TERMS AND CONDITIONS
1. Services. These Terms and Conditions and the Message Board Insertion Order Form together constitute this “Agreement.” Advertiser and Autowash, LLC (AW) agree that in exchange for the Agreed Sum, AW shall perform the services (“Advertising Services”) of reserving space, producing and exhibiting slides, video or other advertising material on the car wash message boards (“Message Boards”) more fully described in the applicable Insertion Order. The aggregate amount of on-screen advertising time described in the Insertion Order for the Advertisement(s) shall hereinafter sometimes be referred to as the “Screening Period.” AW does not guarantee any business generation or response for the Advertiser from such on-screen advertising.
2. Advertisement Production, Content, Ownership. (a) The Advertiser is responsible for supplying AW with all necessary copy and other materials to be used for the preparation of the Advertisement (“Material”) within 7 days after (i) the date of this Agreement or (ii) the date of a request for replacement Materials. Any failure by the Advertiser to supply Material will not terminate this Agreement nor in any way limit the Advertiser’s liability to pay the Agreed Sum to AW. Failure by the Advertiser to provide AW with acceptable Material in a timely manner could lead to placement on the next available drop date. If the Advertiser decides that an in- between drop date is required, then additional charges may apply. (b) The Advertiser acknowledges that AW may, in its sole discretion, refuse to accept any Material (including but not limited to copy illustrations, photographs and/or drawings) for the preparation of the Advertisement, or may withdraw any previously accepted Advertisement from display at any time and for any reason. In such event, AW has the right but is not required to ask the Advertiser to submit new Material and the Advertiser shall submit new Material within a reasonable time period specified in writing by AW. If the Advertiser fails to submit new Material in a timely manner, such event shall be treated as if the Advertiser failed to supply Material in the first instance. (c) In the event the Advertiser requires or requests a change in the Advertisement during the Screening Period, additional handling charges may apply. (d) All Advertisements prepared by AW are the sole property of AW (i) the Advertiser shall have no right to obtain either originals or copies of the Advertisement created in accordance with this Agreement, and (ii) AW shall not be required to grant any rights in or to such Advertisements to the Advertiser. AW makes no claim of ownership hereunder to any trademarks or copyrights in Material provided by the Advertiser. The Advertiser is not granted any rights in AW’s trademarks or copyrights. (e) the Advertiser hereby grants to AW a limited, non-exclusive, royalty-free, fully paid up license to modify, create derivative works of, reproduce, publicly perform, publicly present, display, distribute, edit, exhibit, broadcast and otherwise transmit the Material solely for the purpose of preparing and/or displaying such Advertisements on the Message Boards.
3. Costs. The Advertiser shall be solely responsible for all costs it incurs in connection with this Agreement, including, without limitation, expenses associated with creating and delivering the Material to Autowash, and for all out-of- pocket expenses of AW (as invoiced).
4. Make goods. If AW is unable to provide at least 90% of the advertising contemplated herein for any reason, AW will be entitled to provide extensions or additions to the Screening Period (the amount of which shall be determined by AW in its reasonable discretion) at no further cost to the Advertiser in lieu any other remedy (“make goods”). If the Advertisement contains material errors or misspellings which are the fault of AW, AW may in its absolute discretion, as the Advertiser’s sole remedy therefore, grant the Advertiser a time credit for a period which AW considers sufficient taking into account the nature and degree of the errors or misspellings. Advertiser shall not have any right to an extension of the Screening Period for material errors or misspellings in any Advertisement approved by the Advertiser prior to display or based on Material provided by the Advertiser.
5. Failure to Exhibit. If for any reason AW is unable to provide a Screening Period at a particular wash location, AW may provide a Screening Period at another comparable wash location(s) in the same area (which wash location(s) will thereafter replace such unavailable wash location under this Agreement for the period of substitution) or, at AW’s option, AW may terminate this Agreement in part as it pertains to exhibition at that specific car wash location without any further liability. In the case of AW’s partial termination pursuant to this section, the Agreed Sum shall be reduced by a percentage of the portion of the Agreed Sum for exhibition of the Advertisement at such wash location, based upon the number of days of exhibition at such wash location cancelled by AW as compared with the total number of days of exhibition at such wash location as specified in this Agreement.
6. Certificate of Placement. Promptly following the Advertiser’s request, AW shall provide written certification which will be conclusive evidence that the Screening Period was provided at the wash location on the dates shown on that certificate. The Advertiser shall have no right to contact any wash location directly without the prior written consent of AW.
7. No Exclusivity or Passes. This Agreement does not entitle the Advertiser to exclusivity on any Screen, whether on a category exclusivity basis or otherwise, or to any free or discounted use of the car wash location(s).
8. Exhibition Limitations. The Advertiser acknowledges that one month’s screening of an Advertisement means the screening on the car wash Message Boards on those days in a month and at such times on which the wash locations covered hereby are open to the public and operating. The car wash location(s) reserve the right to delay or otherwise alter the schedule of programming without notice. This right includes, but is not limited to, adjustments to programming due to weather, facility cleaning, or maintenance and repair. Such programming adjustments are considered normal and necessary and are accepted by the Advertiser. The advertising program may be turned off or paused temporarily at any or all of the Car Wash Location(s). Such event(s) shall not constitute a breach of this Agreement by AW and shall not affect the fees payable hereunder.
9. Notice of Omissions and Defects. The Advertiser is responsible for notifying AW in writing of any omissions, problems or defects in the Advertising Services provided as soon as reasonably possible, but not later than 10 days after the beginning of the Screening Period. The Advertiser waives any right to any remedy or relief for any such omission, problem or defect if the Advertiser fails to notify AW within the time limits set forth above.
(a) Payment. (a) At the start of the campaign the Advertiser will be invoiced for production and (1) month of media, and thereafter every (1) month until the end of the campaign. (b) Payment is due within the terms referenced on the face of the Insertion Order. Interest will be payable by the Advertiser on any payment which is past due, calculated at the rate of 1.5% compounded monthly for any past due amounts until the amount is paid, but in no event greater than the amount allowed by law. Any accrued interest will be payable to AW as a separate debt and be recoverable accordingly. (c) The fees, costs and rates set forth on the Insertion Order are exclusive of federal, state, local or other governmental taxes, and the Advertiser shall pay all such taxes related to this Agreement and/or the Advertising Services provided hereunder. (d) The Advertiser represents, warrants and agrees that any credit card information supplied in a credit card authorization related hereto is accurate, the use of such credit card is authorized and that AW is authorized to make periodic charges against such credit card to cover the fees and charges associated with this Agreement, including the Agreed Sum. (e) The Advertiser represents, warrants and agrees that any electronic funds transfer authorization information provided by or on behalf of the Advertiser is accurate, the use of the account identified for debit of funds is duly authorized, that Advertiser shall not terminate the authorized payments without prior notice to AW and that transfers from such account shall be used to make periodic payments to cover the fees and charges associated with this Agreement, including the Agreed Sum. (f) Any failure or inability of AW to obtain payment via an authorized credit card, or an authorized electronic funds transfer, shall not affect the Advertiser’s obligation to make the payments in accordance with the provisions set forth in this section. (g) In the event of any breach of the terms of payment, AW may, at its option, withdraw the Advertiser’s ability to pay by installments, resulting in the balance of the Agreed Sum to be due and payable immediately.
10. Credit Checks. The Advertiser consents to AW’s conducting, obtaining and exchanging credit inquiries, credit checks, or inquiries with commercial credit reporting agencies (“Credit Checks”) initially, throughout the term of this
Agreement, and upon termination so long as amounts are claimed due to AW. Based on information obtained through such Credit Checks, AW retains the right to terminate this Agreement or require additional advance payments.
11. Cancellation By Advertiser. This Agreement may be cancelled by the Advertiser only if the Advertiser closes the business to which this Agreement relates and only pursuant to the following: (a) the Advertiser gives AW 8 weeks written notice prior to the date of the closure of the business (“Effective Closing”), as well as proof of sale or closure acceptable to AW; and (b) the Advertiser pays AW any outstanding payments due for Advertising Services provided through the Effective Closing and 25% of the balance of the Agreed Sum payable for Advertising Services following the Effective Closing.
12. Default. If the Advertiser is in default of any of its obligations under this Agreement, including but not limited to the timely payment of monies due, AW may in its sole and absolute discretion and without prejudice to any rights AW may have against the Advertiser, (a) suspend provision of the Advertising Services without notice to the Advertiser and/or (b) terminate this Agreement upon notice to the Advertiser. In the event AW suspends provision of the Advertising Services and/or terminates this Agreement due to the Advertiser’s default, the Advertiser shall remain liable for the Agreed Sum which would have to be paid to AW through the expiration date of this Agreement, to the extent not yet paid. Any provision of services to other clients by AW shall not be considered as a set-off against the Advertiser’s obligations under this Agreement. The Advertiser shall be liable for legal or other fees and costs that are incurred by AW (including those related to any legal action by AW, such as collection or attorneys’ fees) to collect the balance due or any past due amount.
13. Representations and Warranties. The Advertiser warrants and represents that it has full power and authority to enter into and perform its obligations under this Agreement, that it owns or has the right to permit the use of the Material and Advertisements as set forth herein and that the Material and Advertisements and distribution, broadcast, public presentation and public performance thereof will not: (a) infringe the rights of any third party (including without limitation, copyright, trademark, patent, and other intellectual property rights, or rights of privacy or publicity); (b) defame any person; (c) contain anything indecent or obscene; (d) constitute or contain a statement that is misleading or deceptive or likely to mislead; or (e) violate any foreign or domestic federal, state, or local law or regulation. The Advertiser warrants and represents that neither AW nor any wash location will have any obligation to make any payment for the rights granted by the Advertiser hereunder. AW warrants and represents that it has full power and authority to enter into and to perform its obligations under this Agreement.
14. Indemnities. The Advertiser shall be solely responsible for any liability arising out of the Material and Advertisements and the distribution, broadcast, public performance public presentation and use thereof under this Agreement. Notwithstanding AW’s review or approval of any Advertisements, the Advertiser agrees to indemnify, defend and hold AW, its parents, subsidiaries, related entities, directors, members, employees, agents, subcontractors and independent contractors (“AW Entities”), and the Car Wash Location(s) harmless from and against any losses, costs, damages, or expenses (including reasonable attorneys’ fees and expenses) resulting from claims or actions arising out of or in connection with the Material and Advertisements (including, but not limited to, claims arising from the sale of goods or services by the Advertiser) or the Advertiser’s breach of any agreement, representation or warranty hereunder (including, but not limited to, claims for infringement of copyright, trademark or other intellectual property rights, or violation of rights of privacy or publicity). The Advertiser is solely responsible for the product(s) and/or service(s) advertised pursuant to this Agreement, and AW and its subcontractors and affiliates shall have no liability with respect thereto.
15. Limitation of Liability. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. AW AND THE AW ENTITIES SHALL NOT BE LIABLE FOR THE CONTENT OF ANY ADVERTISEMENTS HEREUNDER AND/OR THIRD- PARTY ADVERTISEMENTS AT THE CAR WASH LOCATION(S) NOR FOR ANY LOSS, COST, DAMAGE OR EXPENSE (INCLUDING COUNSEL FEES) INCURRED BY THE ADVERTISER IN CONNECTION WITH THE PLACEMENT OF THE ADVERTISEMENTS AT THE CAR WASH LOCATION(S), INCLUDING, BUT NOT LIMITED TO, FOR ANY TECHNICAL MALFUNCTION, COMPUTER OR OTHER ERROR, FAILURE OR REFUSAL OF A CAR WASH LOCATION TO EXHIBIT THE ADVERTISEMENTS, OR OTHER INJURY, DAMAGE OR DISRUPTION TO THE ADVERTISEMENTS INCLUDING ANY COSTS INCURRED BY THE ADVERTISER AS A RESULT OF REJECTED MATERIAL OR WITHDRAWN ADVERTISEMENTS PURSUANT TO SECTION 2 OF THIS AGREEMENT, OR FOR SCHEDULING ADJUSTMENTS OR CHANGES. IN NO EVENT SHALL AW AND THE AW ENTITIES ON THE ONE HAND AND THE ADVERTISER ON THE OTHER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL AW AND THE AW ENTITIES LIABILITY, INDIVIDUALLY AND COLLECTIVELY, EXCEED THE TOTAL AMOUNT PAID TO AW BY THE ADVERTISER HEREUNDER.
16. Confidentiality. The Advertiser acknowledges that the Advertising Services, including, without limitation, the technology, know-how, details, designs and specifications thereof, and AW the AW Entities marketing and operational strategies, services and customers are confidential and/or proprietary to AW the AW Entities, as applicable. Such information, if disclosed to the Advertiser, is done so in strict confidence and solely for the purposes of effectuating this Agreement and with the express understanding that (a) such information is and will remain the sole and exclusive property of AW and the AW Entities, as applicable, and (b) the Advertiser will not disclose to any third party or use for its own purposes any such information. The Advertiser shall not contact any Car Wash Location directly regarding the Advertisement(s), the Advertising Services or this Agreement without the prior written consent of AW.
17. Force Majeure. AW shall not be in breach hereunder or otherwise liable to the Advertiser due to delays caused by any factors beyond AW’s control, including, but not limited to, strikes, boycotts, war or acts or threats of terrorism, Acts of God, governmental actions, labor troubles, riots or restraints of public authority. Where possible, AW shall notify Advertiser of any such delays.
18. Acceptance by AW. This Agreement will not be binding on AW for any purpose until it has been accepted by AW; if AW rejects this Agreement, notice thereof will be sent to the Advertiser within twenty one (21) business days of execution of the Insertion Order by the Advertiser. When accepted by AW, this Agreement will constitute a binding Agreement, without need for communication of acceptance to the Advertiser.
19. Invalidity and Waiver. If any provision of this Agreement is found to be illegal, invalid, or unenforceable, such provision shall be modified to the minimum extent necessary to make such provision valid and enforceable, and the remainder of this Agreement (and such provision as so modified) shall remain in full force and effect. No waiver of rights under this Agreement by either party shall constitute a subsequent waiver of such rights or of any other right under this Agreement. The Advertiser hereby waives the right to seek specific performance of any provision of this Agreement or injunctive relief against AW relating to any provision of this Agreement.
20. Assignment. The Advertiser may not assign or transfer any of the rights conveyed in this Agreement. Without limiting the generality of the foregoing, Screening Period purchased hereunder is non-transferable. AW may freely assign or transfer any of its rights and obligations under this Agreement. Any assignment in violation of this Agreement shall be void. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon each of the parties and their respective, permitted successors and assigns.
21. No Relationship. The parties to this Agreement are independent contractors. No agency, fiduciary duties, partnership, joint venture, or employment relationship is created between parties by this Agreement, and neither party shall have the right or authority to bind the other party in any way.
22. Entire Agreement. This Agreement constitutes the entire agreement between the parties, is intended to supersede all prior agreements, understandings and representations, written or oral with respect to the Agreement, the Advertising Services and any other subject matter hereof and may not be contradicted by evidence of any other agreement, understanding or representation. The parties expressly agree that in the event of a conflict between the terms of this Agreement and the terms of any agreement, contract or insertion order provided by the Advertiser, the terms of this Agreement shall govern, notwithstanding any similar statement in such other agreement. Section headings are for convenience of reference only and shall not be deemed to alter or affect any provision hereof. Any amendment to this Agreement shall not be valid unless such amendment is in writing and signed by both parties.
23. Governing Law. This Agreement will be deemed to have been entered into in Denver, Colorado, and will be governed by and construed in accordance with the laws of the State of Colorado and County of Denver without regard to any conflict of law principles. The Advertiser agrees to submit to the exclusive jurisdiction of the federal, state, and local courts located within the State of Colorado. The Advertiser agrees that it may only bring claims against AW in courts located in the State of Colorado and County of Denver located in Denver, Colorado.