Terms and Conditions
Last updated September 2020
Thank you for using Fast Dial, owned by Radius Communications, Inc. (“Radius,” the “Company,” “we,” “us” or “our”), These Terms and Conditions (the “Terms” or the “Agreement”) constitute a legally-binding agreement made between you, whether personally or on behalf of an entity (“you”) and Radius concerning your access to and use of our applications, websites, and all of our products, services, media forms and/or channels (collectively, the “Services”). You agree that by accessing our Services in any way, you have read, understood, and agree to be bound by all of these Terms.
These Terms refer to a license (the “License”) granted to you under certain terms and conditions set forth herein. Therefore, you will be additionally referred to from time to time in these Terms as the “Licensee,” and the Company, as the “Licensor,” and each as a Party, and collectively as the “Parties.”
IF YOU DO NOT AGREE WITH ALL OF THE TERMS HEREIN, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SERVICES AND YOU MUST DISCONTINUE USE IMMEDIATELY.
1. Background Information. The Company manages and facilitates the routing of various Fast Dial number numbers “#00000” and owns or will own the goodwill associated with the numbers. The Company has facilitated the routing and obtained the rights to use Fast Dial number numbers “#00000” in conjunction with at least four (4) major wireless telecommunication carriers (AT&T, Verizon, Sprint, and T-Mobile, and collectively, the “Carriers”), which Carriers may be subject to change from time to time. The Licensee recognizes the value of such consolidated routing and desires to contract the Company to manage the consolidation and routing of the Fast Dial number for the use in the United States of ___________, in connection with the Licensee’s business in the designated marketing area(s) set forth in Schedule A to this Agreement, within each of the “Area Codes” and collectively within the “Area Codes” set forth in same. Accordingly, for valuable consideration, the receipt and sufficiency of which is hereby expressly acknowledged by each party, the parties hereby agree as follows.
2. Grant of Rights. The Company hereby grants to the Licensee an exclusive license to use the Fast Dial number numbers “#00000” in the Area Codes set forth on Schedule A. The Company will direct all wireless telephone calls using the Fast Dial number originating from wireless telephones within the Area Codes of the Licensee.
3. Term. The term of this Agreement shall be twelve (12) months (the “Initial Term”) with a first right-of-refusal extended to the Licensee for an additional one-year (the “Renewal Term,” and collectively with the Initial Term, the “Term”) at a renewal at price TBD. The Licensee shall indicate its desire to exercise the right-of-refusal prior to sixty (60) days of the conclusion of the Initial Term.
4. Fees, Expenses, and Deposits. SMS Texting Available for $______ per month per state (optional):
(a) Initial Fee. Simultaneously with the execution of this Agreement, the Licensee shall pay a one-time provisioning fee of $______ for Nationwide Service (within the 50 United States) plus the first month’s payment of $_______ .
(b) Services Fee. During the Initial Term, the Licensee will pay the Company $______ per month.
(c) Telephone Charges. All wireless telephone calls using the Fast Dial number and originating from a wireless telephone within the Area Codes will be directed to the Licensee’s office number that has been obtained by the Company and its agents.
(d) Advertising. The Licensee must include Fast Dial number “#00000” in all marketing and advertising campaigns, initiatives and efforts where the provision of contact information is appropriate.
5. Compliance with Telecommunication Laws. The Licensee’s marketing and advertising campaigns, initiatives and efforts must contain all information required by state and federal law and regulation and by agreement with the Carriers. The Licensee is responsible for keeping itself updated on the changing status of any such laws, regulations and agreements, and the Company waives any liability for same as to the actions or inactions of the Licensee.
6. “Landlines.” The Fast Dial number numbers do not presently work on “landlines” or “hard lines.”
7. Retained Rights. The Company and its affiliated entities retain the rights to promote, use, exploit, market, have marketed, and sell the Fast Dial number utilizing the Fast Dial number in all other DMAs. Additionally, upon the expiration of the Term of this Agreement, or if earlier upon the termination of this Agreement, all rights to use the Fast Dial number “#00000” shall revert back to the Company.
8. Covenants of the Licensee. The Licensee represents, warrants, and covenants that:
(a) Limited Approval Rights. The Licensee understands that it will have broad discretion about how it advertises the Fast Dial number in the DMA. The Licensee agrees to use its best efforts to market, promote, and deliver services under the Fast Dial number that are of high quality consistent with “best business practices.” The Licensee further acknowledges that its best efforts to exploit, advertise, promote, market and provide services throughout the Term of this Agreement is essential to enhance and preserve the reputation and goodwill of the Fast Dial number. The Licensee shall therefore not use the Fast Dial number in any manner that would reflect adversely upon the image, goodwill, and reputation of Company or the Fast Dial number.
(b) Ownership of the Fast Dial number. The Licensee acknowledges that, to the best of its knowledge and belief, the Company has the exclusive right, title and interest in and to Fast Dial number FAST DIAL NUMBER NUMBER“#000000” and further agrees that Licensee will not at any time cause to be done any act or thing contesting such right and interest. The Licensee acknowledges that nothing herein gives the Licensee any right, title, or interest in the Fast Dial number apart from the limited License granted hereunder and that the Fast Dial number is the sole and exclusive property of the Company. In no event shall the Licensee’s use of the Fast Dial number be deemed or construed to create or vest right, title, or interest in or to the Fast Dial number. In connection with its use of the Fast Dial number numbers , the Licensee shall not in any manner represent that it has any ownership in the Fast Dial number numbers .
(c) Compliance with Applicable Law. The Licensee shall comply with all laws, rules, regulations, and requirements of any administrative, judicial, private bar, governmental body or quasi-governmental entity which may be applicable to the operation of its License and the use of the FAST DIAL NUMBER as part of its business.
(d) Covenants Not to Compete, Not to Solicit, and Not to Circumvent. The Licensee, on behalf of itself and its Affiliates (as defined herein) will not, directly or indirectly, enter into any business or investment activity with any third-party that owns or markets Fast Dial numbering codes to any person or entity, including, but not limited to any person or entity located within the United States. Licensee further agrees not to undertake any business or investment activity on its own behalf to own or market Fast Dial numbering codes. Licensee further agrees not to solicit for employment any employee or independent contractor of the Company, and not to circumvent the Company in any business transactions or opportunities with persons or entities introduced to the Licensee through its relationship with the Company. These restrictions shall remain in full force and effect during the Term of this Agreement and survive for two (2) years following the termination of this Agreement. The Licensee, on behalf of itself and its Affiliates, acknowledges and agrees that the Company is doing business or will be doing business in every state of the United States. The Licensee and its Affiliates therefore acknowledge and agree that the geographic scope of these Covenants shall be the entire United States, and that such scope is reasonable in light of the type of services provide and industry space the parties operate in. It is the desire and intent of parties that the provisions of this Section 8 (d) shall be enforced to the fullest extent permitted under the law and public policies of any jurisdiction in which enforcement is sought. Should a court of competent jurisdiction determine any provision of this Section 8 (d) to be unenforceable, such court will have the power to revise the duration or scope of the offending provision, as the case may be, to make the provision enforceable to the fullest extent of applicable law, which revision shall be limited in any case to the jurisdiction where the court’s actions have a binding effect. The Licensee and its Affiliates acknowledge and agree that: (i) the scope and nature of the restrictions contained in this Section 8 (d) are a reasonable and necessary protection of the legitimate business interests of the Company; (ii) any violation of these restrictions would cause substantial injury to the Company; and (iii) the Company would not have consummated the transactions contemplated by this Agreement without receiving the consideration offered by the Licensee and its Affiliates in binding themselves to such restrictions. The Licensee and its Affiliates agree that the Company would suffer irreparable harm and could not be reasonably or adequately compensated in damages in an action at law in the event that any of the provisions of this Section 8 (d) were not performed in accordance with their specific terms or were otherwise breached.. It is accordingly agreed that the Company shall be entitled to specific performance of the terms of this Section 8 (d), including, without limitation, an injunction or injunctions to prevent breaches of this Section 8 (d), in addition to any other remedies to which the Company is entitled at law or in equity. The Licensee and its Affiliates waive any legal requirement to prove the inadequacy of money damages or to post security as a prerequisite to obtaining equitable relief.
(e ) Covenant Not to Disclose Confidential Information.
(i) Definitions. For purposes of this Agreement, the terms “Recipient” or “Receiving Party” shall mean you and “Disclosing Party” shall mean the Company with respect to Confidential Information (as defined below). “Confidential Information” means any information, technical data or know-how, including, without limitation: computer hardware or software programs or documentation, specifications, source code, object code, research, inventions, processes, designs, drawings, engineering, products, services, business plans, strategies, forecasts, projects and analyses; customers (including customer lists, leads or contact information); business processes, methods, products, and models; financial information and pricing; product and service specifications; information on sales, marketing, financial and/or business development; and, information that is traditionally considered to be proprietary or a trade secret; and any other information which is identified as confidential at the time of disclosure or can otherwise reasonably inferred to be confidential business information of the Company. Confidential Information, to the extent practicable, shall be disclosed in documentary or tangible form marked “Confidential;” however, these provisions shall extent to Confidential Information whether or no so marked.
(ii) Your Obligations with Respect to Confidential Information. The Parties hereby agree that: (i) Receiving Party shall instruct and require all of its employees, agents, and contractors who have access to the Confidential Information to maintain the confidentiality of the Confidential Information; (ii) Receiving Party shall exercise at least the same degree of care, but not less than reasonable care, to safeguard the confidentiality of the Confidential Information as Receiving Party would exercise to safeguard the confidentiality of Receiving Party’s own Confidential Information; and (iii) Receiving Party shall not disclose the Confidential Information, or any part or parts thereof, to any of its employees, agents, or contractors except on a “need to know” basis. Receiving Party agrees to undertake whatever action is reasonably necessary to remedy any breach of Receiving Party’s confidentiality obligations set forth herein or any other unauthorized disclosure of the Confidential Information by Receiving Party or by any third party, immediately upon becoming aware of such unauthorized disclosure.
(iii) Exclusions. The confidentiality provisions of this Section shall not apply to any information which: (A) Receiving Party can demonstrate was in its possession before disclosure; (B) is or subsequently becomes publicly available without Receiving Party’s breach of any obligation owed the Disclosing Party; or (C) is disclosed to Receiving Party without restriction on disclosure by a third party who had the right to disclose such information or (iv) Receiving Party can demonstrate with written evidence was independently developed without reliance on any Confidential Information.
(iv) Compelled Disclosure. If you are ordered or requested to disclose any Confidential Information provided by Company, pursuant to a court or administrative order, subpoena, summons, or other legal process, you will promptly notify Company (unless prohibited from doing so by law, rule, regulation or court order) in order that Company may have the opportunity to seek a protective order or take other appropriate action. You will also cooperate, at Company’s expense, in Company’s efforts to obtain a protective order or other reasonable assurance that confidential treatment will be accorded the information. If, in the written opinion of its counsel, you are compelled as a matter of law to disclose the Confidential Information provided by Company, you may disclose to the party compelling disclosure only the part of such Confidential Information as is required by law to be disclosed in the written opinion of its counsel, and you will use commercially-reasonable efforts to obtain confidential treatment therefor.
(v) Return and Destruction of Confidential Information. All Confidential Information (along with all copies or duplicates thereof) shall be returned promptly to Company or destroyed or rendered unusable (and certified as destroyed by you) upon the written request of Company or upon termination of this Agreement as set forth in Section 11; provided however, that such request is made within the duration period of the obligations of confidentiality as set forth in Section 11 (d) “Survival of Restrictive Covenants” of this Agreement. Any copies of the Confidential Information made by you shall reproduce the proprietary markings and any other legends contained thereon.
(vi) Breach and Remedies. In the event that you have or acquire actual knowledge of any breach of the confidentiality of, or the misappropriation of, any Confidential Information received under this Agreement, you shall promptly give notice thereof to Company. You acknowledge that any breach of any of your obligations with respect to confidentiality or use of Confidential Information hereunder is likely to cause or threaten irreparable harm to Company. You therefore agree that in the event of such breach by you, Company shall be entitled to seek equitable relief to protect its interests, including but not limited to preliminary and permanent injunctive relief, without the necessity of proving any actual damages sustained by Company, and without the requirement of bond or security, as well as monetary damages. Moreover, any such award of relief to Company shall include recovery of all actual and reasonable costs associated with enforcement of this Agreement including, without limitation, attorneys’ fees and costs.
9. Covenants of the Company. The Company represents, warrants, and covenants that:
(a) No Conflict. To the best of Company’s knowledge, no consent of any other entity, person, firm or corporation (other than the Carriers) is required to enable Licensee to use the FAST DIAL NUMBER for purposes of the Licensee’s business in the DMA. The Company further covenants that, to the best of its knowledge, the use of the FAST DIAL NUMBER by Licensee in the DMA will not violate or infringe upon any trade name, copyright, other intellectual property rights or other rights of any third parties
(b) Authorization. This Agreement has been duly executed and delivered by the Company and is valid, legal and binding and enforceable.
10. Indemnification; Infringement.
(a) By Company. The Company agrees to indemnify, defend and hold harmless the Licensee and its officers, directors, managers, employees and agents against claims, demands, causes of action and judgments (including reasonable attorneys’ fees and court costs) brought by a third party alleging that the Licensee’s use of the FAST DIAL NUMBER as authorized under and in accordance with the terms of this Agreement infringes such third party’s trademark rights (an “Infringement Claim”), provided that (i) the Licensee gives the Company notice of the claim within fifteen (15) business days of being itself notified of the Infringement Claim; and (ii) permits the Company to undertake and conduct the defense of the Infringement Claim as to itself with attorneys of its own selection.
(b) By Licensee. The Licensee agrees to indemnify, defend and hold harmless the Company and its affiliates and their officers, directors, managers and agents against any and all claims, demands, causes of actions and judgments (including attorney’s fees and court costs) arising out of or related to the performance of its obligations under this Agreement.
(c) Infringement. The Licensee agrees to notify the Company of (i) any unauthorized use of the FAST DIAL NUMBER by third parties as soon as practical after discovery by the Licensee of such third party use; (ii) any legal action or claim alleging a violation of the FAST DIAL NUMBER as soon as practical after such legal action or claim is filed, threatened, or asserted against the Licensee; and (iii) any other act, matter or thing that has occurred or may occur in connection with this Agreement that may adversely affect the interests of Company in the FAST DIAL NUMBER.
(d) Proceedings by Company. The Company shall have the right and discretion to bring, prosecute, defend and/or settle any and all proceedings involving the FAST DIAL NUMBER as soon as practical after any issues germane to dispute have been brought to the attention of the Company. The Company shall bear all costs of any such proceedings and be the sole recipient of any damages or other relief obtained by the Company as a result of such proceedings.
The Licensee shall fully cooperate with the Company in bringing, prosecuting, defending and/or settling any such proceedings including, without limitation, by causing any of its employees to testify when requested by the Company and by making available to the Company any relevant books, records, papers, information, designs, samples, specimens and the like or by doing any act or thing reasonably requested by the Company. All costs and expenses incurred in association with the proceedings shall be borne by the Company.
(a) Events of Termination. This Agreement shall terminate by written notice from either party to the other, if the other party is (at the time notice of termination is given) in breach of any material obligation relating to this Agreement (including but not limited to a payment default), which default is incapable of cure or which, being capable of cure, has not been cured within thirty (30) days after receipt of prior written notice of such breach from the non-defaulting party, or within such additional cure period as the non-defaulting party may authorize in writing.
(b) Obligations Upon Termination. Commencing with the effective date of termination or expiration of this Agreement, neither party shall have any further rights, privileges, licenses or obligations hereunder except that such expiration or termination shall not relieve either party of any liability accrued prior to the effective date of termination.
(c) Revocation of Grant. Upon termination or expiration of this Agreement, the License contemplated in this Agreement FAST DIAL NUMBER shall be fully revoked and the Licensee agrees to promptly cease the use of the FAST DIAL NUMBER. In addition, the Licensee shall promptly and completely cease the use of any and all other trademarks, service marks or trade names similar to the FAST DIAL NUMBER, if any.
(d) Survival of Restrictive Covenants. The non-competition, non-solicitation, non-circumvention and confidentiality restrictions set forth in Sections 8 (d) and 8 (e) of this Agreement shall survive any termination or expiration of this Agreement and remain a binding obligation of the Licensee and its Affiliates.
(a) Notices. All notices or other communications required or permitted to be given pursuant to this Agreement shall be in writing and shall be made by: (i) certified mail, return receipt requested; (ii) Federal Express, Express Mail, or similar overnight delivery or courier service; or (iii) delivery (in person or by facsimile, e-mail or similar telecommunication transmission) to the party to whom it is to be given, to the address appearing on the signature page to this Agreement or to such other address as any party hereto may have designated by written notice forwarded to the other party in accordance with the provisions of this Section 12 (a).
(b) Assignability. The Licensee may not assign or sub-license any of its rights or obligations under this Agreement without the Company’s prior written consent, which consent may be withheld for any reason or no reason. The Company may assign this Agreement, including but not limited to the restrictive covenants set forth in Sections 8 (d) and 8 (e), without the consent of the Licensee, who specifically acknowledges that the Company may assign same covenants.
(c) Entire Agreement. This Agreement, and the other documents referenced herein, constitute the entire understanding of the parties hereto with respect to the subject matter hereof, and no amendment, modification or alteration of the terms hereof shall be binding unless the same be in writing, dated subsequent to the date hereof and duly approved and executed by each of the parties hereto or a duly authorized representative of same.
(d) Applicable Law. This Agreement, and the application or interpretation thereof, shall be governed exclusively by the laws of the State of Pennsylvania, notwithstanding any conflicts-of-law’s provisions. Venue for all purposes shall be the courts sited within the county of Philadelphia County, Pennsylvania. The parties hereby waive any and all defenses of inconvenient forum.
(e) Legal Fees and Costs. If a legal action is initiated by any party to this Agreement against another party, arising out of or relating to the alleged performance or non-performance of any right or obligation established in this Agreement, or any dispute concerning the same, any and all fees, costs and expenses reasonably incurred by the substantially prevailing party, or by its legal counsel in investigating, preparing for, prosecuting, defending against, or providing evidence, producing documents or taking any other action in respect of, shall be the sole and exclusive obligation of the non-prevailing party.
(f) Equitable Relief. The parties acknowledge that the failure to comply with the terms of this Agreement, in any instance, may result in immediate and irreparable damage to the aggrieved party with no adequate remedy at law. In the event of such a breach, the aggrieved party may seek equitable relief by way of temporary, preliminary or permanent injunction and such further relief as any court of competent jurisdiction may deem just and proper, in addition to, and without prejudice to, any other relief to which such party may be entitled.
(g) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(i) No Partnership or Franchisor-Franchisee Relationship. The parties do not intend that the relationship between them constitutes a legal partnership or franchise. In that connection, the Company is given broad discretion in how it uses the FAST DIAL NUMBER in its territory and the Company exercises no control over the delivery of the Licensee’s business services.
(j) Additional Named Insured. [intentionally omitted]
(k) Definitions. “Affiliate:” When used in this Agreement, the term Affiliate means any officer, director, shareholder or “key employee” of the Licensee as of the date of this Agreement and during the Term. Additionally, the term “Affiliate” means, as to any specified person, any other person that directly or indirectly controls, or is under common control with, or is controlled by, such specified person and, if such other person is an individual, any member of the immediate family of such individual. As used in this definition, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) shall mean possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract, or otherwise) and “immediate family” shall mean any parent, child, grandchild, spouse, or sibling.