Toll Free Service Agreement

Intelligent Number Bundled Marketing Services Agreement

This Intelligent Number Bundled Marketing Services Agreement, including the Standard Terms and Conditions attached hereto and incorporated by reference (this “Agreement”) is entered into by and between Primary Wave Media, LLC, a Delaware limited liability company with an address of 49 Marble Ave., Suite 102, Pleasantville, New York 10570 (the “Company”) and [Company Name] with an address of [Company Address] the “Co-User”), dated as of  [Start Date] for certain Bundled Marketing Services (as hereinafter defined).

  1. During the Term (as hereinafter defined) of this Agreement, Company will provide the Bundled Marketing Services defined below and grant the Co-User the exclusive right to use the telephone number [Toll Free Number] (the “Number”) in the Territory (as hereinafter defined), 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 applicable 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 during the Term of this Agreement or in the Territory 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 below. The services set forth in a) through d) above, together with the Number, 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, “Territory” shall mean [Location]as used herein, “Location(s)” shall mean the place or places designated from time to time in writing by Co-User as the location to which calls to the Number shall be routed to ______________. 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 through a RespOrg utilizing the SMS/800 Database; and that subscribership of the Number cannot be transferred from Company to Co-User or any other party.
  1. 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 device 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”).
  1. This Agreement shall be effective on the date of its execution (the “Effective Date”) and shall have an initial term of [Length of Agreement] the “Initial Term”), unless terminated by Company in accordance with Paragraph 2 of the Standard Terms and Conditions hereof. At the end of the Initial Term, or any Renewal Term as defined below, Co-User shall have the option to renew for one (1) to five (5) additional years (the term of any such renewal being referred to herein as a “Renewal Term”) by giving Company an irrevocable written notice of such renewal at least ninety (90) days prior to the expiration of the then-current Initial Term or Renewal Term. If Co-User fails to provide Company with either a notice of renewal or a notice of cancellation at least ninety (90) days prior to the expiration of the then-current Initial Term or Renewal Term, this Agreement shall be automatically renewed for additional successive one (1) year terms, with all other terms and conditions set forth herein in full force and effect.  The Initial Term and any Renewal Terms shall be collectively referred to herein as the “Term.”
  1. (a)      Co-User shall pay the following amounts to Company: (i) a monthly marketing fee of [Amount] (the “Monthly Fee”), with the first Monthly Fee due upon execution of this Agreement; (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”) and (iii) upon the execution of this Agreement, a $0 set-up fee (“Set-Up Fee”). (The Telecom Charges, together with the Monthly Fee, the Set-up Fee and the Text Fees, are hereinafter referred to as the “Billed Charges”), which are attributable to Co-User’s use of the Number.  The Telecom Charges shall be $0.05 per minute plus applicable taxes, after the first included 100 minutes per month.  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. Co-User will be charged 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 as provided in (b) below.  Upon each Renewal Term hereof, Company shall have the right to increase the Monthly Fee at any time or times, 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 charge, 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.  Certain telecommunications carriers may require advanced payment. By the undersigned’s signature below, the undersigned, on behalf of Co-User and the undersigned, hereby irrevocably authorizes and directs Company, on behalf of the telecommunications carrier of Company’s choice to bill Co-User an advance payment of One Hundred dollars ($100.00), to pre-pay the Telecom Charges, then again each time the Billed Charges account balance falls below ten dollars ($10.00), in the event the Company’s selected telecommunications carrier requires such advance payment.  A credit card authorization form (“Authorization Form”) is attached hereto as Schedule 1 and incorporated herein by this reference and the undersigned, on behalf of Co-User and the undersigned shall complete and execute the Authorization Form upon the execution of this Agreement.  Co-User will keep the credit card on file current, and That will immediately provide Company with updated credit card information should the credit card on file expire or be cancelled, suspended or unable to incur new charges . 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 2 of the Standard Terms and Conditions) 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 and expenses of any outside collection agencies.
  1. Co-User and its shareholders, directors, officers, employees, agents, contractors, successors and assigns, affiliates and subsidiaries (such parties being collectively referred to herein as “Co-User Representatives”) shall indemnify and hold Company and its shareholders, directors, officers, employees, agents, contractors, successors and assigns, affiliates and subsidiaries ( such parties being collectively referred to herein as “Company Representatives”) harmless of and from any and all costs and expenses (including, without limitation, reasonable attorneys’ fees), losses, claims, liabilities or obligations, incurred by Company or its Representatives arising out of Co-User’s or  Co-User Representatives’ acts or inactions relating to its or their 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 the Co-User Representatives s related to the subject matter of this Agreement including any negligent or willful or reckless act by Co-User or the Co-User Representatives or due to any breach of this Agreement.  IN NO EVENT SHALL COMPANY OR ITS SUPPLIERS’ OR COMPANY REPRESENTATIVES’ LIABILITY TO CO-USER OR CO-USER REPRESENTATIVES 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 COMPANY REPRESENTATIVES BE LIABLE TO CO-USER OR ANY OTHER PERSON, 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 Co-User Representatives 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 by calling 914-200-0000 or emailing support@ringboost.com.
  1. 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 third party to do so. Any and all rights to the Number will be retained by Company. 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 2 of the Standard Terms and Conditions, 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 Numbers 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, or to encourage or assist any other third party to do so. 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 providing the Bundled Marketing Services specified herein.  Co-User understands and agrees that its payment to Company is the Monthly Fee for the Bundled Marketing Services; the underlying telecommunications carrier is imposing any charges for telecommunications and text services, and that carrier 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.
  1. This Agreement, together with the Standard Terms and Conditions attached hereto and incorporated herein by this reference, constitutes 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.