Services Agreement
This Services Agreement (this “Agreement”) is entered into by and between Pure Wireless, LLC, a , a Delaware limited liability company (“Pure Wireless”), and the customer (“Customer”), who is designated on the applicable order form executed between the parties (“Order Form”), and this Agreement is effective as of the date provided on the Order Form (the “Effective Date”).
1. Services. Pure Wireless shall provide to Customer the services (the “Services”) identified on the Order Form. Pure Wireless shall provide the Services in accordance with the terms and subject to the conditions set forth in this Agreement.
2. Fees and Expenses. For the Services to be performed hereunder, including but not limited to one-time services, annual services, and annual subscriptions, Customer shall pay to Pure Wireless the fees and expenses set forth on the Order Form (the “Fees”) within fifteen (15) days of the date of Pure Wireless’ invoice. Upon execution of the Order Form, Customer shall be responsible for all Fees hereunder. Customer acknowledges that Fees may be subject to change, and may increase at each Renewal Term. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder. Except for invoiced payments that the Customer has successfully disputed, all late payments shall bear interest at the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall also reimburse Pure Wireless for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Pure Wireless does not waive by the exercise of any rights hereunder), Pure Wireless shall be entitled to suspend, or terminate, the provision of any Services if Customer fails to pay any Fees, costs, or expenses when due hereunder.
3. Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Pure Wireless in the course of performing the Services (collectively, the “Deliverables”) shall be owned exclusively by Pure Wireless. Pure Wireless hereby grants Customer a limited license to use relevant Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, non-transferable, non-sublicensable, fully paid-up, royalty-free, and revocable basis, solely to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.
4. Provided Materials. Customer acknowledges that in order for Pure Wireless to perform the Services, Customer will necessarily provide certain data, materials, and information, including without limitation building schematics, floor plans, and similar, to Pure Wireless (collectively, the “Provided Materials”). Customer hereby grants to Pure Wireless a perpetual, irrevocable, royalty-free, fully-paid-up, assignable, transferrable, sublicensable, right to use the Provided Materials for any purpose. For clarity, Customer acknowledges and agrees that Pure Wireless may use the Provided Materials in any manner whatsoever, for any purpose (commercial or non-commercial) that Pure Wireless chooses, in its sole and absolute discretion. As between Pure Wireless and Customer, Customer is solely responsible for the content, quality, and accuracy of the Provided Materials, for securing any necessary approvals for Pure Wireless’ use of the Provided Materials as allowed for herein, and for ensuring that the Provided Materials, as made available by Customer, comply with applicable laws and regulations. Furthermore, Customer represents and warrants that Customer has all rights necessary to transmit Provided Materials to Pure Wireless.
5. Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement's express provisions, will continue in effect for as long as specified in the Order Form (the “Initial Term”). This Agreement will automatically renew for successive annual terms, unless earlier terminated pursuant to this Agreement’s express provisions, or either party gives the other a written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, understood as the “Term”).
6. Termination. Either party may terminate this Agreement, effective upon written notice to the other party (the “Defaulting Party”), if the Defaulting Party: (a) materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach; (b) becomes insolvent or admits its inability to pay its debts generally as they become due; (c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within forty-five (45) days after filing; (d) is dissolved or liquidated or takes any corporate action for such purpose; (e) makes a general assignment for the benefit of creditors; or (f) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. Notwithstanding anything to the contrary, Pure Wireless may terminate this Agreement before the expiration date of the Term on written notice if Customer fails to pay any amount of Fees, costs, or expenses, when due hereunder. Under no circumstance(s) shall Customer be relieved of its obligation to make full payment for Fees (including, by way of example, a termination for cause by Pure Wireless, under which Customer will remain obligated to make full payment for Fees).
7. Independent Contractor. The details of the method and manner for performance of the Services by Pure Wireless shall be under its own control, Customer being interested only in the results thereof. Pure Wireless shall be solely responsible for supervising, controlling and directing the details and manner of the completion of the Services. Nothing in this Agreement shall give Customer the right to instruct, supervise, control, or direct the details and manner of the completion of the Services. Pure Wireless is for all purposes hereunder an independent contractor and in no event will Pure Wireless be considered an agent or employee of Customer or any of its subsidiaries or affiliates for any purpose.
8. Indemnification. Customer shall indemnify, defend and hold harmless Pure Wireless and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Pure Wireless Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees, the costs of enforcing any right to indemnification under this Agreement, and/or the cost of pursuing any insurance providers, incurred by Indemnified Party, relating to, arising out of, or resulting from any claim of a third party, or any claim by Pure Wireless, arising out of or occurring in connection with: (a) any materials or information provided by Customer to Pure Wireless, including but not limited to Provided Materials; (b) the Services provided hereunder; (c) Customer’s negligence or willful misconduct; or (d) Customer’s breach of any representation, warranty, or obligation under this Agreement. Neither Party shall enter into any settlement without the other Party’s prior written consent. Pure Wireless shall indemnify, defend and hold harmless the Customer and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Customer Indemnified Parties”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees, the costs of enforcing any right to indemnification under this Agreement, and/or the cost of pursuing any insurance providers, incurred by the Customer Indemnified Parties, relating to, arising out of, or resulting from any claim of a third party, or any claim by the Customer, arising out of or occurring in connection with: (a) Pure Wireless’s negligence or willful misconduct; (b) the Services provided hereunder; (unless expressly excluded hereunder); or (c) breach by Pure Wireless of any representation, warranty, or obligation under this Agreement. The Parties shall cooperate with each other in the prosecution or defense of any litigation, administrative actions or other matters arising out of this Paragraph.
9. No Warranty and No Guarantees. THE SERVICES, DELIVERABLES, AND PERFORMANCE FROM PURE WIRELESS ARE ALL OFFERED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. PURE WIRELESS, TOGETHER WITH ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, AND REPRESENTATIVES, HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE WARRANTIES OF TITLE, MERCHANTABILITY, AND NONINFRINGEMENT OF THIRD PARTIES’ RIGHTS, ALONG WITH THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. PURE WIRELESS DISCLAIMS ALL WARRANTIES WHETHER ARISING OUT OF LAW, STATUTE, COURSE OF DEALING, TRADE USAGE, OR ANY OTHER RELATIONSHIP. PURE WIRELESS MAKES NO WARRANTIES WITH REGARD TO THE ACCURACY, RELIABILITY, COMPLETENESS, QUALITY, FUNCTIONALITY, TIMELINESS, SPEED, OR ACCESSIBILITY OF THE SERVICES, DELIVERABLES, AND ITS PERFORMANCE. PURE WIRELESS DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN CONTENT, AND ANY RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM NEGLIGENCE. FOR CLARITY, AND IN ADDITION TO THE FOREGOING, PURE WIRELESS MAKES NO WARRANTIES OF ANY KIND WITH REGARD TO ATTAINING ANY PARTICULAR RESULT OR OUTCOME FOR CUSTOMER. CUSTOMER AGREES THAT THERE ARE NO GUARANTEES AS TO ANY SPECIFIC OUTCOME OR RESULT, INCLUDING BUT NOT LIMITED TO ANY GUARANTEES REGARDING THE EFFECTIVENESS OF THE SERVICES AND DELIVERABLES IN ASSISTING WITH OBTAINING PROTECTION FROM GOVERNMENT, LAW ENFORCEMENT, FIRE FIGHTERS, FIRST RESPONDERS, AND OTHER HEALTH AND SAFETY PROVIDERS. PURE WIRELESS DOES NOT WARRANT THAT THE SERVICES AND DELIVERABLES WILL BE OPERATIONAL, SECURE, ERROR-FREE, OR VIRUS FREE. TO THE EXTENT ANY JURISDICTION DOES NOT PERMIT THE DISCLAIMERS OF WARRANTIES AS DESCRIBED HEREIN, PURE WIRELESS DISCLAIMS WARRANTIES TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
10. Limitation of Liability. IN NO EVENT SHALL PURE WIRELESS BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT PURE WIRELESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL PURE WIRELESS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT PAID TO PURE WIRELESS PURSUANT TO AN ORDER FORM IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11. Force Majeure. Pure Wireless shall not be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond Pure Wireless’ control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the Effective Date of this Agreement; (f) national or regional emergency;
(g) pandemics, outbreaks, quarantines, or related; (h) strikes, labor stoppages or slowdowns, or other industrial disturbances; (i) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (j) other events beyond the control of Pure Wireless.
12. Miscellaneous.
12.1 Each party shall deliver all communications in writing either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and addressed to the other party at the addresses set forth below (or to such other address that the receiving party may designate from time to time in accordance with this Section):
Pure Wireless
Pure Wireless, LLC
999 Vanderbilt Beach Rd., Suite 200
Naples, FL 34108
Attn: Mr. Elliott H. Singer
Customer
Information set forth on the Order Form
12.2 This Agreement and all matters arising out of or relating to this Agreement, including tort and statutory claims, are governed by, and construed in accordance with, the laws of Florida, (including its statutes of limitations), without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction. Either party may institute any legal suit, action, or proceeding arising out of, or relating to, this Agreement in the federal or state courts in each case located in Collier County, Florida. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(A) CONSENTS AND SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE AFOREMENTIONED COURTS; (B) WAIVES ANY OBJECTION TO THAT CHOICE OF FORUM BASED ON VENUE OR TO THE EFFECT THAT THE FORUM IS NOT CONVENIENT; (C) WAIVES ANY RIGHT TO TRIAL BY JURY; AND (D) WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT, OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY FLORIDA LAW.
12.3 This Agreement contains the entire understanding of the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous written or oral understandings, agreements, representations, and warranties with respect to such subject matter.
12.4 The invalidity, illegality, or unenforceability of any provision herein does not affect any other provision herein or the validity, legality, or enforceability of such provision in any other jurisdiction.
12.5 The parties may not amend this Agreement except by written instrument signed by the parties.
12.6 No waiver of any right, remedy, power, or privilege under this Agreement (“Right(s)”) is effective unless contained in a writing signed by the party charged with such waiver. No failure to exercise, or delay in exercising, any Right operates as a waiver thereof. No single or partial exercise of any Right precludes any other or further exercise thereof or the exercise of any other Right. The Rights under this Agreement are cumulative and are in addition to any other rights and remedies available at law or in equity or otherwise.
12.7 Customer may not directly or indirectly assign, transfer, or delegate any of or all of its rights or obligations under this Agreement, voluntarily or involuntarily, including by change of control, merger (whether or not such party is the surviving entity), operation of law, or any other manner, without the prior written consent of the other party. Any purported assignment or delegation by Customer in violation of this Section shall be null and void.
12.8 Pure Wireless may subcontract the Services, or any portion of the Services, in its sole and absolute discretion.
12.9 This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. Except for the parties, their successors and permitted assigns, there are no third party beneficiaries under this Agreement.
12.10 Sections 2, 3, 4, 6, 8, 9, 10, 11, and 12 of this Agreement will survive such expiration or termination for the period specified therein.
12.11 This Agreement may be executed in counterparts.