.png)
(Rev 08.17.2023)
These Terms and Conditions are made part of the TOWR™ PLACEMENT AGREEMENT (together, the “Agreement”) by and between Baumy Media, LLC (“BM”), and the Client, (each a “Party” and collectively, the “Parties”). This Agreement will not take effect unless and until BM’s authorized representative countersigns the Agreement.
1. AGREEMENT. Client hereby grants to BM an exclusive license to maintain one or more kiosk-styledigital displays with branded wrap and related equipment (“Display”) in certainfacilities (the “Site(s)”) as more specifically identified in the Sales Form.
2. TERM; RENEWAL. The initial service term of this Agreement begins on the latter of (i) the date when the Display is first installed or(ii) the date when this Agreement has been fully executed by all parties (the “Installation Date”) and continues for the initial time period stated on the applicable Sales Form (the “Initial Term”). The Agreement will renew for subsequent terms (each a “Renewal Term”) for the renewal duration set forth in the Sales Form and otherwise upon the same terms and conditions applicable to the Initial Term, unless notice of cancellation is properly given as set forth in the Sales Form. If the Initial Term duration is not stated in the Sales Form, the Initial Term shall be 60 months. If the Renewal Term duration is not stated in the Sales Form, the Renewal Term shall be the same duration as the Initial Term. If the cancellation provision of the Sales Form does not indicate the method by which the Agreement may be canceled to avoid renewal, the Initial Term of this Agreement, and any subsequent Renewal Terms, will renew upon the same terms and conditions applicable to the Initial Term, unless either Party sends written notice terminating this Agreement at least 90 days, but no more than 180 days, prior to the end of the then-current Term. Never the less, both Parties remain bound by this Agreement between the Effective Date and the Installation Date(the “Executory Period”). As used herein, “Term” means the Executory Period, the Initial Term, and any Renewal Terms.
3. INSTALLATION AND OPERATION. BM shall have the right to select location(s) within the Sites, subject to Client’s approval that shall not be unreasonably withheld, to maximize benefits to visitors. BM or its authorized agent(s) will install the Display at each Client. Client must ensure the Display remains unobstructed and clearly visible at all times.
4. FEE PROCESSING; LICENSOR’s COMMISSIONS. BM will operate the display and collect all revenues generated. BM has sole authority and discretion to set and change the placement, pricing, duration, and options of an advertisement. BM will pay Client a commission (“Location Fee”) from Net Revenue collected from Advertisements, per the Location Fee Schedule. A “Paid Advertisement”, is defined as any advertisement where revenue is collected.“Net Revenue” is defined as funds collected from Paid Advertisements, less anyrefunds, payment processing fees, sales commissions paid to advertising agencies or other sales representatives, internet fees, and software fees. Payments are calculated at the end of each month. Payment is made via check or ACH by the end of each succeeding month. Client must provide BM a signed W9before payments are made and must update W9 information as needed. All fees are calculated monthly and paid within thirty (30) days of the end of each calculation period. Baumy Media has the option of sending payment in the form of an ACH direct deposit or check. Client shall provide Baumy Media a cancelled check, completed ACH form, a completed W-9 form, and any other documentation needed to establish payments, at the time of Agreement signing. In the event of any payment disputes, Client shall notify Baumy Media within 60 days after Client knew or, in the exercise of due diligence, should have known of any payment discrepancy. If Baumy Media’s investigation confirms Client’s claim, Baumy Media will pay Client the amount due. In no event shall Client been titled to back payments that accrued more than six (6) months prior to Client’s notice to Baumy Media regarding an alleged discrepancy. If Client fails to give timely notice of discrepancies pursuant to this paragraph, Client shall not be entitled to back payments that accrued prior to the date of actual notice to Baumy Media.
5. CLIENTRIGHTS AND OBLIGATIONS. (1) Client will provide electricity, at its sole expense, through a standard-type three-prong outlet and 110 Volt, 15 Amp, grounded circuit, dedicated to and located within three feet of each Display. Client will not allow access to the internal parts of the Display by persons other than BM or BM’s authorized servicing agents. (2) No Default. Neither the execution and delivery of this Agreement or any Statement of Work by Client, nor the consummation of the transactions contemplated hereby or thereby, shall result in the breach of any term or provision of, or constitute a default under, any charter provision or by law, contract or agreement (subject to any applicable consent), order, law or regulation to which Client is a Party or which otherwise applicable to Client.(3) Client will wipe down the Display with suitable non-abrasive cleaning agents and supplies, such as microfiber, as needed; (4) Where permitted by law, Client shall have the option to display up to one In-House Public Message per week in a size, format, and design quality specified by BM, which would display between other content at a time, space, frequency, and duration determined in the sole discretion of BM. (5) Client will provide suitable internet service to the Display; (6) Client shall permit the Display to be secured to the floor or wall, as BM may deem appropriate based on the particular placement of theDisplay and other factors; (7) BM may reject and refuse to display any content that, in BM’s sole subjective opinion, fails to meet its quality standards(e.g., substandard UX/UI, specifications, design, format, resolution, offensive or inappropriate content, etc.); or (8) Client shall promptly inform BM of any existing or new federal, state, local laws, regulations, ordinances, or other rules (“Laws”) that specifically govern or affect advertising at the Client’s facility or are applicable to the type of facility owned or operated by the Client within the applicable jurisdiction.
6. BM RIGHTS AND OBLIGATIONS. BM will, without additional charge to Client: (1) provide all parts and supplies necessary for the Display;(2) provide all routine maintenance and normal repairs of the Display; (3) pay the any and all fees as set forth herein; (4) BM reserves the right to update, upgrade or replace any Display, at BM’s expense, to comply with any applicable laws or regulations, or for the purpose of adding additional services (e.g., phone charging, beacons, and other future services or features) and BM shall been titled to all revenues generated by any such additional service offerings;(5) BM may place customer support stickers, branding or other information on the Display as appropriate, and shall have approval rights over any branded wrap design proposed by the Client, such approval not to be unreasonably with held. (5) BM may take any steps reasonably necessary to comply with any applicable Laws. In the event that BM learns of any Law that would prohibit, restrict, or increase the cost of the execution of this agreement, BM reserves the right to terminate this Agreement at any time, without penalty.
7. AUTHORIZED USE: Client shall not tamper with or modify the TOWR™ digital display's electronics, "jailbreak" the devices, install software or applications, or use the devices for web browsing or use other than operating the TOWR™ marketing content. Client acknowledges that any unauthorized tampering or modification of the TOWR™ digital display is a material breach of this Agreement and may subject the Client to liability for any damages incurred by BM as a result of such actions.
8. CONFIDENTIALITY. Both Parties agree to maintain theconfidentiality of all non-public information disclosed by the other Party during the term of this Agreement and for a period of five (5) years there after. The receiving Party shall use such confidential information solelyfor the purpose of performing its obligations under this Agreement and shall notdisclose, reproduce, or distribute such confidential information to any third party without the prior written consent of the disclosing Party, except to the extent necessary to fulfill the purposes of this Agreement. The receiving Party shall take reasonable measures to protect the confidentiality of the disclosing Party's confidential information, including but not limited to implementingphysical, technical, and procedural safeguards. This confidentiality obligationshall not apply to any information that: (a) is or becomes publicly availablewithout breach of this Agreement; (b) is rightfully obtained by the receiving Party from a third party without any obligation of confidentiality; (c) is independently developed by the receiving Party without reference to thedisclosing Party's confidential information; or (d) is required to be disclosed by applicable law, regulation, or court order, provided that the receiving Party gives the disclosing Party prompt written notice of such requirement to allow the disclosing Party to seek a protective order or other appropriate.
9. INTELLECTUAL PROPERTY OWNERSHIP. All content createdby BM for Client’s use or benefit pursuant to or in connection with this Agreement, including but not limited to ads, QR codes, apps, landing pages, andany other materials or intellectual property developed or provided by BM(collectively referred to as the “Content”), is and shall remain the exclusiveproperty of BM. Upon termination or expiration of this Agreement, the Clientshall immediately cease all use of the Content and shall have no further rightsor licenses to use, reproduce, distribute, or modify the Content in any waywithout the express written consent of BM. Client acknowledges and agrees thatthe Content is protected by copyright laws and other intellectual propertyrights. Client shall not, directly or indirectly, reverse engineer, decompile,disassemble, or otherwise attempt to derive the source code, design, orstructure of the Content. Client shall not, without the prior written consentof BM, use or allow any third party to use the Content for any purpose otherthan as expressly permitted under this Agreement. The Client shall notsublicense, assign, or transfer any rights in the Content to any third party.Client agrees to indemnify, defend, and hold harmless BM from any and allclaims, damages, liabilities, costs, and expenses (including reasonableattorney's fees) arising out of or in connection with any unauthorized use orinfringement of the Content by the Client or any third party. This provisionshall survive the termination or expiration of this Agreement for any reason.
10. CLIENT DATA SHARING OBLIGATION. Client agrees toprovide BM, upon request, with any relevant data regarding foot traffic atlocations where the TOWR digital displays are placed, as well as demographicinformation about their customers.
11. INNAPROPRIATE CONTENT. BM shall not allow any obscene, vulgar, or pornographic languageor graphic content on the Display. The Client may require BM to immediatelyremove any content that violates this paragraph. In the event inappropriatecontent is displayed as the result of hacking or other malicious third-partyactions, BM will make every effort to remove the inappropriate content as soonas possible. The Client hereby holds BM harmless in relation to any claims,actions or other consequences of such malicious third-party activity. Except asprohibited by this paragraph, BM shall have exclusive authority to approveDisplay content.
12. RIGHT OF FIRST REFUSAL & MATCH. To the fullestextent allowed by law, Client grants to BM a right of first refusal and rightto match any offers by any digital display equipment manufacturers, sellers,distributors, or service providers during the Term of this Agreement and for 12months after termination.
13. TITLE TO DISPLAY. BM retains title to Display and mayfile a UCC-1 financing statement with the appropriate state or county officesto identify and protect its interest in the Display and contents.
14. REMOVAL OF DISPLAY. BM may remove the Display from theSite(s) immediately upon termination of this Agreement, without notice toClient. Client may not move or modify the Display without BM’s writtenauthorization. After a Display has been installed by BM, if Client asks BM tomove, reinstall or relocate a display, either temporarily or permanently, forany reason, any expenses incurred by BM shall be the responsibility of theClient, and such expense shall be due BM upon receipt of a correspondinginvoice. BM is not required to restore the walls, floors, utilities or anyother part of the Site(s) to the pre-installation condition, nor reimburseClient for its restoration costs, regardless of cause. If Client desires totemporarily remove a Display from service or relocate a Display to an area ofthe location that is significantly less convenient or less visible to patrons(“Disruption”), Client shall notify BM in writing and seek approval prior toany Disruption, which BM will not unreasonably withhold if good cause is shown.If any Disruption lasts longer than thirty (30) days, Client shall either allowBM to relocate the Display to a new location acceptable to BM in its solesubjective discretion, or start paying liquidated damages, calculated pursuantto Paragraph 16, without respect to the default cure period provisions therein,starting on the 31st day of any BM-approved Disruption. Client shall also owesaid liquidated damages for the entire duration of any Disruption notpre-approved by BM. Further, if any disruption lasts more than fifteen (15)days, the Term of this Agreement shall be automatically extended by theduration of the Disruption. Client shall give BM prompt written notice of thestart and conclusion dates of any Disruption.
15. NO COMPETING EQUIPMENT. Client will not allow any other digital advertisement system of any type, form or function, to be installed on, or within, the Site(s) or adjacent facilities owned or leased by Client.
16. TERMINATION BY BM. In consideration of providing use of the Display to Client free of charge, BM may terminate this Agreement, in whole or as to any individual Site(s), by sending Notice to the Client if: (1) if BM reasonably determines, in its own discretion, that the Display is not sufficiently profitable for continued operation; (2) the safety and the security of the Display location fails to meet BM’s standards; or (3) any federal or state legislation or regulation(s),or an order or ruling of a court of competent jurisdiction, contains terms or conditions which materially and adversely affect this Agreement, its profitability to BM or the ability of either Party to perform their respective responsibilities as set forth herein.
17. DEFAULT. If either Party is in breach of any of its duties, covenants, or undertakings under this Agreement, and has not remedied the same within thirty (30) days after receiving Notice of same from the other Party, except with regard to termination under Section 12, Termination by BM, for which no notice or opportunity to cure is required, the non-defaulting Party may thereafter terminate this Agreement by giving Notice of termination to the other Party. In the event that BM terminates this Agreement due to a material breach by the Client, all amounts due to BM through the end of the current Term shall become immediately due and payable by the Client.
18. WAIVER. BMis not liable to Client for injury to Client’s business, including loss of commissions, loss of income and/or other damages due to, or arising from: (1)BM’s reasonable and proper termination of this Agreement; or (2) any mechanical failure, communication failure, cyber theft, hacking, failure of a third-party, power failure, or any other circumstance resulting in loss of use of the Display.
19. INDEMNIFICATION. Client will indemnify and hold harmless BM and BM’s owners, members, managers, directors, officers, employees, agents, parent, subsidiaryand related entities, insurers or other affiliates (the “Indemnified Parties”)from any and all claims, actions, damages, liabilities, costs, and expenses(including reasonable attorney's fees)(“Claims”) of otherwise relating toClient’s business and/or any Client, even those Claims arising from BM’s negligence. Client agrees to indemnify, defend, and hold harmless the Indemnified Parties from and against any and all Claims arising out of or in connection with the use or misuse of the data captured through the QR codes and landing pages/web apps by the locations or any third parties to whom the data is shared. Client shall assume full responsibility for the actions or omissions of the locations or any third parties in relation to the data, and shall promptly reimburse the Indemnified Parties for any damages or losses incurred as are sult thereof, regardless of fault. This indemnification provision shall survive the termination or expiration of this Agreement and shall apply to all Claims, regardless of whether arising from BM’s negligence. Client will also indemnify and hold harmless the Indemnified Parties from any and all Claimsarising, in whole or in part, from any breach or default in the performance of any obligation of Client under the terms of this Agreement, Client’s negligence and/or Client’s vicarious fault, and from and against all costs, attorney’s fees, expenses and liabilities incurred in the defense of any such Claim.
20. ATTORNEY'S FEES AND COSTS. In the event of any litigation between the Parties arising out of or relating to this Agreement, the prevailing party is entitled to recover from the other Party all related costs and reasonable attorneys' fees incurred, including but not limited to all investigations, trials, bankruptcies, collections and appeals.
21. LIQUIDATED DAMAGES. If Client breaches this Agreement in a way that materially impacts the revenue BM would otherwise be expected to receive, and the breach continues for more than ten (10) days after Client becomes aware or should have become aware of the breach, Client shall owe to BM, as liquidated damages and not as a penalty, an amount equal to BM’s averagedaily net share of Revenue under this Agreement during the previous three (3)full monthly accounting periods before the period when the breach began, foreach day Client remains in breach.
22. LIMITATIONOF LIABILITY. To the fullest extent permitted by law, neither Baumy Media, LLC("BM") nor its officers, directors, employees, agents, or representatives, or its parent, subsidiary, related or affiliated entities, shall be liable to the Client or any third party for any indirect, incidental, special, consequential, or punitive damages arising out of or relating to this Agreement, including but not limited to loss of profits, loss of business, loss of use, or loss of data, even if BM has been advised of the possibility of such damages. In no event shall BM's total liability to theClient or any third party arising out of or relating to this Agreement exceed the total amount paid by the Client to BM under this Agreement during the twelve (12) months immediately preceding the event giving rise to such liability. The limitations set forth in this clause shall apply regardless ofthe form of action, whether in contract, tort (including negligence), strictliability, or otherwise, and regardless of whether such damages were foreseeable or unforeseeable. The Client acknowledges and agrees that thelimitations of liability set forth in this clause are fundamental elements ofthe bargain between the Parties and that BM would not enter into this Agreementwithout such limitations. This limitation of liability shall survive thetermination or expiration of this agreement.
23. NO FINANCIAL REPRESENTATIONS. Client acknowledges BM has not made any warranties, guarantees or representations as to the actual, volume, revenues or expenses of the Display.
24. BIDING EFFECT. This Agreement shall bind the Parties, their personal representatives, successors, and assigns.
25. CHOICE OF LAW. In all respects, including, without limitation, matters of construction, validity, and performance, this Agreement, and the obligations arising hereunder, shall be governed by and construed in accordance with substantive, procedural, and constitutional laws of the Stateof Louisiana applicable to contracts made and performed in such State, and any applicable law of the United States of America, regardless of other choices of law considerations.
26. JURISDICTION; VENUE. In any proceeding, action, or suit brought to enforce this Agreement, Client expressly consents to the jurisdiction of the courts of the State of Louisiana over the person of Client and to exclusive venue in St. Bernard Parish, Louisiana, unless said court slack subject matter jurisdiction.
27. CLASS ACTION WAIVER; NO JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BYLAW, EACH PARTY IRREVOCABLY WAIVES (a) ANY RIGHT TO PARTICIPATE IN A CLASSACTION LAWSUIT OR ARBITRATION AGAINST THE OTHER PARTY IN ANY CAPACITY, AND(b) ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,PROCEEDING, OR COUNTERCLAIM, (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE),ARISING OUT OF, OR RELATING TO, THIS AGREEMENT OR ANY OF THE TRANSACTIONSCONTEMPLATED HEREBY.
28. SEVERABILITY. Each provision of this Agreement is to be considered severable. If any provision(s) are determined to be invalid and contrary to existing or future law, such invalidity shall not impair the operation of or otherwise affect those portions of this Agreement which are valid, and this Agreement shall remain in full force and effect and shall be construed and enforced in all respects as if the invalid or unenforceable provision or provisions had been omitted and reformed with the closes ten enforceable language available. If any such provision is deemed unenforceable due to the excessive duration of a time period, the Agreement shall be reformed to limit the time period to the longest duration that would be enforceable under applicable law.
29. SURVIVAL. The Parties' rights and obligations, which by their nature would continue beyond the termination, cancellation or expiration of this Agreement, including without limitation, those relating to confidentiality, indemnification, remedies for breach, dispute resolution, and limitation of liability, shall survive termination, cancellation or expiration of this Agreement.
30. SUCCESSORS AND ASSIGNS. Client may not assign its rights or obligations under this Agreement without BM’s express written consent, which consent may be withheld for any reason or no reason in BM’s sole discretion. Whenever in this Agreement either Party is named or referred to, the heirs, executors, legal representatives, successors, successors-in-title, and assigns of such parties (“Successors”) shall be included, and all covenants and agreements contained herein by or on behalf or either BM or Client shall bind and inure to the benefit of their respective Successors. If BM assigns its rights and obligations under this agreement in connection with any sale orother conveyance of its company, or any assets thereof, BM shall be released and relieved from any further obligations hereunder.
31. UPDATES TO TERMS AND CONDITIONS. CLIENT HEREBYACKNOWLEDGES AND AGREES THAT BM MAY UPDATE THESE TERMS AND CONDITIONS AT ANYTIME BY POSTING THE CHANGES ONLINE AND NOTIFYING CLIENT VIA U.S. MAIL, EMAIL,OR FAX. CLIENT MAY OPT-OUT OF ANY SUCH CHANGES BY SENDING BM WRITTEN NOTICE OFSAME VIA CERTIFIED OR REGISTERED MAIL IN ACCORDANCE WITH THE NOTICE PROVISIONSHEREUNDER, WITHIN 21 DAYS AFTER BM GIVES CLIENT NOTICE OF THE CHANGE(S).
32. NOTICES. All notices, demands, requests, and other communications permitted or required hereunder (“Notice” or “Notices”) must bein writing. The address for delivery of such notices to BM is: Baumy Media, LLC, 6565 Saint Claude Ave., Arabi, Louisiana 70032. The address for notices to Client shall be its primary address as indicated in this Agreement, including the Sales Form or any addenda hereto. Either Party may designate a different notice address by giving the other Party written notice of the same. Written notice shall be deemed to have been duly served if delivered in person to the individual or to an officer of the company for which it was intended, or if delivered at or sent by registered or certified mail to the last business address known to the Party giving notice.
33. ENTIRE AGREEMENT. Except as expressly provided herein, this Agreement contains the entire understanding among the Parties and supersedes any prior understandings and agreements between them. This Agreement may otherwise only be modified with a writing signed by both Parties.
34. FORCE MAJEURE: Neither party will be liable for the failure to perform its obligations under this
Agreement if such failure is due to acts or events beyond such party’s reasonable control which includes by way of illustration, but not limitation, acts or events attributable to failures 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 non performance, epidemic or pandemic of infectious disease, acts of God or public enemy, acts of government, civil disobedience, lock-outs, freight embargoes or terrorism if any such failure of its obligations could not have been prevented by reasonable precautions and cannot reasonably be circumvented by 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 or non-performance on the other Party. Notwithstanding the foregoing, nothing in this paragraph shallelieve Client of any payment obligations to BM or permit delay of same.
35. FURTHER ASSURANCES. Each party shall do and perform, or cause to be done and performed, all such further acts and things, and shall execute and deliver all such other agreements, certificates, instruments, and documents, as the other party may reasonably request in order to carry out the intent and accomplish the purposes of this agreement and the consummation of the transactions contemplated hereby.
36. WARRANTY OF AUTHORITY AND NON-INTERFERENCE. Client warrants that it has full legal authority to enter into this Agreement and(1)that no prior contract exists with any entity or person, other than BM, for any similar display, or in the event a prior contract exists that the contract has been fully performed or released and such other party has no further obligations under said contract, and (2) that this Agreement does not interfere with any contractual or legal obligations Client may have with respect to any contract or agreement for the placement of a Display and/or advertising at the Site(s), and Client agrees to indemnify, defend and hold harmless BM from any and all claims or liability arising out of this warranty of authority and non-interference.
END TERMS AND CONDITIONS (Rev 08.17.2023)
