Toll Free Service Agreement

Toll-Free Marketing Services Agreement

This Toll-Free 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], a _________ corporation, with an  address of [Company Address] (the “Co-User”), dated as of  [Date] for certain Toll-Free Marketing Services (as hereinafter defined).

  1. During the Term (as hereinafter defined) of this Agreement, Company will provide the Toll-Free Marketing Services defined below and grant the Co-User the exclusive right to use the telephone number [1-8xx-xxx-xxxx] (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 Toll-Free Services defined below. The services set forth in a) through d) above, together with the Number, shall be collectively referred to herein as the “Toll-Free 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 [Licensed Territory] 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 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 for any reason. 
  2. This Agreement shall be effective on the date of its execution (the “Effective Date”) and shall have an initial term of two (2) years (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 [$000.00] (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, are hereinafter referred to as the “Billed Charges”), which are attributable to Co-User’s use of the Number.  The Telecom Charges shall be $0.06 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 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 to such carrier when due. 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 charge, Company shall increase the Telecom Charges 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 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 Toll-Free  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 Toll-Free  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 Toll-Free 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.
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  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 Toll-Free  Marketing 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@primarywave.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 Toll-Free  Marketing Services specified herein.  Co-User understands and agrees that its payment to Company is the Monthly Fee for the Toll-Free  Marketing Services; the underlying telecommunications carrier is imposing any charges for telecommunications 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 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.

 

 

STANDARD TERMS AND CONDITIONS

  1. 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 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 Paragraph 4 of the Agreement; (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 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; (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 or to assist or encourage others to take any action to become the subscriber of record of the Number or to hold itself out to third parties as a subscriber or as having authority over the Number; and (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.
  2. 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 written notice by Company, 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 service 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 2, 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 Co-User’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 elsewhere. Upon termination or expiration of this Agreement, the indemnification provisions set forth in the Agreement and Standard Terms and Conditions expressly survive indefinitely, including Section 5 of the Agreement and Section 13 of the Standard Terms and Conditions. The following provisions also expressly survive termination or expiration of the Agreement: the confidentiality provision set forth in Section 1(g) of the Standard Terms and Conditions, and Sections 6, 11 and 12 of the Standard Terms and Conditions.
  3. 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 the 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.
  4. Co-User warrants, represents and agrees that it shall not use the Number for any unlawful or deceptive purpose. Co-User is expressly prohibited from using the Number to transmit any unlawful, deceptive, harmful, threatening, abusive, libelous, vulgar, obscene, profane, hateful, or otherwise objectionable 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 may 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 right without first obtaining the permission of such right by holder. Co-User represents that Co-User is at all times in compliance with all applicable laws, regulations, or conventions including those related to data privacy, international communications, and exportation of technical or personal data.
  5. COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTIES TO CO-USER, ITS AFFILIATES, INCLUDING ANY CO-USER REPRESENTATIVES, OR ANY THIRD PARTY 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.
  6. 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 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 paragraph 8 below.
  7. 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.
  8. All notices to Co-User shall be sent to Co-User at the addresses first mentioned herein in the Agreement All notices to Company, and requests for Company’s consent or approval, shall be sent to Company at the address first mentioned herein[in the Agreement?] Each party may hereafter designate any other address by notice in writing to the other party. All notices shall be in writing and shall be sent by registered or certified mail, return receipt requested. The date of any notice hereunder shall be deemed the date of the mailing thereof.
  9. 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. The Agreement shall not be binding upon any party until signed by a duly authorized officer of such party, and countersigned by all other parties (or their duly authorized officers). The Agreement may be executed in counterparts, and may also be executed by means of faxed signature pages, though the parties will endeavor to replace any faxed signature pages with original signature pages at the parties’ earliest convenience. Notwithstanding the foregoing, once the Agreement is fully executed by faxed signature pages, the Agreement shall be in full force and effect and shall be fully binding for all purposes (regardless of the delivery or non-delivery of original signature pages thereafter).
  10. Each party hereto has participated equally in the preparation and negotiation of the Agreement and each party hereto hereby unconditionally and irrevocably waives to the fullest extent permitted by law any rule of interpretation or construction requiring that the Agreement be interpreted or construed against the drafting party. 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.
  11. 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.
  12. In the event that Company commences a legal action or incurs other costs to enforce its rights under this Agreement (including, without limitation, collection company fees), Company shall be entitled to recover its reasonable attorneys’ fees and/or costs from Co-User.
  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 and Company Representatives harmless from any and all claims from 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. 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.