DIGITAL KIOSK ADVERTISING SALES AGREMENT
1. Appointment; Exclusive Distributor.
A. Velogin Corporation., a Tennessee corporation (“Velogin”), places digital advertising on electronic kiosk sites, and performs ad management services for, digital kiosk advertising. The digital kiosk advertiser named above (the “Customer”) desires to purchase advertising space from Velogin and to engage Velogin to perform ad management services under the terms and conditions contained herein.
B. To avoid potential conflicts between advertising sales channels, Customer hereby appoints Velogin as its sole and exclusive worldwide distributor of advertising space on the digital kiosks listed above (collectively, the “kiosks) during the term of this Agreement
2. Velogin Services. During the term of this Agreement:
A. Velogin will use all commercially available efforts to assist Customer in the design and placement of Customer’s digital advertising in the above listed kiosk(s).
B. Velogin will maintain the operation of the kiosk(s) listed above during normal business hours throughout the length of this agreement.
C. During the term of this Agreement, Velogin shall provide to Customer with reasonably requested
kiosk monitoring services and other statistical information.
3. Obligations of Customer during the term of this Agreement:
A. Customer agrees to make available to Velgoin advertising material in a format agreed to by the parties for placement on the kiosk listed above.
B. Customer will provide Velogin with reasonable services and other assistance as are necessary to facilitate Velogin's performance of its obligations under this Agreement.
C. Customer represents and warrants to Velogin that Customer (i) owns and has the unrestricted right to communicate and publish the advertising material on the in connection therewith to use all service marks and trade names and in so doing is not acting in conflict with any patent, trademark, service mark, trade name, copyright, trade secret, license or other proprietary right with respect thereto, and (ii) Customer has not received any communication from any third party that the advertising material or the conduct Customer's business is in violation of any law, rule or regulation or in conflict with any patent, trademark, service mark, trade name, copyright, trade secret, license or other proprietary right with respect thereto.
E. Advertising Guidelines and Restrictions: Velogin agrees to accept advertisements from all advertisers, except those advertisers within the industries specified below.
Restricted Industries
Adult advertising; alcohol; tobacco, _______________, _________________, ______________.
4. Invoicing and Payment.
Customer agrees to pay Velogin the price specified on the Advertisement Order form. Payments shall be made in accordance with the terms and conditions set forth on the Advertisement Order form.
5. Confidentiality. Both Velogin and the Customer agree to keep confidential and shall not, without the prior written consent of the other, disclose in any manner whatsoever, in whole or in part, any of the terms of this Agreement or any information, whether written or oral, furnished by the other party, including all analyses, compilations, forecasts, plans, drawings, specifications, design, software, studies or other documents that contain or otherwise reflect such information or that are intended to remain confidential,
except as necessary for either party to enforce its rights under this Agreement, or pursuant to a subpoena or any legal process, or as otherwise may be required by applicable law.
6. Term and Termination.
The term of this Agreement shall continue for a four month period from date of signing; provided, however, that either party may terminate this Agreement for any reason or no reason at all upon thirty (30) days written notice to the other party.
7. Warranty Disclaimer; Limitation of Liability.
Velogin makes no warranties of any kind, whether express or implied, as to the subject matter of this Agreement, including any warranty of merchantability or fitness for a particular purpose. Velogin shall not be liable for the actions or omissions of Customer in connection with such Customer's utilizing any advertising space on the kiosks, nor for the content of any such Customer’s other advertising materials. Velogin shall not be liable for any unavailability or inoperability of the Internet, technical malfunction, computer error, corruption or loss of information. IN NO EVENT SHALL VELOGIN BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, IN NO EVENT WILL VELOGIN'S LIABILITY HEREUNDER EXCEED THE TOTAL REVENUES RECORDED ON THE BOOKS OF VELOGIN, NET OF PAYMENTS TO THE CUSTOMER.
Should Velogin be obstructed, accelerated, incur loss of efficiency in productivity or be delayed in the commencement, prosecution, or completion of the services, without fault on its part, by the act, failure to act, direction, order, neglect, delay, or default of Customer, Customer's agents or employees or any other entity or person employed at Customer's premises, or by changes in the services, or by reason of fire, lightning, earthquake, enemy action, act of God, or similar catastrophe, or by government restrictions in respect of materials or labor, or by a strike or lockout beyond Velogin’s reasonable control, then Velogin shall be entitled to an extension of time for a period equivalent to the actual time lost by reason of any or all of the causes aforesaid. Customer expressly agrees not to make, and hereby waives, any claim for damages, including those resulting from increased supervision, labor or material costs, on account of any delay, obstruction, or hindrance for any cause whatsoever, including, but not limited to, the aforesaid causes, and Customer expressly agrees that its sole right and remedy therefore shall be an extension of time.
8. Indemnification.
A. Customer shall indemnify, defend and hold harmless Velogin, Velogin’s subsidiaries and affiliates, and the respective partners, agents, officers, directors and employees of each of the foregoing, from and against any loss, cost, expense, claim, injury or damage (including, without limitation, reasonable attorneys' fees and expenses), whether incurred due to third party claims or otherwise, arising or resulting from or caused by (i) any negligent act or omission or willful misconduct of Customer or any consultant or engineer
retained by Customer, or any of its or their partners, directors, officers, employees, or agents; (ii) any breach or default by Customer in the performance of any of its obligations under this Agreement; (iii) any breach of any representation, warranty, covenant or agreement by Customer; or (iv) any transactions with Users, including without limitation any purchases by such Users of products or services sold on the Website.
B. Subject to the provisions of Section 8 above, Velogin shall indemnify, defend and hold harmless Customer from and against any loss, cost, expense, claim, injury or damage (including, without limitation, reasonable attorneys’ fees and expenses), whether incurred due to third party claims or otherwise, arising or resulting from or caused by (i) any negligent act or omission or willful misconduct of Velogin; (ii) any material breach or default by Velogin in the performance of any of its obligations under this Agreement; or (iii) any material breach of any representation, warranty, covenant or agreement by Velogin.
9. Expenses. Each party shall be solely responsible for all of its expenses incurred in connection with the performance of its duties hereunder, including telephone, fax, travel and client entertainment.
10. Assignment. Neither party hereto may assign this Agreement, or any of its rights and obligations hereunder, in whole or in part, without the consent of the other party, and any such attempted assignment shall be void; provided, however, that, upon written notice to the other party, a party hereto may (a) grant to a third party a security interest in this Agreement, or any of such party's rights and obligations hereunder, without the consent of the other party, or (b) assign this Agreement, or any of such party's rights and obligations hereunder, to a subsidiary or affiliated Customer of such party without the consent of the other party or (c) assign this Agreement, or any of such party's rights and obligations hereunder, to a third party in connection with the sale of all or substantially all of the assets or capital stock of such party without the consent of the other party.
11. Notices. Any notices or other communications required or permitted to be given or delivered under this Agreement shall be in writing (unless otherwise specifically provided herein) and shall be sufficiently given if delivered personally, with a signed receipt therefore, or by reputable overnight delivery service, or mailed by prepaid certified mail, return receipt requested, or telefaxed with written confirmation, to the address of the parties set forth on the front page of this Agreement. Notices shall be deemed to have been given on the date delivered, if delivered, or on the second business day after mailing, if mailed. Either party, upon notice to the other party given in accordance with this Section 13 may modify its address for notices set forth in this Section 12.
12. Cumulative Remedies; No Waiver. The remedies of Velogin provided for in this Agreement are cumulative and shall be in addition, to, and not in limitation of, the rights and remedies which may be available to VELOGIN at law or in equity. Notwithstanding any course of dealing or the failure of either party strictly to enforce any term, right or condition of this Agreement, no term, right or condition hereof shall be deemed waived and no breach excused, unless such waiver and consent shall be in writing and signed by the party claimed to have waived or consented. No consent by any party to, or waiver of, a breach by the other party shall constitute a consent to, waiver of, or excuse for any other different or subsequent breach.
13. Successors and Assigns. Subject to Section 11, this Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective legal representatives, and permitted successors and assigns.
14. Entire Agreement. This Agreement, together with the exhibits attached hereto, represents the entire and integrated agreement between Velogin and Customer and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by a written instrument signed by both Velogin and Customer.
15. Applicable Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of Tennessee, without regard to choice of law principles. Each party hereby submits to the exclusive jurisdiction of the United States District Court for the Western District of Tennessee and of any Tennessee state court sitting in the City of Memphis, Tennessee. for purposes of all legal proceedings arising out of or relating to this Agreement and the subject matter hereof. Each party irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in any such court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.
16. Legal Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, costs and expenses, in addition to any other relief to which such party may be entitled.
17. Severability. If any provision of this Agreement or the application thereof to any person or situation to any extent shall be held invalid or unenforceable, the remainder of this Agreement, and the application of such provision to persons or situations other than those to which it shall have been held invalid or unenforceable, shall not be affected thereby, but shall continue to be valid and enforceable to the fullest extent permitted by law.
18. Waiver of Jury Trial. EACH PARTY HERETO WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING WITHOUT LIMITATION CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION 20 HAS BEEN DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS SHALL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER REPRESENTS AND WARRANTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, SUPPLEMENTS OR MODIFICATIONS TO (OR ASSIGNMENTS OF) THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL (WITHOUT A JURY) BY THE COURT.
19. Relationship. The relationship between Velogin and Customer shall be that of seller and buyer, respectively. Nothing in this Agreement shall be deemed to create or construed as creating a joint venture or partnership between the parties. Neither party is, by virtue of this Agreement or otherwise, to be considered the agent or representative or the other party. Neither party shall have the right to bind the other contractually in any respect whatsoever.
20. Proprietary Rights. Customer acknowledges that Velogin shall retain all proprietary rights in the kiosk technology (including all software, source codes, modifications, updates and enhancements thereof), the name “Velogin” or any derivatives thereof, and any other trademarks and logos which are owned or controlled by Velogin and made available to Customer under this Agreement.