Merchant Purchase Agreement

Terms and Conditions

These Merchant Purchase Agreement Terms and Conditions (the “Terms and Conditions”) apply to the provision to and Merchant’s purchase and use of the Equipment and use of the Technology and are a part of the Agreement. We refer to you (i.e., the legal entity or sole proprietorship indicated on the Order Form) as “you” or “your” or “Merchant.” Capitalized terms not otherwise defined in the body of the Agreement or the Order Form are defined in these Terms and Conditions.

Programmatic Advertising Services and Equipment. Merchant hereby accepts from PamiTV and its third-party service providers “Programmatic Advertising Services” which include the development, deployment, activation, and management of digital signage networks (each, a “Network”), consisting of all certain software, databases, media devices, user materials and all other intellectual property needed to make a Network fully operational, including a programmatic mediation layer and digital signage control software (collectively, the “Technology”). The Technology will be provided through displays, screens, panels, and other equipment purchased by Merchant via an Order Form as contemplated under the Agreement (the “Equipment”).
LICENSE. Merchant hereby grants to PamiTV a license to place and install the Equipment at and use the Commercial Premises set forth in the Order Form for the Permitted Use. The Commercial Premise(s) of Merchant shall additionally include any additional premises of Merchant approved by PamiTV as shown in its internal records. PamiTV hereby grants Merchant a license to use the Technology via the Equipment in accordance with the terms hereof for the Permitted Use and no other use.
LICENSE RESTRICTIONS. Merchant shall not sub-license, resell, transfer or make the Technology available to or use such items on behalf of any third party. Merchant shall not change, modify, reverse engineer, decompile or attempt to expose the Technology, including its source code. Merchant shall not publish or disclose to any third party any benchmarking or comparative analysis of the Technology and any other products or services. Except for the limited license rights expressly granted to Merchant hereunder, PamiTV and its licensors reserve and retain all right, title and interest to the Technology.
TERM; TERMINATION AND PERMITTED USE. PamiTV may use the Equipment at the Commercial Premises solely for the Permitted Use set forth in the Order Form, for the Term set forth in the Order Form. The “Term” of this Agreement shall be month-to-month and continue until terminated by either party giving the other written notice of its intent not to extend and renew this Agreement at least twenty (20) days prior to the end of the then existing Term.
CONDITION OF PREMISES/UTILITIES/IMPROVEMENTS. PamiTV accepts the Commercial Premises in “as is” condition and agrees that Merchant has no obligation to improve or repair the Commercial Premises except as otherwise expressly set forth otherwise in this Agreement. Merchant agrees, at its sole cost and expense, to arrange directly with local utilities for utility and internet service providers for internet service and shall pay all costs required to establish such service and the cost of all services furnished to and/or consumed by the Equipment. Merchant shall not be liable for the quality, quantity, failure or interruption of any utility or internet services to any Commercial Premises. All signage, décor, or other improvements to be placed on or about any Commercial Premises by PamiTV shall be installed at PamiTV’s sole expense and subject to Merchant’s prior approval which approval will not be unreasonably withheld, delayed, or conditioned.
CONTENT. PamiTV shall use commercially reasonable efforts to obtain paid advertisements; provided, however, that if such paid advertising is not available after using commercially reasonable efforts, PamiTV may advertise unpaid information until such time as paid advertising is available to replace it. Merchant has the right to require PamiTV to promptly prospectively remove or recall advertising that Merchant disapproves, in its sole discretion. PamiTV agrees not to advertise on the Equipment at Merchant’s Commercial Premises on behalf of entities that Merchant has notified PamiTV in writing are directly competitive with Merchant’s business.
PERSONAL INFORMATION. The parties do not contemplate exchanging information that could be used to identify an individual (“Personal Information”) other than business contact details. To the extent that either party provides the other party with Personal Information, then the receiving party shall use such Personal Information solely for the purpose of the performance of its obligations and the exercise of its rights as expressly provided for in this Agreement. Each party shall use such Personal Information solely in accordance with the instructions of the other party and in compliance with all applicable laws and the terms of any data processing agreement entered into in writing between the parties.
INSURANCE. PamiTV shall, at its own expense, obtain and thereafter continuously keep in force during the entire Term commercial general liability insurance on an occurrence basis with a minimum combined single limit of $1,000,000 and a general aggregate limit of $2,000,000. PamiTV shall cause any contractor performing work on behalf of PamiTV at the Commercial Premises to carry insurance of such type and level as is reasonable in the circumstances.
DISCLAIMER AND LIMITATION OF LIABILITY. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, THE EQUIPMENT, TECHNOLOGY, AND SOLUTIONS PROVIDED BY AND THROUGH PAMITV ARE PROVIDED “AS IS” AND PAMITV DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, ORAL, WRITTEN, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, ACCURACY OR COMPLETENESS OF DATA OR INFORMATIONAL CONTENT, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PAMITV DOES NOT WARRANT OR GUARANTEE THAT THE OPERATION OR USE OF THE EQUIPMENT OR TECHNOLOGY WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE SOLUTION WILL MEET MERCHANT’S REQUIREMENTS. IN NO EVENT WILL EITHER PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY PAMITV TO MERCHANT IN THE ONE YEAR PERIOD PRIOR TO A PARTY BRINGING A CLAIM IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY OR FORM OF ACTION. THIS LIMITATION OF LIABILITY WILL NOT APPLY TO EITHER PARTY’S INDEMNITY OBLIGATIONS.
INDEMNITY. Each of PamiTV and Merchant (the “Indemnifying Party”) shall defend, indemnify, and hold harmless, the other party and its respective directors, officers, employees, agents, parent, subsidiaries, and other affiliates (collectively, the “Indemnified Party”), from and against any and all liabilities, damages, losses, costs and expenses, including the reasonable fees of attorneys and other professional third parties (collectively, “Losses”), arising out of or resulting from any and all third-party suits, claims, actions, proceedings or demands (“Claims”) to the fullest extent permitted by law, including Losses and Claims based upon: (a) the gross negligence or willful misconduct of the Indemnifying Party and its assistants, directors, officers, employees, agents, parent, subsidiaries, and other affiliates; (b) any breach of any covenant, or agreement made by the Indemnifying Party under this Agreement; and (c) any violation by the Indemnifying Party of any law or regulation.
MAINTENANCE OF PREMISES AND EQUIPMENT; ACCESS. Merchant shall keep and maintain the Commercial Premises and the surrounding area, including any Equipment installed therein or thereabout, neat, clean, free of debris and trash, and in good order and repair and in an attractive and clean condition. Upon fees to be agreed upon for such services, PamiTV or a PamiTV third party service provider shall notify Merchant and request access when needed, in order to install or perform maintenance on the Equipment and PamiTV or such other third party agrees to use reasonable efforts not to cause an unreasonable interference under the circumstances with Merchant’s business. Merchant agrees to notify PamiTV if it notices issues with any Equipment. Merchant will be responsible for all repairs to the Equipment. Merchant solely bears all loss for any theft of the Equipment or damage to Equipment. The Additional Equipment Terms set forth in the attached Exhibit A to these Terms and Conditions is hereby made a part of these Terms and Conditions by this reference.
PARTIES’ RELATIONSHIP. The relationship between the parties hereto is that of licensor and licensee and nothing contained herein shall be construed to create a relationship between the parties which would make either party responsible for the debts of the other. PamiTV does not and shall not claim any interest or estate of any kind in the Commercial Premises by virtue of this Agreement or its occupancy or use under this License. Furthermore, PamiTV is not Merchant’s agent, and PamiTV is not in a joint venture or partnership with Merchant (or vice-versa), both Merchant and PamiTV are independent contractors. Furthermore, Merchant is responsible for the acts or omissions of its employees and agents related to this Agreement and the use of the Equipment and Technology.
PUBLICITY. Merchant agrees that PamiTV may, without any fee payable to Merchant, include Merchant’s name and logo in PamiTV’s client list(s) and other promotional materials including without limitation verbally in media appearances made by PamiTV personnel.
WAIVER OF JURY TRIAL. The parties to this Agreement will submit all disputes arising under this Agreement to arbitration in Pinellas County, Florida, unless both parties consent to a different location, before a single arbitrator of the American Arbitration Association (“AAA”). The arbitrator shall be selected by application of the rules of the AAA. Such dispute shall be settled by arbitration in accordance with the rules for commercial arbitration of the AAA in effect at the time such arbitration is initiated, and subject further to the provisions of the Revised Florida Arbitration Code, incorporated by reference, or by mutual agreement of the parties. No party to this Agreement will challenge the jurisdiction or venue provisions as provided in this section. Nothing contained herein shall prevent the party from obtaining an injunction.
NOTICE. Any notice or other communication which any party may desire or be required to give to any other party shall be in writing and shall be sent to the other party by (i) email; (ii) prepaid certified mail-return receipt requested, or by a nationally-recognized overnight courier service, to the addresses specified in the Order Form, or to such other address as any party shall designate to the other by like notice. Said notice or other communication shall be deemed given when deposited in an official United States Post Office (as to certified mail) or the next business day (as to overnight courier and email). PamiTV may also hand deliver notice to Merchant at any of the Commercial Premises.
ASSIGNMENT. Neither party may assign this Agreement, or any of its rights or obligations hereunder (in whole or in part) except with the prior written consent of the other party; provided, however that either party shall have the right to assign this Agreement, without the other party’s consent, in whole (but not in part) (i) to a successor in interest to the business of such party (or a business line of such party in connection with a sale of assets) in connection with a merger, sale of substantially all of its assets, change of control or by operation of law, or to an affiliate, provided that: (A) the assignee agrees to assume the obligations under this Agreement and has adequate resources to meet its obligations hereunder; and (B) the assignment shall not change the scope of this Agreement. PamiTV agrees that Merchant may assign this Agreement to a successor tenant at the same Commercial Premises if the new tenant agrees in writing to assume the obligations under this Agreement and has adequate resources to meet its obligations hereunder. The terms of this Agreement shall be binding upon the permitted successors and assigns of each party.
LAWS. This License shall be governed by and construed in accordance with the laws of the state of Florida, other than its conflicts of law’s provisions.
WAIVER. Waiver by either party of any breach of any term, covenant or condition herein contained shall not be deemed a waiver of any subsequent breach of the same or any other term, covenant or condition herein.
AGREEMENT. This Agreement contains the entire agreement between the parties, and all prior understandings and agreements, written or oral, between the parties are merged into this Agreement. This Agreement may be changed or modified only by a writing executed by the party against whom enforcement thereof is sought.
TIME OF ESSENCE. Time is of the essence of this License Agreement and of each and every provision hereof of which time is an element.
FORCE MAJEURE. If the performance of any obligation hereunder is interfered with by reason of any circumstances beyond a party’s reasonable control, including but not limited to acts of God, labor strikes and other labor disturbances, power surges or failures, or the act or omission of any third party, the party shall be excused from such performance to the extent necessary, provided the party shall use reasonable efforts to remove such causes of nonperformance.

EXHIBIT A

ADDITIONAL EQUIPMENT TERMS

Merchant expressly covenants and agrees, at all times during the Term, to the following:

Installation, Condition of and Repair and Maintenance and Repair of Equipment. Upon fees to be agreed upon for such services, Merchant may request PamiTV or its third party contractors to deliver and/or install the Equipment. Merchant shall have available and provide suitable power to the Equipment. In addition to power, Merchant is solely responsible for cabling and security of its internet network. Merchant agrees to notify PamiTV of network changes, password changes, and the operational condition of utilities and internet services. In the event a display is non-operational (e.g., black screen, solid screen, off screen) the Merchant agrees to promptly notify PamiTV and in their best efforts assist PamiTV to resolve the non-operational condition to a connected status. Notwithstanding the above, Merchant and not PamiTV is responsible for any maintenance or repairs to the Equipment. In addition, Merchant will provide a site survey and PamiTV will provide commercially reasonable assistance to Merchant during the survey process.
Security of Commercial Premises and Equipment. Merchant, and not PamiTV, shall be responsible for and shall secure and protect the Commercial Premises and the Equipment.
Adherence to Laws. Merchant is solely responsible for adherence to local, state and federal laws and ordinances regarding the installation and use of digital signage at each of its Commercial Premises. This includes permitting and licensing as required thereto.
Display Visibility and Uninterrupted Operation of the Equipment and Technology. Merchant agrees not to block the line of sight of the digital displays of the Equipment or inhibit the full functionality of the Equipment and Technology. Merchant further agrees to not un-plug the digital display hardware and/or Equipment and also inform PamiTV if power has been lost to the digital display and/or Equipment or if the Equipment and/or Technology is otherwise non-operable.