for Seller’s own use. Buyer shall not be entitled to a refund of any monies paid. Buyer agrees that if it has not finalized the Set-Up within the 90 Day Period, Seller shall not be liable to Buyer for any damages, losses or claims associated with the Number or this Agreement and incurred by Buyer or any third party. Buyer further agrees to indemnify and defend Seller for any damages, losses or claims incurred by or asserted against Seller and associated with the Number or this Agreement.
- In the event of any controversy arising under or relating to the interpretation or implementation of this Agreement or any breach thereof, the prevailing party shall be entitled to payment for all costs and attorneys’ fees (both trial and appellate) incurred in connection therewith. If any provision contained in this Agreement shall be invalid, illegal or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining provisions contained herein or therein shall not in any way be affected or impaired.
- This Agreement is subject to the laws of the State of New York, without regard to its conflict of laws principles. Venue for any action shall be in New York County, New York. This Agreement is binding upon the parties hereto and their successors and assigns. This Agreement may only be amended in writing signed by both parties. Each party hereby confirms that it has full power and authority to enter into and perform this Agreement and that the person signing on its behalf has been properly authorized to enter into this Agreement. This Agreement may be executed in counterparts. Time is of the essence. In the event any of the provisions or terms of the Agreement are deemed to be invalid or unenforceable, the same shall be deemed severable from the remainder of this Agreement and shall not cause the invalidity or unenforceability of the remainder of this Agreement.
- Each party hereto agrees to execute and deliver such additional documents and instruments, and to perform such additional acts as may be reasonably necessary or appropriate to effectuate the intent, purpose and provisions of the Agreement.
- The Agreement constitutes the entire understanding of the parties hereto relating to the subject matter hereof and, except as otherwise provided herein, cannot be changed except by an instrument signed by both parties hereto. No waiver by any of the parties hereto of any provision of or any default under the Agreement shall constitute a waiver by the particular party of compliance thereafter with the same or any other provision or of such party’s respective right to enforce the same or any other provision thereafter.
- Notwithstanding any provision contained in this Agreement, neither party shall be liable to the other to the extent fulfillment or performance of any terms or provisions of this Agreement are delayed or prevented by revolution or other civil disorders; wars; strikes; labor disputes; fires; floods; nuclear incident; acts of God; terrorism; government action; or, without limiting the foregoing, any other causes not within its control and which, by the exercise of reasonable diligence, it is unable to prevent. This clause shall not apply to the payment of any sums due under this Agreement by either party to the other.
- Seller shall have the right to assign this Agreement. Buyer shall not have the right to assign, sublet or sublicense the Agreement or any of its Bundled Services, rights or interests hereunder without Seller’s prior written consent. Any purported assignment by Buyer in violation of this paragraph shall be void ab initio.
IN WITNESS WHEREOF, the parties have each caused this Agreement to be entered into and signed, effective and delivered as of the date first above written.
Seller: Primary Wave Local, LLC
49 Marble Ave – Suite 2
Pleasantville, NY 10570