Terms and Agreement
This License Agreement is entered into with reference to the following facts:
- SAK has the exclusive right, subject only to all rules, obligations, limitations, and conditions under applicable tariffs and statutory and common law, as may apply, and any other laws or regulations including those promulgated agencies having Jurisdiction of the Subject to the use of telephone number (hereinafter referred to as “Telephone Number”).
- SAK wishes to license to LICENSEE its right to use Telephone Number to advertise, market, promote and otherwise commercially exploit.
- LICENSEE wishes to use the stated Telephone Number for marketing purposes.
NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement, the Parties established this relationship on the terms and conditions that follow:
- Subject Matter.
The subject matter of this License Agreement is:
- The right to use Telephone Number, subject only to all rules, obligations, limitations, and conditions under applicable tariffs, statutory and common law copyright or trademark laws as may apply, and any other laws or regulations, including those promulgated by agencies having jurisdiction of the subject matter. Commencing on the effective date, Telephone Number calls from telephone landlines within the Area Code(s) (hereinafter referred to as “Area Code(s)”) and cell phone calls originating from cell phone telephone numbers starting with Area Code(s) will be routed and become operative at Location, and continuing until this License Agreement is terminated in the manner provided herein with the understanding that if and when geo targeting of cell phones becomes available or viable, then cell phone calls may be handled differently; and
- The right to use Telephone Number is more specifically defined as the right to receive telephone calls dialed to the Telephone Number from an Area Code(s) phone number within the continental United States of America during the term of the License Agreement, commencing when the Telephone Number becomes operative at Location.
- Duties of the Parties.
In consideration of the mutual covenants and restrictions contained herein, the parties promise and agree as follows:
- SAK agrees to cause telephone calls connected to Telephone Number from a number that starts with one of the Area Code(s) within the continental United States of America, commencing when the Telephone Number becomes operational at Location and continuing for the duration of this License Agreement, to be routed via available telecommunications facilities across a Local Area Code(s) telephone number, designated by LICENSEE, terminated at Location.
- SAK agrees to cause such routing to become operational at Location at the earliest possible date, as determined by the telecommunications carrier, following execution and return of this License Agreement.
- SAK reserves the right, at its sole and exclusive discretion, to utilize the services of any telecommunications carrier, it so chooses, during the term of this License Agreement.
- LICENSEE agrees to designate, and maintain the designation of, the Local Area Code(s) telephone number(s) across which Telephone Number Area Code(s) calls will be routed during the License Agreement. LICENSEE further agrees to provide compatible telephone line(s), telephone equipment and personnel required to receive the telephone calls routed across the designated Local Area Code(s) telephone number(s) to Location.
- Apart from the rights and duties imposed upon the parties herein, SAK shall have no control over, nor knowledge of the conduct of LICENSEE`S business. Accordingly, LICENSEE agrees to indemnify and hold SAK harmless, including but not limited to any reasonable attorney fees incurred by SAK, and defend SAK from any and all actions arising from or pertaining to LICENSEE`S use of Telephone Number.
- In no event shall either party be liable in contract, tort, or otherwise for incidental, consequential, specific or indirect damages, including, without limitation, lost business profits, even if that party has been advised of the possibility of same, arising out of its acts or omissions in connection with the License Agreement.
- Neither party shall be liable for any delay or failure to perform its obligations hereunder due to any case beyond its reasonable control, including, but not limited to, failure or interruption of the telecommunications or internet carriers to provide adequate service, labor disputes, fire, accident, act of the public enemy, war, rebellion, insurrection, sabotage, transportation delay, shortage of raw material, energy of machinery, act of God, government or the judiciary, provided however that nothing contained herein shall be construed to relieve LICENSEE of his/its obligation to make all payments due hereunder as they become due and payable.
- This License Agreement creates no agency, contract of employment, partnership, association or joint venture of any description between the parties. The parties intend and agree that no right of continued or vested use of Telephone Number not specifically and expressly created herein shall be created or extended, based upon any general principal of estoppel or any other general principal of law.
- LICENSEE agrees to notify SAK during normal Eastern Standard Time business hours of any malfunction in the Telephone Number routing systems which affect LICENSEE`S use of Telephone Number at Location.
- LICENSEE acknowledges and agrees that this right to use Telephone Number is subject to all applicable tariffs, laws and rules including and particularly those in relation to non-payment for services, abuse of services, fraud and shortage of network facilities or components.
- Compensation Payable to SAK
(a) LICENSEE agrees to pay SAK an annual License Fee in automatic monthly installments.
- As consideration for the rights and license granted hereunder, LICENSEE agrees to pay SAK for the First Term, for a one year term, which is due and payable on or before the start of the one year term. LICENSEE has the option to pay the amount due in monthly installments as long as elected prior to the start of the term. LICENSEE shall submit monthly payments no later than the 1st day of each month. Payments made after the 1st day of each month shall be considered late.
Any payments not received by the 7th day after due shall incur a $500.00 late fee and shall be considered a default.
The annual License Fee, monthly installments, set-up fees, line charges and any other charges due from LICENSEE pursuant to this Agreement, will be automatically deducted from the financial institution (“bank”) designated by LICENSEE, no earlier than the due date of the charges. At the time this Agreement is signed, LICENSEE shall provide SAK with a voided check listing the bank`s information and will sign an authorization allowing SAK and its affiliates to initiate the deductions.
Any payments not received by the 7th day after due shall incur a $500.00 late fee and shall be considered a default.
- The set-up fee is hereby due at the signing of this Agreement. The cost of any call routing and line charges including taxes and fees relating to Telephone Number changes made after the commencement of this Agreement will be the responsibility of the LICENSEE.
- LICENSEE agrees to complete a credit application for the telecommunications carrier or SAK so that the Telephone Number relating to Area Code(s), phone charges may be billed directly to LICENSEE at SAK`s option. Further, LICENSEE agrees to pay all phone charges i.e. all telephone charges billed by or through the telecommunications carrier (including time and usage, line charge and long distance), together with all Federal and state taxes, surcharges and regulatory fees of any description (the “Billed Charges”) which are attributable to Telephone Number and LICENSEE`S use of Telephone Number at Location or otherwise as it relates to Area Code(s). LICENSEE acknowledges that if said credit application is required, that it may be required to be completed before service can begin and further agrees to pay all said telecommunications charged upon receipt.
- SAK shall have the right to increase the License Fee at any time or times, provided that increases during any one (1) year period shall not exceed Seven Percent (7%) of the then current License Fee.
- LICENSEE agrees to pay, and hold SAK harmless from, any claims for any and all charges imposed by the Local Area Code(s), i.e. LICENSEE`S local phone company which covers Location, including but not limited to, line installation, line repair, line maintenance, line switching, advanced line gestures, monthly flat rate charges, usage charges, surcharges, deaf and disabled fund charges, local, state, and Federal taxes or any other fees whatsoever imposed in relation to the designated Local Area Code(s) telephone number(s) across which Telephone Number is routed at Location.
- Designation of Local Area Telephone Number.
The designated Local Area Code(s) telephone number across which Telephone Number for designated Area Code(s) shall be routed is the Local Area Code.
- Effective Date and Term of Agreement.
This License Agreement shall be entered into for a period of one year. LICENSEE, at their option, may renew this Agreement on the same terms and conditions as set forth herein for a second term of one year, provided that during the current term SAK is given at least sixty days advance written notice of their intention to renew for an additional term. If LICENSEE exercises their option to renew this Agreement for a second term, then SAK hereby grants to LICENSEE a right to request an additional term provided that during the term SAK is given written notice at least sixty days in advance of its desire to renew for an additional term and shall be on the same terms and conditions as set forth herein. Any request for an additional term will be considered accepted by SAK unless LICENSEE is otherwise advised by SAK prior to the new term. There shall be a Seven Percent (7%) License Fee increase for the second term and for each additional term.
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- In the event of LICENSEE`S default hereunder, this License Agreement may be terminated immediately by SAK, and termination shall be effective from the date of issuance by SAK of such notice or by ending routing of calls from telephone number to local area code(s) telephone number.
- Telecommunications and web address services may be terminated by SAK at any time co-incident with or following the termination of this License Agreement, or because of a violation or alleged violation of any Telecommunications rules or regulations, fraud, shortage of network facilities and components or of any other tariffs, laws, rules, or regulations by any party or as a result of this Agreement.
- Upon termination for any reason SAK retains all rights to use, direct, control, point and manipulate Telephone Number or any derivatives thereof and LICENSEE will retain no rights or claims.
- Limitation of Liability
LICENSEE acknowledges that no shareholder, director, officer, or agent of SAK shall be liable hereunder to LICENSEE in tort, contract, or otherwise for the failure, either actual or alleged, of SAK to perform its obligations hereunder, such responsibility and liability to be limited to that of SAK and any such liability of SAK shall be limited to one- twelfth of the yearly License Fee related to the Telephone Number.
The rights and duties imposed under this License Agreement are exclusive to the LICENSEE, are non-divisible, non-assignable, and may not be sub-licensed, transferred or assigned by LICENSEE, to any other entity without the advance written consent of SAK. Nothing herein shall prevent SAK from assigning its rights hereunder.
- Governing Law.
This License Agreement shall be governed by applicable Federal and/or State laws, rules, communication tariffs and rules and the laws of the State of New York.
- Arbitration; Submission to Jurisdiction
The parties agree that any dispute arising between them arising out of this Agreement or the relationship herein created, which cannot be resolved amicably, shall be submitted to the American Arbitration Association in Buffalo, New York before any suit is filed in a court of competent jurisdiction, which the parties agree will be venued in Buffalo, New York. The parties further agree to be bound by the decision of the arbitrator and that a judgment on the award rendered by the arbitrator, which may include administrative fees costs and attorney fees, may be enforced in any court having jurisdiction hereof. The parties may agree to enter into mediation at any time with the cost of the mediator being divided equally.
- This Agreement contains the entire understanding between the parties with respect to its subject matter and supersedes all prior understandings and Agreements, if any, between and among them.
- This Agreement shall not be considered modified by any course of dealing between the parties and may only be amended by a written Agreement executed by both of the parties.
- This Agreement shall be binding upon and inure to the benefit of the parties and their respective legal representatives, heirs, devisees, executors, administrators, assigns and successors.
- Each of the parties shall promptly execute and deliver all documents, provide all information, and take or forebear from all actions as may be reasonably necessary or appropriate to carry out the purposes of this Agreement.
- This Agreement may be executed in one or more counterparts, all of which shall be taken to be on and the same instrument and all of which shall have the same force and effect as if all of the parties have executed the same counterpart, and any fully executed Agreement may be considered an original.
- All notices shall be in writing and shall be deemed effective when given by personal delivery or courier or when sent by certified or registered mail to the last known address of the party. Notice upon one individual or corporate entity of LICENSEE shall be considered and construed to have given notice to all of LICENSEE.
- All pronouns and any variations therefore shall be deemed to refer to the masculine, feminine, neuter, singular, or plural, as the identity of the person or persons may require.
- No failure by any party to insist upon the strict performance of any covenant, duty, condition of this Agreement to exercise any right of remedy consequent upon a breach thereof shall constitute a waiver of any such breach or of such or any other covenant, term or condition.
- Each of the Parties expressly acknowledges that this Agreement does not constitute, create or contemplate an agency relation, contract of employment, partnership, association, joint venture, a franchise or similar entity or relationship.
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(k) The parties hereto intend and believe that each provision of this Agreement complies with all applicable local, state and federal laws and judicial decisions etc. However, if any provision or provisions, or if any portion of any provision, in this Agreement, is found by a court of law or alleged by a government entity to be in violation of any applicable local, state or federal ordinance, statue, law, rule, administrative or judicial decision, or public policy or such court, or government entity should declare such portion, provision or provisions of this Agreement to be illegal, invalid, unlawful, void or unenforceable as written, then it is the intent of the parties hereto that such portion, provision or provisions shall be given force to the fullest extent that they are legal, valid, and enforceable, that the remainder of this Agreement shall be construed as if such illegal, invalid, unlawful, void or unenforceable, provision or provisions were not contained herein except as it relates to compensation to SAK, and that the rights, obligations and interest of the parties under the remainder of this Agreement shall continue in full force and effect, except that such construction shall not reduce or modify compensation to SAK and shall apply to the rights and obligations of both of the parties and not just the one affected in the particular determination, proceeding or allegation.
(l) This Agreement shall be interpreted under the internal laws of the State of New York.
(m) All advertising, use, promotion and marketing done using Telephone Number shall comply with all applicable laws, statues and Cannons of Ethics.
(n) LICENSEE shall take no action which damages the rights, goodwill or reputation of Telephone Number, and SAK use, rights, control and/or “ownership” of same.
(o) LICENSEE shall not attempt to trademark, service mark or copyright Telephone Number or any other similar combination of number sequence with or without dashes or other punctuation.
(p) LICENSEE shall not disclose any portion of this Agreement to any third party without the advance written consent of SAK.
(q) The Preliminary statements of this Agreement are an integral part of this Agreement.
AUTOMATIC DEDUCTION AUTHORIZATION
Authorization is hereby granted to SAK and its affiliates to initiate deductions from the financial institution (“bank”) designated by LICENSEE for purposes of paying all charges due pursuant to the terms of this Telephone Number Marketing License Agreement. Charges due include but are not limited to Annual Fees, monthly installments, set up fees and line charges. The deductions will be made, no earlier than the due date of the charges, from the bank account listed on the voided check provided to SAK by LICENSEE at the time this Agreement is signed. LICENSEE attests that the bank listed on the voided check is hereby authorized to accept the deductions initiated by SAK.