Last Updated: October 17, 2014
You must read and agree to all of the terms below.
By submitting an order on ringboost.com (the “Website”), you (“you” may be referred to as “Co-User” herein), on behalf of yourself and your affiliates, agree to be bound by the terms and conditions set forth herein, including any changes or amendments hereto (the “Terms” or the “Agreement”). If you are submitting an order on behalf of an organization, you are agreeing to these Terms for that organization and representing that you are a duly authorized representative of the organization and that you have the authority to bind that organization to these Terms (in which event, “you” and “your” will refer to that organization). You further represent that you are authorized to enter into financial transactions and are authorized to use credit cards on behalf of your organization or as an individual, if you are using a personal credit card. You may use the Bundled Marketing Services (defined below in Paragraph 1) only in compliance with these Terms and only if you have the power and capacity to form a contract with the provider of the Bundled Marketing Services, Primary Wave Media, LLC, a Delaware limited liability company (the “Company”), and are not barred under any applicable laws, regulations, or orders from doing so. Please contact email@example.com if you have any questions regarding these Terms.
Company reserves the right to update and change the Terms from time to time without notice in our sole discretion. We will indicate at the top of these Terms the date that these Terms were last updated. Any changes will be effective as of the date of posting. Accordingly, we encourage you to check these Terms on the Website frequently. Continued use of the Bundled Marketing Services after any such changes shall constitute your consent to such changes. You can review the most current version of the Terms at any time at http://www.ringboost.com/terms.
1. During the Term set forth in Paragraph 3, Company will provide the Bundled Marketing Services defined below and grant the Co-User the exclusive license to use the telephone number selected by you on the Website (the “Number”) in the Territory (as selected by you on the Website), subject to any and all rules, obligations and conditions under applicable tariffs (including, without limitation, tariffs in relation to the non-payment for service, abuse of service or fraud), statutory and common law and any other laws or regulations promulgated by agencies having jurisdiction over the subject matter hereof. Co-User acknowledges that Company may provide services to third parties using the Number in geographic areas other than the Territory or upon termination or expiration of this Agreement. In addition and included with the fees described below, during the Term, Company shall provide to Co-User the following services in accordance with the terms and conditions of this Agreement: a) vanity toll free consulting services, including but not limited to, deployment, IVR and routing solutions, tracking and reporting options in connection with the Location(s) (as hereinafter defined) designated by Co-User from time to time; b) vanity toll free marketing assistance and strategy provided to Co-User and its advertising agency on an as needed basis; c) access to special offers given to other Company licensees from outside vendors; and d) the Intelligent Number Services defined in Paragraph 2 below. The services set forth in a) through d) above, together with the exclusive license of the Number in the Territory during the Term, shall be collectively referred to herein as the “Bundled Marketing Services.” Company will provide the services set forth in a) and b) above on an on-going basis during the Term, and, unless otherwise mutually agreed in writing by the parties, Company’s total time spent on such services shall not exceed three (3) hours per month. As used herein, “Location(s)” shall mean the place or places designated from time to time by Co-User as the location to which calls to the Number shall be routed to, as selected on the Website. Co-User understands and agrees that the Number is integral to the Bundled Marketing Services; that the Number has been assigned to the Company directly from the SMS/800 Database; and that subscribership of the Number cannot be transferred from Company to Co-User or to any other party.
2. The Number will include SMS text messaging capabilities (the “Intelligent Number Services”), giving callers to the Number the option to receive text messages sent to their mobile devices through interaction with the Company’s IVR system. Included with the Intelligent Number Services is access to one (1) keyword selection and two hundred (200) text messages per month, with a charge of $.03 per text for each additional text (the “Text Fees”).
3. This Agreement shall be effective on the date that you submit your order on the Website with respect to each Number (the “Effective Date”) and shall continue for the Initial Term (the term selected by you on the Website), unless terminated by Company in accordance with Paragraph 9 hereof. At the end of the Initial Term, or any Renewal Term as defined below, this Agreement shall automatically renew for successive one (1) year terms (the term of any such renewal being referred to herein as a “Renewal Term”), unless you give Company an irrevocable written notice of cancellation at least ninety (90) days prior to the expiration of the then-current Initial Term or Renewal Term that you do not wish to renew. The Initial Term and any Renewal Terms shall be collectively referred to herein as the “Term.” The automatic renewal described above shall not apply to the month-to-month option; month-to-month contracts may be cancelled by the Co-User at any time upon thirty (30) days’ notice.
4. (a) Co-User shall pay the following amounts: (i) a monthly marketing fee to Company as set forth on the Website during the check-out process (the “Monthly Fee”), with the first Monthly Fee (prorated for a partial month as applicable) due immediately; and (ii) all telephone charges billed by any and all telecommunications carrier(s), together with all Federal, State, municipal and all other local taxes, surcharges and regulatory fees of any description billed by any such telecommunications carrier(s) (“Telecom Charges”) (the Telecom Charges, together with the Monthly Fee and the Text Fees, are hereinafter collectively referred to as the “Billed Charges”), which are attributable to Co-User’s use of the Number, which Telecom Charges charge shall be $0.06 per minute plus applicable taxes, after the number of minutes per month that you selected on the Website, and the Text Fees. Co-User may receive billing statements and receipts from Company for Telecom Charges and Text Fees when Company is acting as a billing agent for the underlying telecommunications carrier. If Company is not acting as a billing agent for the underlying telecommunications carrier, Co-User will be billed directly by the telecommunications carrier and shall pay the Telecom Charges and Text Fees to such carrier when due, and in accordance with Paragraph 4(b) hereof. Company will charge Co-User a fee of $25 for each key word change made to the Intelligent Number Service platform, after the initial one (1) keyword has been chosen. Co-User warrants, represents, acknowledges and agrees that Co-User shall be solely responsible for and shall pay any and all Billed Charges incurred on and after the Effective Date. Upon each Renewal Term hereof, Company shall have the right to increase the Monthly Fee at any time or from time to time, provided that increases shall not exceed five percent (5%), during any one (1) year period, based on the Monthly Fee of the last month of the preceding term. In the event that the underlying telecommunications carrier notifies Company of a rate change on Company that increases the per minute/per text charges, then Company may increase the Telecom Charges or the Text Fees to Co-User.
(b) Company will bill Co-User monthly, in advance, for the Monthly Fee. All Billed Charges shall be paid by credit card on which Co-User, or a principal of Co-User, is an authorized signatory. The credit card shall be valid, in good standing, and able to incur new charges. Co-User will keep the credit card on file current, and will immediately provide Company with updated credit card information should the credit card on file expire, be cancelled, or be unable to accept new charges. Co-User’s indicated credit card will be charged monthly for all Billed Charges. Co-User will receive an acknowledgment in the form of electronic receipts and/or paid invoice for the Billed Charges, which shall be delivered using the email address designed by Co-User pursuant to Paragraph 16.
(c) Failure to pay the Billed Charges within 5 days after the billing due date any month during the Term may result in termination of the Bundled Marketing Services (or the Agreement pursuant to Paragraph 9 hereof) and, at the Company’s sole discretion, a reconnect fee of $250 will be due in order to reinstate the Bundled Marketing Services for the remaining duration of the Term, provided, however, that the reconnect fee, if allowed by the Company, may only be paid within 30 days of the date that the late payment became due. After 30 days, Co-User shall have no option to reconnect or reinstate the Bundled Marketing Services and the Company may freely enter into contracts with third parties concerning the Number in its sole discretion. Interest shall accrue at the rate of 1% per month on all amounts not paid within 10 days of the billing statement and processing charges will apply if a payment is declined ($10 per credit card decline, $20 per returned EFT). If collection efforts are required, Co-User shall be liable to Company for all costs of collection, including reasonable attorney’s fees and fees of any outside collection agencies.
5. Co-User, its shareholders, directors, officers, employees, agents, contractors, successors and assigns, affiliates and subsidiaries shall indemnify and hold Company and its shareholders, directors, officers, employees, agents, contractors, successors and assigns, affiliates and subsidiaries, harmless from and against any and all claims, demands, liabilities, fines, penalties, settlement obligations, other obligations, losses, damages, costs and expenses (including attorneys’ fees) arising from or incurred in connection with any act, or inaction by Co-User or arising out of Co-User’s or its shareholders, directors, officers, employees, agents, contractors, successors and assigns, affiliates and subsidiaries’ use of the Number, or of the Bundled Marketing Services, the Intelligent Number Services, or any other acts or omissions of Co-User and/or its shareholders, directors, officers, employees, agents, contractors, successors and assigns, affiliates and subsidiaries related to the subject matter of this Agreement including any negligent or willful or reckless act by Co-User or any of its shareholders, directors, officers, employees, agents, contractors, successors and assigns, affiliates and subsidiaries or due to any breach of this Agreement by Co-User or any of its shareholders, directors, officers, employees, agents, contractors, successors and assigns, affiliates and subsidiaries. This indemnification clause survives the Term indefinitely. IN NO EVENT SHALL COMPANY OR ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS AND ASSIGNS, AFFILIATES AND SUBSIDIARIES’ LIABILITY TO CO-USER OR ITS AFFILIATES REGARDLESS OF CAUSE OR FORM OF ACTION, EXCEED THE VALUE OF THE MONTHLY FEE OF THE MONTH PRECEDING THE INCIDENT GIVING RISE TO SUCH DAMAGES. IN NO EVENT SHALL COMPANY OR ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS, SUCCESSORS AND ASSIGNS, AFFILIATES AND SUBSIDIARIES BE LIABLE TO CO-USER OR ANY THIRD PARTY, FIRM OR ENTITY IN ANY RESPECT, WITHOUT LIMITATION, FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, ACTUAL, OR PUNITIVE DAMAGES, OR ANY LOST PROFITS OF ANY KIND. Co-User and its shareholders, directors, officers, employees, agents, contractors, successors and assigns, affiliates and subsidiaries agree that Company shall not be responsible for any interruption of service caused by any reason whatsoever whether or not subject to the control of Company. In the unlikely event of a service outage, Company will refund Co-User’s Monthly Fee, on a pro-rata basis, for the length of the service outage. If a service problem occurs, Co-User agrees to notify Company immediately at firstname.lastname@example.org.
6. Co-User understands and agrees that Company shall at all times remain the subscriber of record and end user for the Number during the Term and afterwards. Co-User shall have no ownership, leasehold, or proprietary interest in the Number. Co-User agrees that it shall use its good faith efforts to ensure that the Number remains utilized with active telephonic traffic during the Term. Company will have total and complete control of which carrier carries Intra/Inter LATA traffic. Co-User has no rights to become the subscriber of record of the Number, to port the Number to a different carrier, to submit any letter of authorization to any carrier or RespOrg, or to encourage or assist any other party to do so, and Company retains any and all rights to the Number. If Co-User attempts to remove or removes any Number from its current RespOrg, it will be considered a breach of this Agreement by Co-User and, in addition to Company’s rights under Section 9 hereof, Company will charge Co-User an inconvenience fee of $500 upon the first instance, $1,000 upon the second instance and $5,000 for any instance thereafter. Co-User will cooperate and use good faith efforts to ensure the return of the Number to Company. Co-User acknowledges Company’s right, title, and interest in and to the subscription rights to the Number and will not at any time do or cause to be done any act or thing contesting or in any way impairing or tending to impair any part of that right, title, and interest. In connection with Co-User’s use of the Number, Co-User will not in any manner represent that it has any ownership in the Number and Co-User acknowledges that use of the Number will not create in Co-User’s favor any right, title, or interest in or to the Number. Co-User understands and agrees that Company is not a telecommunications carrier and is not providing telecommunications services to Co-User under any applicable federal or state statute, regulation, rule, order or guidance. Co-User understands and agrees that the telecommunications services are provided by telecommunications carriers of Company’s selections and that Company is not Co-User’s telecommunications provider. Rather, Company is solely providing the Bundled Marketing Services specified herein. Co-User understands and agrees that its payment to Company is the Monthly Fee solely for the Bundled Marketing Services; the underlying telecommunications carrier separately and apart from this Agreement imposes charges for telecommunications and text services, and also collects any due taxes, surcharges, or regulatory fees. Company may act as a billing agent for the underlying telecommunications carrier. While Co-User may receive a billing statement from Company in its capacity as a billing agent, the Telecom Charges and Text Fees are imposed by the underlying telecommunications carrier and the taxes, surcharges, and regulatory fees are charged by the underlying telecommunications carrier rather than Company.
7. These Terms constitute the entire agreement between Company and Co-User as to the subject matter hereof, and supersede all previous agreements, warranties or representations, oral or written, which may have been made between Company and Co-User as to the subject matter hereof.
8. Co-User warrants, represents, acknowledges and agrees as follows: (a) Co-User has the full right and power to enter into and fully perform this Agreement and to make the representations, warranties and covenants contained herein, has entered into the Agreement freely and voluntarily, and is empowered to execute the Agreement; (b) Company has not made any statement or representation to Co-User regarding any fact relied upon by Co-User in entering into this Agreement, and Co-User has not relied upon any statement, representation or promise made by Company in executing the Agreement, except as expressly stated in the Agreement; (c) Co-User shall be solely responsible for and shall pay any and all Billed Charges,, fees and/or any other sums payable in connection with Co-User’s use of the Number, including, without limitation, all amounts payable pursuant to Section 4; (d) There exists, at commencement of the Agreement and for all periods thereunder, no legal reason that Company should deny services to Co-User; that Co-User is of legal majority age (i.e., 18 years of age or older in most jurisdictions), in the case Co-User is an individual; and that Co-User’s use of the Number is not for any illegal or injurious purpose or purposes. Co-User represents and warrants that Co-User will not intercept or attempt to intercept the communications of others using the Number or interfere with the Company’s or others’ use of the Number in any manner. Co-User will comply with all applicable laws, regulations, and legal requirements applicable to Co-User’s use of the Number; (e) Co-User shall test the Number, without charge, before marketing such Number or incurring other expenditures; and (f) Co-User is sharing the use of the Number and agrees that it has no ownership or leasehold interest in the Number. Co-User has no right to port the Number to a different telecommunications provider than chosen by Company and has no right to take any action to become the subscriber of record of the Number or to authorize or encourage any other third party to undertake any of the foregoing; (g) Co-User agrees to keep the existence of, and terms of this Agreement confidential, unless required by law, and if so required by law, shall provide Company with advance notice and an opportunity to seek a protective order or other similar action.
9. In the event of Co-User’s breach of any representation, warranty, covenant or agreement hereunder or other default hereunder (other than a payment default, in which case Company may terminate this Agreement immediately and without notice and opportunity to cure), which said breach or default is not cured within fifteen (15) days of notice by Company (provided Company may terminate or in its discretion, suspend, this Agreement immediately in the event it believes or is provided with notice of Co-User’s unlawful activities involving the Number or any services provided under this Agreement), this Agreement may be terminated by Company, and such termination shall be effective from the date of issuance by Company to Co-User of notice of such termination. Telecommunications services provided by an underlying carrier and Co-User’s right to use the Number may be terminated by Company at any time co-incident with or following the termination of this Agreement, or because of Co-User’s violation of, or conflict with, any governmental laws, rules or regulations, fraud, shortage of network facilities and components or any other ground under applicable tariffs. Upon the termination of this Agreement, Co-User shall no longer have the right to use the Number and Co-User warrants, represents, acknowledges and agrees that, upon the termination of this Agreement, Co-User shall immediately cease its use of the Number, and shall cease any marketing of the Number. In the event of termination pursuant to this Paragraph 9, Co-User shall pay Company a termination fee equal to the sum of all Monthly Fees remaining in the Term, which is a reasonable estimate of Company’s likely damages as a result of early termination of the Agreement and is not a penalty; Co-User acknowledges and agrees that this termination fee is fair and reasonable. Co-User will also promptly pay all Billed Charges, due up to and including the date of termination. Any and all rights associated with the Number will be retained by the Company, and the Company will be free to enter into an agreement with any third party with regard to the Number in the Territory or otherwise.
10. 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.
11. Co-User shall not use the Number for any unlawful or deceptive purpose. Co-User is expressly prohibited from using the Number to transmit any unlawful, harmful, threatening, abusive, libelous, vulgar, obscene, profane, hateful, or otherwise objectionable or deceptive information of any kind, including, but not limited to, encouraging conduct that would constitute a criminal offense, infringe third party rights, give rise to civil liability or otherwise violate any local, state, national or other law. Co-User shall not use the Number to upload, post, reproduce or distribute, in any way, any information, software or other material protected by copyright or any other intellectual property rights without first obtaining the permission of such right by holder. Co-User represents that Co-User is at all time in compliance with all applicable laws, regulations, or conventions including those related to data privacy, international communications, and exportation of technical or personal data.
12. COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES TO CO-USER AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PURPOSE OF THE SERVICES PROVIDED. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE.
13. Co-User understands and acknowledges that third parties may have intellectual property rights in the word or words that correspond with the Number. Accordingly, Co-User shall use the Number at its own risk, and shall indemnify and hold Company 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. Co-User represents that it will not use the Number in a manner that infringes the trademark or other intellectual property rights of third parties.
14. The Agreement has been entered into in the State of New York, and the validity, interpretation and legal effect of the Agreement shall be governed by the laws of the State of New York applicable to contracts entered into and performed entirely within the State of New York. All claims, disputes or disagreements which may arise out of the interpretation, performance or breach of the Agreement shall be submitted exclusively to the jurisdiction of the state courts of the State of New York, or the Federal District courts, located in New York County. Co-User hereby submits to the sole jurisdiction of the aforesaid courts and agrees that any process in any such action or proceeding may be served upon Co-User by delivery or mail in the same manner as notices pursuant to Section 16 below.
15. The Agreement shall inure to the benefit of and be binding upon each of the parties hereto and their respective successors, permitted assigns and representatives. Company shall have the right to assign the Agreement. Co-User shall not have the right to assign, sublet or sublicense the Agreement or any of its rights or interests hereunder without Company’s prior written consent. Any purported assignment by Co-User in violation of this paragraph shall be void ab initio.
16. All notices to Co-User shall be sent to Co-User at the email address submitted on the Website. All notices to Company shall be sent to Company at email@example.com. Each party may hereafter designate any other e-mail address by notice to the other party at such email addresses. The date of any notice hereunder shall be deemed the date of transmission.
17. Nothing in the Agreement shall constitute a partnership, joint venture or other agency relationship between Co-User and Company. Company is performing all of its obligations hereunder as an independent contractor. Co-User does not have the right to execute any agreement or incur any obligation for which Company may be liable or otherwise bound; nor shall Company be liable for any representation, act or omission of Co-User that is contrary to the provisions hereof.
18. 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.
19. 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.
20. In the event that Company commences a legal action or incurs other costs to enforce its rights under this Agreement against Co-User (including, without limitation, collection of Company fees), Company shall be entitled to recover its reasonable attorneys’ fees and/or costs and collection agency fees from Co-User.
21. 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.