CLAIM RESOLUTION AGREEMENT
THIS CLAIM RESOLUTION AGREEMENT (this “Agreement”) is made this ____ day of ____________, 20___, by and between ______________________________________ (“Consultant”), having a website address at www.mycustomeradvocate.com and an e-mail address at email@example.com and the client identified on the signature page to this Agreement (“Client”).
Client wishes to engage the services of Consultant to assist Client in settling a dispute or grievance that Client has concerning a product or service as such claim is more fully described on the signature page to this Agreement (the “Claim”).
The parties intend for the terms and conditions set forth below to govern their business relationship as follows:
1. SERVICES; CONSULTANT’S DISCRETION. Client wishes to engage the services of Consultant, and Consultant wishes to accept such engagement, to use commercially reasonable efforts to settle the Claim. Client agrees that in pursuing a settlement of the Claim, Consultant shall be permitted to pursue and accept any and all settlement offers that Consultant determines to be reasonable, in Consultant’s sole and absolute discretion and Consultant shall be permitted to deliver the power of attorney executed by the Client in the form attached hereto as Exhibit A and/or the direction letter executed by the Client in the form attached hereto in Exhibit B to the party with whom Consultant is negotiating a settlement in furtherance of the foregoing. In addition, in connection with negotiating such a settlement, Consultant shall be permitted to obligate Client to execute and deliver a full release in favor of the party with whom such settlement has been negotiated and to refrain from bringing any further action or claim against such party at any time with respect to the Claim and, in furtherance thereof, Consultant shall be permitted to deliver the release contained in the direction letter executed by the Client in the form attached hereto in Exhibit B to the party with whom Consultant is negotiating a settlement. Consultant agrees to perform the foregoing services in a timely manner and to use its professional skill and reasonable judgment in rendering the services. The parties acknowledge that Brian Steinberg will be the primary person providing the services to Client on behalf of Consultant, however, Consultant may also perform the services through those of its employees and/or independent contractors that Consultant may from time to time designate in Consultant’s discretion.
2. ASSIGNMENT OF CLAIM AND OPTION TO PURCHASE SETTLEMENT.
(a) Assignment of Claim. In exchange for Consultant’s agreement to render the services described in Section 1 above, Client hereby assigns and transfers all of Client’s right, title and interest
(b) Assignment of Settlement. If the Claim is not assignable to Consultant, Client agrees that Consultant shall be permitted to settle the Claim on Client’s behalf and to receive the total amount of cash or other thing of value (e.g., store credit, product or service) that Consultant negotiates in connection with the settlement of the Claim (the “Settlement”). In exchange for Consultant’s agreement to render the services described in Section 1 above, Client hereby assigns and transfers all of Client’s right, title and interest in and to the Settlement to Consultant.
(c) Re-Purchase Option. Promptly upon the settlement of the Claim, Consultant shall notify Client in writing of the amount and nature of the Settlement and the approximate date (or dates) when the Settlement will be paid as well as any conditions to receiving the Settlement. Client shall have a period of 10 – business days starting on the first business day following the date that Consultant notifies Client of the Settlement to elect to purchase the Settlement (which shall be subject to all applicable conditions to receiving the Settlement) from Consultant for a purchase price equal to fifteen percent (15%) of the value of the Settlement a determined under Section 2(c) below. If Client elects to purchase the Settlement, Client shall pay the purchase price therefor in immediately available U.S. funds as stated in an invoice prepared by the Consultant by check, credit card or bank transfer to the account designated by Consultant no later than 5-business days following receipt of such invoice and Consultant will deliver the Settlement to Client in accordance with the Client’s direction. In the event that any shipping or other fees are incurred by Consultant in connection with delivering the Settlement to Client, Client shall be responsible for paying or reimbursing such fees. If available U.S. funds as stated in an invoice prepared by the Consultant by check, credit card or bank transfer to the account designated by Consultant no later than 5-business days following receipt of such invoice and Consultant will deliver the Settlement to Client in accordance with the Client’s direction. In the event that any shipping or other fees are incurred by Consultant in connection with delivering the Settlement to Client, Client shall be responsible for paying or reimbursing such fees. If Client elects not to purchase the Settlement or otherwise fails to respond to Consultant within the 10-business day period specified above or fails to pay the purchase price to Consultant in accordance with an invoice delivered by Consultant, Client’s purchase option shall expire and Consultant shall be permitted to retain the full Settlement free and clear of all liens and claims of Client. Client elects not to purchase the Settlement or otherwise fails to respond to Consultant within the 10-business day period specified above or fails to pay the purchase price to Consultant in accordance with an invoice delivered by Consultant, Client’s purchase option shall expire and Consultant shall be permitted to retain the full Settlement free and clear of all liens and claims of Client.
(d) Value of Settlement. In calculating the value of a Settlement for purposes of determining the purchase price therefor under Section 2(c) above, cash, reimbursements and store credit shall be valued at the face value of such Settlement and products and services shall be valued at the price at which such products and services are available for purchase from the issuing party as of the date that the Settlement is paid without taking into account any discount or mark-down from the retail price that the vendor is then offering.
3. FEES AND EXPENSES.
(a) Fee. In exchange for the Consultant’s agreement to render the services, Client (i) agrees to pay Consultant a fee of $29.95 within 2-business days of the execution of this Agreement and (ii) hereby assigns the Claim and Settlement to Consultant in accordance with Section 2 above, subject to Client’s re-purchase option. In the event that notwithstanding the assignment of the Claim and the Settlement pursuant to Section 2 above, the Settlement is paid to Client or is issued to Client in Client’s name and such Settlement is not transferable, then Client shall pay to Consultant a fee equal to fifteen percent (15%) of the value of the Settlement, with a minimum payment of $25, within 5-business days of the payment or issuance of such Settlement to Client in lieu of the fee described in Section 3(a)(ii) above.
(b) Reimbursement of Expenses. Consultant is entitled to reimbursement for all reasonable expenses incurred in connection with the delivering the Settlement to Client in the event that Client elects to purchase the Settlement as described in Section 2 above.
4. TERM; EFFECT OF TERMINATION OR EXPIRATION. This Agreement shall commence on the date hereof and shall continue until the earliest of (i) the date that Client has purchased the Settlement or Client’s purchase option has expired with respect to the Settlement in accordance with Section 2 above; (ii) one hundred eighty (180) days following the date hereof, which may be extended at Consultant’s option by written notice to Client for an additional thirty (30) calendar days if Consultant is in active negotiation concerning the Settlement at the time of the expiration of the initial 180-days of this Agreement; or (iii) the date that Consultant has delivered written notice to Client that it wishes to terminate this Agreement (the “Term”). In the event that the Term ends prior to Consultant having negotiated a Settlement, Consultant agrees to assign and transfer all of Consultant’s right title and interest in and to the Claim to Client within 5-business days of Client’s written request by executing an instrument of assignment containing the following statement: “Consultant hereby assigns and transfers all of Consultant’s right, title and interest in an to the [DESCRIBE CLAIM] to Client effective as of the date hereof.” Consultant shall not be required to make any representations or warranties to Client in delivering such assignment, nor shall Consultant be required to provide Client with any correspondence, records or other documents pertaining to Consultant’s efforts in negotiating a Settlement during the Term.
5. WAIVERS; LIMITATION OF LIABILITY.
(a) Damage Waiver - IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY TYPE OF INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, LOSS OF USE OR LOSS OF RIGHTS OR SERVICES IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF, OR ANY FAILURE OR DELAY IN PERFORMING THIS AGREEMENT, HOWEVER CAUSED, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) Limitations of Liability – NOTWITHSTANDING ANY PROVISION SET FORTH HEREIN TO THE CONTRARY, CONSULTANT’S ENTIRE LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT WHETHER ARISING UNDER A BREACH OF CONTRACT CLAIM OR A TORT SHALL BE LIMITED TO MONETARY DAMAGES NOT TO EXCEED $29.95.
6. FURTHER ASSURANCES. Client agrees to cooperate with Consultant in pursuing a Settlement and shall execute such further documents, releases, powers of attorney, assignments and direction letters as may be reasonably requested by Consultant from time to time in furtherance of performing this Agreement and negotiating a Settlement. If Client receives any Settlement or offer of settlement with respect to the Claim at any time during the Term, Client shall promptly notify Consultant and shall promptly deliver any Settlement received by Client to Consultant or the purchase price therefor, which shall be paid in accordance with Section 2 above as if the Settlement had been initially received by Consultant. Client further agrees to refrain from directly or indirectly negotiating or attempting to settle the Claim during the Term.
7. NOTICES. All notices required or permitted under this Agreement must be in writing and must be given by directing the notice to the address or e-mail address for the receiving party set forth in this Agreement or at such other address as the receiving party may specify in writing under this procedure. All notices to Consultant must be given by e-mail unless otherwise directed by Consultant. All notices to Client must be given (i) by e-mail, (ii) by prepaid first class mail, or (iii) by prepaid recognized next business day delivery service. Notices will be effective upon delivery or at the later date stated in the notice, if any. Notices sent by prepaid recognized next business day delivery service shall be deemed delivered on the business day following deposit with the delivery service. Notices sent by first class mail delivery service shall be deemed delivered on the fifth (5th) day following deposit with the mail. Notices sent by e-mail shall be deemed delivered on the earlier of the day that the recipient opens the e-mail as confirmed by a read-receipt received by the sender if the e-mail is opened prior to 5 pm eastern time or on the next calendar day following the day that the e-mail is sent, provided, that for e-mail notification, no message indicating that the e-mail has been undeliverable is received by the sending party.
8. MISCELLANEOUS. This Agreement shall be governed by, construed and enforced in accordance with the laws of the Commonwealth of Massachusetts without giving effect to any principals of conflicts of laws. This Agreement may not be amended in any respect whatsoever, nor may any provisions hereof be waived by any party, except by further written agreement fully executed by each of the parties. This Agreement shall be binding upon and inure to the benefit of the parties. Neither Client nor Consultant may assign its or his rights or obligations arising hereunder. Any attempted assignment of this Agreement shall be void. This Agreement and the Exhibits attached hereto contain the entire understanding of the parties with respect to the matters contained herein. There are no oral understandings, terms or conditions, and no party has relied upon any representation, express or implied, not contained in such agreements. This Agreement may be executed via electronic mail in one or more copies, each of which shall be deemed an original. This Agreement may be executed by facsimile signature and each party may fully rely upon facsimile execution; this agreement shall be fully enforceable against a party, which has executed the agreement by facsimile.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on the date first above written.
CONSULTANT: [INSERT NAME OF LLC]
_______________________________________________________________________________________ Brian Steinberg, CEO
Name (print): _____________________________________________________________________________________________________________________________________________________________
Ph: ______________________________________________________________________________________ Fax: _________________________________________________________________
Description of Claim: ____________________________________________________________________________________________________________________________________________