.png)
(revised 07.09.2024)
These Terms and Conditions are made part of the TOWR™ AD AFFILIATE MARKETING AGREEMENT (collectively, the “Agreement”) by and between Baumy Media, LLC (“Company”), and the Affiliate, (each a “Party” and collectively, the “Parties”). This Agreement will not take effect unless and until Company’s authorized representative countersigns the Agreement.
WHEREAS, the Company is in the business of placing its TOWR™ kiosks or similar digital signage at business establishments, which can be used to display advertising content, collect data, and perform other functions, and provides services related to the kiosks to Customers;
WHEREAS, the Affiliate has applied for affiliate status with the Company with the objectives of helping the Company market its TOWR™ kiosks and digital signage and services to potential advertisers and Company has approved Affiliate for its Affiliate Program; and
WHEREAS, the Company and the Affiliate desire to enter into this Agreement to define the irrespective rights and obligations as to their affiliate relationship;
NOW, THEREFORE, in consideration of the covenants and agreements contained herein, the parties hereto agree as follows:
1.0 Definitions
“Affiliate Program” means our ad marketing affiliate program as described in this Agreement.
“Affiliate Lead” means a customer prospect who clicks on the Affiliate Link that we have made available to you via an Affiliate Tool or otherwise, or other customer prospect who is a potential Customer solely through Affiliate’s marketing, promotion or other efforts.
“Affiliate Policies” means the policies applicable to affiliates which we may make available to you from time to time, which may be updated anytime by providing written notice to you, including via a URL link to updates posted online.
"Agreement" means this TOWR™ Ad Affiliate Marketing Agreement.
"Ad Revenue” is defined as funds collected from paid advertisements, less any refunds, payment processing fees, sales commissions paid to advertising agencies or other sales representatives.
“Commission” means the amount earned by Affiliate, pursuant to the ‘Commissions’ section of this Agreement.
“Customer” means the advertiser that purchases advertising space on the TOWR™ Products after being an Affiliate Lead.
"Customer Data" means all information that Customer displays or collects via the TOWR™ Products and all materials that Customer provides or posts, uploads, inputs or submits for public display through the TOWR™ Products.
“Program Policies” means all the rules, policies and guidelines applicable to the Affiliate Program, which the Company may update and amend from time to time by giving reasonable written notice to Affiliate, which may include a URL where such updates are posted online.
"TOWR™ Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into our TOWR™ Products and related services.
“TOWR™ Products” means the TOWR™ advertising products or similar digital signage/kiosks ystem advertising products.
“TOWR™ Advertising Agreement” means a contract between Company and a Customer, where by Company provides advertising space for TOWR™ Products in exchange for payment.
"We", "us", “our”, and “Baumy Media” means Baumy Media, LLC.
“You", “your” and “Affiliate” means the party, other than Baumy Media, entering intothis Agreement and participating in the Affiliate Program.
2.0 Scope and Term. For the duration of this Agreement, Company and Affiliate’s respective rights and obligations with respect to any TOWR™ Products sold by or though the exclusive efforts of Affiliate shall be governed by this Agreement. This Agreement may beterminated at will by either Party by providing written notice to the other Party. Either Affiliate or Company may terminate the affiliate relationship between them at any time, by providing written notice to the other Party. This Agreement shall automatically terminate if Affiliate’s affiliate status with Company is terminated.
3.0 Affiliate Marketing Program.
3.1 Affiliate is hereby authorized to market Company’s TOWR™ Products and to promote same to customer prospects. Affiliate shall, at all times, accurately and honestly represent Company’s products, services, pricing and other material terms when interacting with Customer prospects.
3.2 Affiliate will earn a Commission when an Affiliate Lead becomes a Customer substantially through the exclusive efforts of Affiliate.
3.3 Affiliate is subject at all times to the Affiliate Policies and Program Policies, as may be amended from time to time, at Company’s sole discretion. Company may give Affiliate notice of any modifications or amendments to the Affiliate Policies or Program Policies through any reasonable means of communication, in Company’s discretion.
3.4 The Affiliate’s services for which a Commission may be earned are deemed complete for a given Customer, and Affiliate’s right to compensation pursuant to this Agreement accrues, when (a)the TOWR™ Advertising Agreement has been executed between Company and a Customer; and (b) the TOWR™ Products have been successfully placed on the TOWRs or other digital signage.
3.5 The Company shall have the exclusive and unilateral right and discretion, for any or no cause or reason, to accept or reject the terms of any proposed TOWR™ Advertising Agreement obtained by the Affiliate.
3.6 It is Affiliate’s responsibility to ensure all TOWR™ Advertising Agreements covered by this Agreement are readily identifiable by Company. Affiliate will forward supporting documentation to the Company, such as email correspondences, upon receipt, that may help in identifying such Customers.
4.0 Affiliate Representations and Warranties. For the duration of this Agreement, the Affiliate makes the following representations and warranties:
4.1 That Affiliate is fully authorized and empowered to enter into this Agreement, and that Affiliate’s performance of the obligations under this Agreement will not violate any agreement between the Affiliate and any other person, firm or organization orany law or governmental regulation.
4.2 That Affiliatewill not violate or infringe the rights, including but not limited to intellectualproperty rights such as patent, copyright or trademark, of any third party inthe performance of any actions pursuant to this Agreement.
4.3 That Affiliatewill not violate any applicable federal, state or local law, regulation orordinance in the course of Affiliate’s performance under this Agreement.
4.4 That Affiliateunderstands that this Agreement is not an employment contract, that the Affiliateis not in any way an employee of the Company, nor is the Company an employer ofthe Affiliate, and that the Agreement may be terminated with or without cause,with or without notice, by either at any time and for any reason that is notviolative of any applicable federal, state or local law, regulation orordinance.
4.5 That Affiliate will bear all expenses incurred in the performance of this Agreement, except for expenses that the Company expressly agrees to cover in writing.
4.6 That Affiliatewill diligently monitor communications, including phone and email at leastdaily, or more often as circumstances may warrant, and will immediately adviseCompany of any changes to Affiliate’s physical address, mailing address, phonenumber or email address.
5.0 Company Representations and Warranties. Beginning on theEffective Date and remaining in effect for the duration of this Agreement, theCompany makes the following representations and warranties.
5.1 That it is fullyauthorized and empowered to enter into this Agreement, and that its performanceof the obligations under this Agreement will not violate any agreement betweenthe Company and any other person, firm or organization or any law orgovernmental regulation.
5.2 That it is in fullcompliance with any and all laws and/or statutes applicable to the servicesdescribed hereunder.
6.0 Commissions.
6.1 Affiliate’s only compensation earned pursuant to this Agreement shall be as follows:
6.1.1 A Commission, as specified in theaccompanying Affiliate Marketing Agreement form, will be calculated as apercentage of the Ad Revenue derived from each executed TOWR™ Advertising Agreement. The specific percentage of the commission will be detailed in the AffiliateMarketing Agreement form.
6.2 Notwithstandinganything in this Agreement to the contrary, Affiliate shall not be entitled tocompensation with respect to any TOWR™ Advertising Agreement unless the TOWR™Products have been placed on the TOWRs and are operating.
6.3 All compensationis calculated per calendar month. If compensation is earned, Affiliate will bepaid within thirty (30) days of the end of each calculation period. If Company or Customer terminates a TOWR™ Advertising Agreement for any reason before orafter starting, Company will no longer be required to pay any compensation to Affiliaterelated to that TOWR™ Advertising Agreement.
6.4 The Affiliate, notthe Company, shall be responsible for federal, state and local taxes derivedfrom the Affiliate's net income or for the withholding and/or payment of anyfederal, state and local income and other payroll taxes, workers' compensation,disability benefits or other legal requirements applicable to the Affiliate.
6.5 The Company and Affiliaterecognize and understand that, in the performance of this Agreement, Affiliateand/or its affiliates are likely to market Company’s services to Company’s existingcustomers and leads, as well as future customer and leads generatedindependently of Affiliate’s efforts. Affiliate and Company agree to operate ingood faith to identify all TOWR™ Advertising Agreements for which Affiliate isentitled to compensation.
6.6 In the event ofany payment disputes, Affiliate shall notify Company within 60 days after Affiliateknew or, in the exercise of due diligence, should have known of any paymentdiscrepancy related to a particular TOWR™ Advertising Agreement. If Company’sinvestigation confirms Affiliate’s claim, the Company will pay Affiliate theamount due. In no event shall Affiliate be entitled to back payments thataccrued more than six (6) months prior to Affiliate’s notice to Companyregarding an alleged discrepancy. If Affiliate fails to give timely notice ofdiscrepancies pursuant to this paragraph, Affiliate shall not be entitled toback payments that accrued prior to the date of actual notice to Company. Thelimits on Affiliate’s recovery of disputed back pay do not apply to compensationwithheld by the Company fraudulently or in bad faith.
6.7 Upon terminationof this Agreement, Affiliate shall continue to receive Commissions related to TOWR™Advertising Agreements procured during the term of this Agreement until the endof the initial terms of those agreements. Notwithstanding the foregoing,Affiliate shall forfeit the right to receive all future Commissions ifAffiliate breaches any provision in this Agreement related to confidentialityand non-disclosure, non-interference, non-solicitation, non-competition ornon-disparagement. This Section 6.7 shall survive termination of the Agreement.
7.0 Affiliate Policies
7.1 Independent Affiliate Status.
7.1.1 The Affiliate is an independent affiliate of Company. Nothing contained in this Agreement shall be construed to create the relationship of employer and employee, principal and agent, partnership or joint venture, or any other fiduciary relationship.
7.1.2 The Affiliate shall have no authority to bind the Company in any manner. Affiliate shall not represent to Customer prospects or other third parties that Affiliate has authority to bind the Company or make any other inaccurate statements regarding the relationship between the Affiliate and the Company.
7.1.3 The Affiliate shall not be entitled to worker's compensation, retirement, insurance or other benefits afforded to employees ofthe Company.
7.1.4 The Affiliate shall determine its own hours. Affiliateshall provide its own work location(s) and all consumable and non-consumablesupplies, materials, equipment, tools and other goods and services reasonablynecessary for carrying out the work contemplated herein.
7.2 Exclusivity. The services of the Affiliate to the Company under this Agreement aredeemed exclusive, and neither the Affiliate, nor any agent or affiliatethereof, shall be free to render similar services to other companies or clientsplacing digital displays or kiosks, whether passive or interactive, orproviding installation, rental, sales, advertising, maintenance, repair, orother services related to same. This restriction applies during the Term ofthis Agreement and for two years thereafter. Notwithstanding any provision inthis Agreement to the contrary, if Affiliate renders services to any suchcompetitor in violation of this section, Affiliate shall not be entitled to anyCommissions after the date of such violation.
7.3 The Company maymodify or amend these Affiliate Policies, including Exhibit A, at any time bygiving written notice to Affiliate.
8.0 Program Policies. Affiliate shalladhere to the following rules, policies and guidelines applicable to theAffiliate Program:
8.1 Whenreferring to TOWR™ in writing, as a brand, product, service or otherwise,always include the ™ marking to reflect the Company’s trademark rightsapplicable to TOWR™ and the TOWR™ Products.
8.2 Affiliatestipulates that Company’s reputation is paramount to its success, and that deceitful,misleading and dishonest conduct toward any Customer prospect would irreparablydamage Company’s reputation and good will, result in financial loss, and causeother irreparable harm. Accordingly, Affiliate shall not be entitled to receiveCommission as to any TOWR™ Advertising Agreement procured as a result ofdeceit, misinformation, dishonesty, threat, duress, coercion or othermisconduct by Affiliate.
8.3 Unlessotherwise notified by the Company, Affiliate may use any reasonable efforts andmeans to market and promote the TOWR™ Products to Customer prospects. TheAffiliate must obtain Company’s pre-approval before posting, distributing,displaying, publishing, communicating or otherwise disseminating anyinformation, advertisement, video, audio, print material, or other contentwhatsoever that refers or relates to the Company, TOWR™, the TOWR™ Products orany other product or service of the Company or any Related Entity.
8.4 TheCompany reserves the right to require Affiliate to take down, remove, delete orotherwise cease and desist dissemination, display, publication, communicationor distribution of any information, video, audio, print material, or othercontent whatsoever that refers or relates to the Company, TOWR™, the TOWR™Products or any other product or service of the Company or any Related Entity.In event of such demand by Company, Affiliate shall comply as soon asreasonably possible.
8.5 Affiliateshall have no rights with respect to any Customer Data, the TOWR™ Content orany other rights except as expressly set forth in this Agreement.
8.6 TheCompany may modify or amend these Program Policies at any time by givingwritten notice to Affiliate.
9.0 Non-Disclosure of Confidential Information.
9.1 Companyis engaged in several lines of business, including but not limited to owning,placing, operating, and selling TOWR™ Products, ATM Machines, Virtual CurrencyKiosks, Automated Machines, Self-Service Machines, and Digital Signage, andrelated services (collectively, the "Business”). Company owns, controlsand has exclusive access to proprietary information concerning the operations,processes, methods and accumulated experience incidental to its Businessincluding, without limitation, those matters not generally known to the publicor the industry in which the Company is or may become engaged and which pertainto the Business in connection with programming, systematizing, engineering,manufacturing, merchandising, advertising, promotions, marketing, selling,distributing, samples, customer lists, prospect lists, price and discountlists, sales figures, trade secrets and market research (collectively the"Confidential Information"). Confidential Information shall alsoinclude any information fitting the definition of a “trade secret” under theDefend Trade Secrets Act of 2016 (DTSA), 18 U.S.C. § 1836 et seq, andany other information provided by Company marked as “confidential”,“proprietary” or “restricted”, or which under the circumstances shouldreasonably be considered as confidential. Theterm “trade secret” pursuant to the DTSA, 18 U.S.C. § 1839(3), means allforms and types of financial, business, scientific, technical, economic, orengineering information, including patterns, plans, compilations, programdevices, formulas, designs, prototypes, methods, techniques, processes,procedures, programs, or codes, whether tangible or intangible, and whether orhow stored, compiled, or memorialized physically, electronically, graphically,photographically, or in writing if: (A) theowner thereof has taken reasonable measures to keep such information secret;and (B) the informationderives independent economic value, actual or potential, from not beinggenerally known to, and not being readily ascertainable through proper means by,another person who can obtain economic value from the disclosure or use of theinformation.
9.2 Further, the definition of Confidential Information and Affiliate’s obligations with respectto Confidential Information shall also extend to information, documents andother materials owned or controlled by other persons or entities related to oraffiliated with managers or members of the Company, which Confidential Information the Affiliate may from time to time come into possession of, have knowledge of,or have access to, that otherwise matches the definition of ConfidentialInformation in Section 2(a) above. Such related or affiliated entities includebut are not limited to: Richard J. Baumy; Richard A. Baumy; TOWR, LLC; BaumTech,LLC; Baumy Cash Management, LLC; BCALM, LLC; 6565 St. Claude Ave, LLC; 2439-2441Decatur, LLC; 4200 St. Claude, LLC; Wav3, LLC; WTMA1, LLC; Cajun 417, LLC; ;6608-14 Dauphine, LLC; Cajun Broad, LLC; BaumCoin, LLC; Allegiant ATMs, LLC;Allegiant ATM Services, LLC; 6930 St. Claude Owner, LLC; Baumy Fund 1, LLC; andRB Old Arabi, LLC (“Related Entities”).
9.3 Affiliateacknowledges that, upon execution of this Agreement and solely by reason of Affiliate’sassociation with the Company, Affiliate may come into possession of, haveknowledge of, have access to, or contribute to, develop, and/or enhance theConfidential Information. But for the Affiliate's association with the Companyand the Affiliate’s entering into this Agreement, no Confidential Informationwould have been disclosed to Affiliate.
9.4 The ConfidentialInformation is a valuable asset of the Company and is, will be and shall at alltimes remain, the sole and exclusive property of the Company (subject to theCompany’s exclusive right to sell, transfer or assign same, which authoritydoes not vest in Affiliate). Affiliate shall gain no interest or rights in orto Confidential Information or to its enhancements, developments or refinementsby virtue of disclosure of such information to Affiliate, or by virtue of anyenhancements, developments or refinements which the Affiliate may have made toor contributed with respect to any Confidential Information.
9.5 Affiliate shall, at all times, hold the Confidential Information as secret.
9.6 Affiliate shall use the Confidential Information exclusively for the purpose of carrying out Business on behalf of the Company. Affiliate shall not use the Confident ialInformation for Affiliate’s own benefit or purpose, or for the benefit of any third party, without the prior written consent of the Company.
9.7 Affiliate shall not directly nor indirectly cause or permit the exploitation, copying or summarizing of any of the Confidential Information, except in the performance of Affiliate's duties for the Company as expressly directed by an officer the Company.
9.8 Except as expressly directed by the Company, during the term of the Affiliate’sassociation with Company and at all times thereafter, the Affiliate shall notat any time attempt to enhance, develop or reverse engineer the Confidential Information in any manner.
9.9 Affiliate under stands that Company conducts its Business at various points throughout the United States, and that Affiliate must maintain and preserve all of the Confidential Information and knowledge thereof as unavailable to the Company's competitors, the industry and the general public in order to protect the Company's business, competitive position and good will.
9.10 Affiliate agrees that Company derives a competitive advantage in the marketplace by maintaining the Confidential Information and knowledge thereof as secret and unavailable to the Company's competitors and the public.
9.11 During the term of Affiliate's association with the Company and after termination of that relationship for any reason or no reason, with or without cause, Affiliateshall not, directly or indirectly, individually or in combination or association with any other person or entity, divulge or disclose to any third party any of the Confidential Information without, in each instance, the prior written consent of the Company.
9.12 Affiliate shall permanently destroy any materials containing Confidential Information prior to discarding or disposing of same. Documents shall be shredded with a micro-cut shredder. Digital media shall be destroyed in a similarly appropriate manner, such that information cannot be retrieved.
9.13 Upon terminationof Affiliate's association with the Company for any reason or no reason, withor without cause, or at any time upon the Company’s request, Affiliate shallimmediately deliver or cause to be securely delivered to the Company all keys,ID badges, access cards and similar items issued by Company and any of itscustomers, along with all of the Confidential Information in Affiliate'spossession or control including, without limitation, originals and copies ofbooks, catalogues, sales brochures, customer lists, prospect lists, pricelists, employee manuals, operations manuals and other documents reflecting orreferencing the Confidential Information, as well as all other materialsfurnished to or acquired by Affiliate as a result of or during the course of Affiliate'sassociation with the Company.
9.14 The obligations ofconfidentiality under this Agreement shall remain in place and will only expireupon the latter of five (5) years following the Effective Date of thisAgreement or three (3) years after the termination of association with theCompany, except as may be otherwise provided herein. Notwithstanding such expirationof this Agreement all Confidential Information that constitutes a trade secretunder the DTSA shall remain subject to the confidentiality and non-disclosureobligations of this Agreement for so long as such Confidential Informationremains a trade secret pursuant to the DTSA.
9.15 Affiliate agrees that the confidentiality and non-disclosure provisions in this Section 9.0 are not soonerous as to serve as the functional equivalent of a non-competition agreement; Affiliate further affirmatively waives such argument and agrees that Affiliate will not raise such an argument adverse to the Company in any litigation, arbitration or other proceeding concerning any dispute arising from or related to this Agreement.
10.0 Non-Interference. For a period of two(2) years, or the maximum time permitted by applicable law if shorter, after termination of Affiliate's association with the Company, for any reason or no reason, with or without cause, Affiliate shall not interfere with the relationship of the Company or any Related Entity, and any of their respective customers, agents, representatives or suppliers, or directly or indirectly, either for himself/herself or for any other person or entity, solicit any customers, agents, representatives or suppliers to the Company or Related Entities to purchase or distribute information, products or services of or on behalf of the Affiliate or such other person or entity that are competitive with the Business of the Company or any Related Entity. Nothing contained in this Section 10.0 shall prohibit general advertising or solicitation not directed at the customers, agents ,representatives or suppliers of the Company or its affiliates. For purposes of this paragraph, “Affiliate’s association with the Company” includes any timeperiod when Affiliate is receiving compensation arising from the Agreement after termination or expiration of same.
11.0 Non-Solicitation. For the period of two(2) years, or the maximum time allowed by applicable law if shorter, after termination of Affiliate's association with the Company, for any reason or no reason, with or without cause, the Affiliate will not, solicit any employee ofthe Company or any Related Entity to terminate his or her association with theCompany or Related Entity or employ any such individual during his or herassociation with the Company or Related Entity and for a period of six (6)months after such individual terminates association with the Company or Related Entity. However, contact with such persons resulting from generaladvertising or unsolicited contact does not violate the restrictions in thisSection 11.0. For purposes of this paragraph, “Affiliate’sassociation with the Company” includes any time period when Affiliate isreceiving compensation arising from this Agreement after termination or expirationof the Agreement.
12.0 Non-Disparagement. Affiliate agrees not to make negative comments,refer unfavorably to, or otherwise disparage the Company, any Related Entity,or their respective officers, directors, employees, shareholders, agents, or any of their services or products, including but not limited to the TOWR™ Products and related services, in any manner likely to be harmful to them ortheir business, business reputation or personal reputation during Affiliate’sassociation with the Company and forever thereafter. The foregoing shall not bedeemed violated by truthful statements in response to legal process, requiredgovernmental testimony or filings, or administrative or arbitral proceedings(including, without limitation, depositions in connection with suchproceedings); provided, that prior to making any disparaging statement the Affiliateshall provide the Company with prior notice and shall reasonably cooperate withthe Company in seeking a protective order or other appropriate protection againstmaking such statement. For purposes of this paragraph, “Affiliate’s associationwith the Company” includes any time period when Affiliate is receivingcompensation arising from this Agreement after termination or expiration of theAgreement.
13.0 Intellectual Property.
13.1 The Affiliate represents and warrants that all content utilized by the Affiliate infurtherance of its performance under this Agreement, including, withoutlimitation, any images, videos, audio recordings, designs and text, and includingany other intellectual property, such as copyrights or trademarks, is ownedsolely and legally by the Affiliate.
13.2 Any images, videos, audio recordings, designs, text, or other content created byAffiliate in pursuit of its marketing, promotional or sales efforts under this Agreement (the “Marketing Content”) shall remain the property of Affiliate. Affiliate hereby grants to Company an irrevocable license to use any such Marketing Content for any purpose, during and after the term of this Agreement. Affiliate shall provide Company with a copy of any such Marketing Content upon request, in the resolution and file format requested by Company, to the extentreasonably practicable.
13.3 Anymaterials developed by the Company, making use of Marketing Content, remainsthe sole property of the Company subject to all applicable laws and/orstatutes.
14.0 Other Representations and Warranties.
14.1 The Affiliateagrees that the restrictions and limitations contained in Sections 9.0 through 12.0 and all subparts thereof, includingbut not limited to any time periods and geographic limitations: (i) are reasonablein all respects, including as to scope and duration, and are necessary toprotect the Company's proprietary interest in its Confidential Information andto protect the Company’s legitimate business interests; (ii) do notunreasonably interfere with or burden any interest or right of the Affiliate,(iii) do not violate public policy and (iv) are fully enforceable now and inthe future against the Affiliate in accordance with the terms of thisAgreement.
14.2 Affiliate shall deal with the Confidential Information strictly in accordance with the terms ofthis Agreement.
14.3 Affiliate's representation sand warranties set forth herein shall be revived continuously throughout Affiliate's association with the Company.
14.4 Company is materially relying upon each of Affiliate's covenants, agreements, representations and warranties in engaging Affiliate for the Company.
14.5 Neither the Affiliatenor Affiliate’s employees and other agents shall, during the time of renderingservices to the Company or anytime thereafter, disclose to any other person orentity the terms or any other aspects of this Agreement, nor the terms or anyother aspects of any TOWR™ Advertising Agreement obtained pursuant to thisAgreement; specifically including, but not limited to, any other Customer, norany other Affiliate, agent or employee of the Company, without the priorwritten consent of the Company’s Chief Executive Officer.
15.0 Limitation of Liability.
15.1 The Company shall not be responsible for any costs incurred by the Affiliate, including, without limitation, any and all fees and expenses, such as those described in Sections 4.5 above and 7.1.4 above.
15.2 EXCEPTWITH RESPECT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALLBE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, ORCONSEQUENTIAL DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, INCLUDINGBODILY INJURY, DEATH, LOSS OF REVENUE, OR PROFITS OR OTHER BENEFITS, AND CLAIMSBY ANY THIRD PARTY, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OFSUCH DAMAGES. THE FOREGOING LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THEAGGREGATE, INCLUDING, WITHOUT LIMITATION, TO BREACH OF CONTRACT, LIQUIDATEDDAMAGES, STATUTORY DAMAGES, ATTORNEY’S FEES, BREACH OF WARRANTY, NEGLIGENCE,STRICT LIABILITY, AND OTHER TORTS, BUT THE LIMITATION SHALL NOT APPLY TO CAUSESOF ACTION ARISING FROM A PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.
15.3 Force Majeure. Neither party will be liable forthe failure to perform its obligations under this Agreement if such failure isdue to acts or events beyond such party’s reasonable control which includes byway of illustration, but not limitation, acts or events attributable tofailures or fluctuations in equipment, electrical power, heat, light,utilities, air conditioning, telecommunications equipment, malfunctions or deficiencies in hardware or software, revocation of computer software license, third-party nonperformance, epidemic or pandemic of infectious disease, acts of God or public enemy, acts of government, civil disobedience, lock-outs, freightembargoes or terrorism if any such failure of its obligations could not have been prevented by reasonable precautions and cannot reasonably be circum ventedby the non-performing party through the use of alternative sources or plans, and provided that the Party whose performance is affected shall provide prompt written notice of delay or non-performance to the other Party and shall use commercially reasonable efforts to minimize the impact of the such delay ornon-performance on the other Party.
16.0 Duration & Scope.
16.1 This Agreement shall take effect immediately upon execution by both Parties, and shall remain in full force and effectindefinitely, or until terminated pursuant this Agreement.
16.2 All provisions in this Agreement which, by their express terms or by their nature, are intended to extend beyond the termination or expiration of this Agreement(including, but not limited to, sections pertaining to compensation earned during the active term, remedies for breach, indemnification, termination, confidentiality, non-interference, non-solicitation, non-disparagement, certain general provisions, etc.) shall survive the termination or expiration of this Agreement.
17.0 Indemnification. AFFILIATEAGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE COMPANY AND ANY AFFILIATEDAND RELATED ENTITIES, AND ALL THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS,EMPLOYEES AND INSURERS FROM ANY AND ALL CLAIMS, DEMANDS, LOSSES, CAUSES OFACTION, DAMAGES, LAWSUITS, JUDGMENTS, INCLUDING ATTORNEYS’ FEES AND LEGALCOSTS, ARISING OUT OF, OR RELATING TO, ANY ACTS OR OMISSIONS OF AFFILIATERELATED TO ITS PERFORMANCE UNDER THIS AGREEMENT, ANY BREACH OF THIS AGREEMENTBY AFFILIATE, OR BREACH OF ANY REPRESENTATION OR WARRANTY GIVEN BY AFFILIATE INTHIS AGREEMENT.
18.0 Assignment.
18.1 By Affiliate. This Agreement is deemed personal as to Company’s selection of Affiliateand may not be assigned by Affiliate, in full or in part, without the express written consent of the Company.
18.2 By Company. If Company assigns its rights and obligations under this Agreement to an assignee that assumes the obligations, Company shall give Affiliate written notice of the assignment, and Company shall be released from all obligations under this Agreement incurred on or after the date of the assignment and assumption by the assignee. In the event Company sells or assigns any of its rights in any TOWR™ Advertising Agreement to a third party, Company shall have the option, in its sole discretion, to either (A) assign this Agreement, or any portion thereof, to the acquiring party as-is, or (B) buy out Affiliate through the end of the then-current TOWR™ Advertising Agreement term(s), thereby terminating the Affiliate’s right to any further Commissions thereon, in which case Affiliate will be deemed paid in full and shall not be entitled to further compensation, notwithstanding any other provision of this Agreement to the contrary. Nothing herein shall be deemed to otherwise limit Company’s assignment rights.
19.0 Dispute Resolution. In the event of any dispute between the parties under this Agreement, any claims or legal actions by one party against the other arising under this Agreement or concerning any rights under this Agreement shall be commenced and maintained in any state or federal court located in St. Bernard Parish, Louisiana and, in the case of exclusive federal jurisdiction, the United States District Court for the Eastern District of Louisiana. Both parties hereby irrevocably submit to the jurisdiction and venue of any such court.
19.1 Injunctive Relief. Without limiting the remedies available to the Company, Affiliate acknowledges that a breach of any of the covenants contained in Sections 4.0, 7.0, 8.0, 9.0, 10.0, 11.0, and 12.0 above, including all the irrespective subparts, may result in material irreparable injury to the Company for which there is no adequate remedy at law, that it will not be possible to measure precisely damages for such injuries and that, in the event of such abreach or threat thereof, the Company shall be entitled, without the requirement to post bond or other security, to obtain a temporary restrain in gorder and/or injunction restraining Affiliate from engaging in activities prohibited by this Agreement or such other relief as may be required tospecifically enforce any of the covenants in the aforementioned sections of this Agreement.
19.2 Jury Trial Waiver. THE PARTIESAGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIALBY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM, THIRD-PARTY CLAIM OR ANY OTHERISSUES IN ANY ACTION RELATED TO OR ARISING OUT OF THIS AGREEMENT.
19.3 Class Action Waiver. THE PARTIES IRREVOCABLY WAIVE AND RELINQUISH ANY PAST, PRESENT OR FUTURE RIGHTTO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ADVERSE TO EACH OTHER, IN ANYCAPACITY, WITH RESPECT TO ANY CLAIM, COUNTERCLAIM, THIRD-PARTY CLAIM OR ANYOTHER ISSUES IN ANY ARBITRATION OR LEGAL ACTION RELATED TO OR ARISING OUT OFTHIS AGREEMENT.
19.4 Attorney’s Fees & Costs. In the event of either Party retains counsel to enforce any term or resolve any dispute arising out of or relating to this Agreement, the prevailing party shall be entitled to recover all costs incurred and reasonable attorneys' fees, including attorneys' fees in all investigations, trials, bankruptcies, and appeals, and including attorneys' fees and costs incurred proving entitlement to defense and indemnity. If the other Party fails to pay all amounts due within thirty (30) days after a court judgment has become final and non-appealable, the prevailing party shall be further entitled to recover attorney’s fees and costs for collection equal to 40% of the principal amount awarded by judgment.
19.5 Personal Guarantee. If Affiliate is an LLC, Corporation, LLP or ot herentity, then the individuals signing this Agreement on behalf of Affiliate hereby agree to, jointly and severally as applicable, personally guarantee the payment and collection of all fees and costs payable under this Agreement, on behalf of said entity.
20.0 . General Provisions
20.1 Construction. This Agreement shall be construed, interpreted and enforced according to the statutes, rules of law and court decisions of the State of Louisiana, without regard to conflict of law provisions. The Affiliate acknowledges and agrees that he or she has been given an opportunity to review this Agreement with legal counsel of their own choosing, at their own expense. By signing this Agreement, the Affiliate represents and warrants that Affiliate has had all questions answered to their complete satisfaction and fully understands all terms and conditions herein. In the event of a dispute regarding the interpretation of any provision in this Agreement, no provision shall be interpreted against the Company by virtue of the Company having drafted this Agreement.
20.2 Gender and Number. Wherever appropriate herein, the masculine may mean the feminine or neuter, and the singular may mean the plural, or vice versa.
20.3 Severability and Savings. Any provision or clause of this Agreement is held to be invalid by a court of competent jurisdiction based on any law or regulation existing at the time this Agreement is entered or anytime thereafter, then such provision or clause shall be severed without affecting any other Agreement, the balance of which shall remain in full force and effect; provided, however, that if such provision or clause may be modified so as to be valid as a matter of law, then the provision or clause shall be deemed to be modified so as to be enforceable to the maximum extent permitted by law.
20.4 Headings.The headings and titles of the section sand paragraphs of this Agreement are for convenience purposes only, and are not intended to define, limit or construe the contents of the various paragraphs. The headings and titles of the section sand paragraphs of this Agreement are for convenience purposes only, and are not intended to define, limit or construe the contents of the various paragraphs.
20.5 Entire Agreement. This Agreement sets forth the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior agreements of the parties relating to the subject matter hereof, whether oral or written.
20.6 Amendments. Company may modify this Agreement at any time by providing written notice to Affiliate of the updated terms. It shall be sufficient notice if Company posts the updated terms online and provides Affiliate with the URL with instructions to review the updated terms. If Affiliate objects to any updated terms, Affiliate may terminate the Agreement by providing written notice to Company within fifteen(15) days after receiving notice of the updated terms, in which case Affiliate shall not be bound by the updated terms and the Agreement shall be deemed terminated. Affiliate will otherwise be presumed to have read, understood and accepted any updated terms promulgated pursuant to this Section. Except as otherwise provided herein, no provision of this Agreement may be modified, except by a written instrument duly signed and acknowledged by the Affiliate and an authorized representative of the Company.
20.7 Waiver No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving party. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision thereafter.. No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an authorized representative of the waiving party. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision thereafter.
20.8 Counterparts. For the convenience of the parties hereto, this Agreement may be executed in any number of counterparts or facsimile counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts shall together constitute one and the same agreement.
