UPshow Operator Agreement

 
last updated 4/14/2017

UPshow, Inc. ("UPshow") and the Operator or the Operator Company ("Operator") (collectively, the "Parties") agree that the following terms and conditions (this "Agreement") will govern Operator's marketing and distribution of UPshow's social media and spotlight marketing display advertising and venue messaging service (the "UPshow Service") and equipment for the streaming of such content and social media from a media player. The UPshow Service may be marketed and distributed with a music service, which collectively shall be referred to as "TouchTunesTV".


1. General. 

(a) UPshow and Operator agree that Operator’s marketing and distribution of the UPshow Service and TouchTunesTV shall be subject to this Agreement, and this Agreement, together with any other documents entered into hereunder and/or otherwise referred to herein shall be the exclusive terms with respect thereto, and that the terms and conditions contained in this Agreement represent the final and complete contract between the Parties.

(b) Subject to the terms and conditions of this Agreement, UPshow hereby grants to Operator, during the term of this Agreement and in the Territory, a non-exclusive and non-transferable right to (a) promote, market, and resell the UPshow Service and/or TouchTunesTV directly to any Subscriber or Prospective Subscriber (each as defined below) in the Independent Bar Space (as defined below in section 4(a)); and (b) make copies of the user manuals and other published materials for the UPshow Service that UPshow generally makes available to Subscribers and distribute the same as necessary to support a Subscriber’s authorized use of the UPshow Service and/or TouchTunesTV. A "Subscriber means any customer venue that enters into an agreement with UPshow (the "Subscriber Agreement") and a “Prospective Subscriber” means any customer venue that may enter into a Subscriber Agreement.


2. Term. Operator’s engagement with UPshow is subject to termination by Operator or UPshow at will, With Cause (defined in section 8(c) below) upon ten (10) days’ prior written notice or Without Cause, upon thirty (30) days’ prior written notice (the "Term"). Nothing in this Agreement shall be interpreted to be in conflict with or to eliminate or modify in any way the engagement-at- will status of each Party. This section shall be subject to the terms of sections 8 and 9 below.  


3. Compensation and Payment.  

(a) Pricing. Pricing and terms of sale for the UPshow Service and TouchTunesTV and the Hardware (defined in section 3(b) below) shall be set forth in the price list from time to time by UPshow (“Price List”). The initial Price List is set forth on Exhibit A to this Agreement. UPshow may, from time to time and in its sole discretion, establish, change, alter, add, discontinue or amend prices, the UPshow Service and/or terms of sale by written notice to Operator. Such changes will be effective no sooner than thirty (30) days following UPshow’s written notice of such changes to Operator. Notwithstanding the foregoing, UPshow will honor the pricing in the prior Price List for any documented quotes or proposals issued to Prospective Subscribers prior to the issuance of the replacement Price List.

(b) Operator Fee. Operator shall receive a fee (the "Fee") equal to the amount by which the (i) monthly subscription fee amount and (ii) fees generated from the use of hardware (e.g., televisions) or peripheral hardware components (such as AC Cables, power supply and/or splitters) used to display the UPshow Service and/or TouchTunesTV in a customer venue (collectively the "Hardware") exceeds the prices set forth on the Price List for the UPshow Service and/or TouchTunesTV plus the prices for rental of the Hardware as set forth on the Price List. Such amounts do not include any applicable tax. Operator shall have discretion in establishing the monthly subscription fee and Hardware rental fee, not to be below the amounts set forth on the Price List.   

(c) Payment Terms and Reports. UPshow shall pay Operator its Fee within thirty (30) days after the end of each calendar month by direct deposit. The manner of payment from UPshow to Operator may be changed in UPshow’s sole discretion upon no less than thirty (30) days prior written notice. In the event a Subscriber fails to pay UPshow or UPshow otherwise becomes obligated to make a payment or has an outstanding indebtedness arising from the Subscriber or Operator, UPshow may, in its sole discretion and upon five (5) days' prior written notice to Operator, offset the Fee against any such outstanding payment or indebtedness. 

(d) TouchTunesTV Partner Portal. Operator shall submit all referrals of Subscribers and Prospective Subscribers through the TouchTunesTV Partner Portal or as otherwise agreed by the Parties in writing.

(e) Taxes. Each Party shall be responsible for and pay any and all applicable taxes, customs, withholding taxes, duties, assessments and other governmental impositions resulting from its receipt of payments under this Agreement, as applicable. 


4. Duties of Operator. During the Term, Operator shall:

(a) Act as a third-party facilitator of business development, marketing and distribution of the UPshow Service and TouchTunesTV. Subject to the authority and direction of UPshow, Operator shall have the duties, authorities and responsibilities for the sales and customer support efforts, in the "Independent Bar Space", which means a Subscriber or Prospective Subscriber that is primarily in the business of serving patrons beer and/or spirits in the United States and/or Canada (the "Territory") and which is owned, operated and/or controlled by partners or entities that own, operate or control ten or less venues; or in "Other Venues" which is defined as any customer not in the Independent Bar Space, which in UPshow’s discretion may be bound by the terms herein or by a separate written agreement between UPshow and Operator. If UPshow does not provide notice to the Operator to elect to negotiate a separate agreement within ten (10) days of the referral for any Other Venue, then the referral shall be bound and subject to the terms of this Agreement;

(b) Locate, investigate and refer Prospective Subscribers to UPshow via the TouchTunes TV Partner Portal. The TouchTunes TV Partner Portal will include a designated code to identify Operator as the referring party to receive compensation under this Agreement; 

(c) Identify target Prospective Subscribers, prepare pitch materials, organize and facilitate sales calls and meetings, structure sales and licensing deals, report and present during sales and business development meetings, identify opportunities for strategic partnerships and perform such other duties and exercise such other authorities as agreed upon by the Parties from time to time; and

(d) Install and, at the request of UPshow, remove Hardware related to the UPshow Service and/or TouchTunesTV.


5. Hardware. Operator may in some cases be responsible for receiving the Hardware shipped from UPshow for use by Subscribers referred and procured by Operator. Operator shall be responsible for all loss and damage to Hardware while in its possession. UPshow shall require Operator to maintain a credit card on file, which UPshow in its discretion may use to apply for any loss or damage to the Hardware while in its possession. UPshow may in its discretion, require Operator to provide a cash deposit to be held during the Term to cover any and all losses or damage to the Hardware while in its possession. In the event Operator requests to maintain an inventory of the Hardware, UPshow, may in its discretion, provide Hardware to Operator. If the Operator maintains an inventory of Hardware, UPshow shall hold a deposit in an amount determined by UPshow for the inventory held by the Operator. In the event Operator ceases to maintain Hardware inventory, UPshow shall, subject to the terms herein, return the deposit to Operator. In the event of an event of default by a Subscriber, Operator shall, upon request by UPshow, remove the Hardware from such Subscriber’s venue at Operator’s sole reasonable expense, which shall be returned to UPshow at UPshow’s reasonable expense.


6. Duties of UPshow. During the Term, UPshow shall:

(a) Provide Operator with training for recruitment of Subscribers and Prospective Subscribers and marketing and sales materials as reasonably requested by Operator. UPshow shall make available all sales tools to Operator that UPshow generally makes available to UPshow’s customers, including Demo Creator and UPshow Clerk; 

(b) Provide customer support for Operator. UPshow will make technical support for the UPshow Service and TouchTunesTV available to Operator via a customer support hotline, email and live chat (collectively, the “Support Hotline”). The Support Hotline may be accessed at (888) 338-5853 or (847) 419-3300 (via TouchTunes Music Corporation), the live chat shall be accessed at https://www.upshow.tv/partner-support (via UPshow) and the email shall be accessed at support@upshow.tv (via UPshow), provided that Operator shall not disclose the technical support telephone numbers to any Subscriber or any other person. UPshow may change such telephone numbers, live chat or email address by notice via the TouchTunesTV Partner Portal;

(c) Receive and evaluate all referrals and promptly approve or deny them in accordance with its credit policy and in its discretion;

(d) Use commercially reasonable efforts to enter into Subscriber Agreements with the Prospective Subscribers and provide the Hardware pursuant to the terms Operator has agreed to with such Prospective Subscribers and provided to UPshow for such Prospective Subscribers; and

(e) Provide Operator with written evidence within twenty (20) days of any referral by Operator of a Prospective Subscriber that such Prospective Subscriber had a pre-existing relationship with UPshow. If such evidence is not provided in the required time frame, then such Prospective Subscriber will be deemed a "Prospective Subscriber" for purposes of this Agreement. 


7. No Agency, Joint Venture, or other Relationship. The Parties acknowledge that they will not hold themselves out as an agent, partner or co-venturer of the other and that this Agreement is not intended and does not create an agency, partnership, joint venture or any other type of relationship except the contract relationships which result from the acceptance of a request for assistance.


8. Events of Default.

(a) Cessation/Death/Incapacity. This Agreement shall terminate automatically upon the cessation of business by Operator or UPshow or upon the death or incapacity of Operator if Operator is a sole proprietor.

(b) Breach. This Agreement may be terminated by either Party upon a breach of a material term or condition of this Agreement which is not cured within ten (10) business days from written notice from the non-breaching party.

(c) Termination For Cause. In the event Operator engages in conduct that has a materially adverse effect upon the business of UPshow, either through its conduct or representations, UPshow may terminate the Operator and cease making further payments to Operator under this Agreement upon ten (10) days written notice pursuant to section 12 below. A termination pursuant to Section 8(b) and (c) by UPshow shall be considered for "Cause".


9. Obligations upon Termination. 

(a) Upon termination of this Agreement, (i) neither Operator nor UPshow shall have any further obligations under this Agreement, except for the obligation to pay Operator for any unpaid services rendered and any approved and unpaid expenses incurred prior to such termination, as well as any obligations under Sections 5 through 11 of this Agreement; (ii) Operator shall return all Hardware in its possession to UPshow; and (iii) Operator shall return any Confidential Information in its possession to UPshow within thirty (30) days at its own expense.

(b) Upon termination or expiration of this Agreement, Operator shall continue to receive any Fees until the expiration or termination of the applicable Subscriber Agreement (as may be amended or extended from time to time). Notwithstanding the foregoing, UPshow shall have no obligation to pay Operator any Fees if this Agreement is terminated by UPshow for Cause.


10. Confidentiality.

a. Operator agrees that during the course of this Agreement, it may have access to UPshow’s confidential or proprietary information, including without limitation software (in both source code and object code form), processes, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections and marketing data ("Confidential Information"). Confidential Information shall not include information that the receiving party can demonstrate: (a) is, as of the time of its disclosure, or thereafter becomes, part of the public domain through a source other than the UPshow; (b) was known to Operator as of the time of its disclosure; (c) is independently developed by Operator; or (d) is subsequently learned from a third party not under a confidentiality obligation to UPshow. Operator agrees that, except as permitted by this Agreement, it shall not make any disclosure of the Confidential Information other than to its employees who have a need to know such information in connection with this Agreement, which employees shall be notified of the confidentiality obligations with respect to the Confidential Information. The confidentiality obligations of Operator and its respective employees shall survive the expiration or termination of this Agreement.

b. Operator recognizes and acknowledges the competitive value of UPshow’s Confidential Information. Operator further acknowledges that substantial damages would result if the Confidential Information was impermissibly disclosed by Operator or its employees to any third party or impermissibly used by a third party after receiving it from Operator in violation of this Agreement. In addition, Operator acknowledges the special and unique value of the Confidential Information and hereby acknowledges and agrees that in the event Operator breaches this Agreement, Operator shall be entitled to, in addition to and not to the exclusion of any other available remedy, immediate temporary, preliminary and/or permanent injunctive relief.


11. Successors; Binding Agreement; Survival

This Agreement is personal to Operator and, without the prior written consent of UPshow, shall not be assignable by Operator. UPshow shall be permitted to freely assign its rights, interests and obligations to any parent, subsidiary or affiliate, or to any other third party, which acquires all or substantially all of the stock or assets of UPshow. This Agreement shall inure to the benefit of and be enforceable by Operator’s successors and assigns. Sections 9, 10, 13, and 14 shall survive termination of this Agreement.


12. Notices.

Any notice, consent or other communications required or permitted hereunder shall be in writing to the addressee as set forth on the signature page of this Agreement (or to such other address or facsimile number as either Party may hereafter specify for such purpose by notice given in accordance with this section 12) and shall be deemed effective (i) upon personal delivery, if delivered by hand and followed by notice by mail or facsimile transmission, (ii) three (3) days after the date of deposit in the mail, if mailed by certified or registered mail (return receipt requested), (iii) on the next business day, if mailed by an overnight mail service or sent by facsimile transmission; or (iv) on the same day if a business day or if not a business day or after 5pm CT on any business day, then the next business day, if via the TouchTunesTV Partner Portal.


13. LIMITATION OF LIABILITY. UPSHOW SHALL HAVE NO LIABILITY TO OPERATOR UNDER THIS AGREEMENT OR OTHERWISE FOR ANY LOSS OR INJURIES TO EARNINGS, PROFITS OR GOODWILL, OR FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES OF ANY PERSON OR ENTITY, EVEN IF UPSHOW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF UPSHOW TO OPERATOR FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL NOT EXCEED THE LESSER OF OPERATOR’S ACTUAL AND DIRECT DAMAGES OR THE AMOUNTS PAID TO OPERATOR BY UPSHOW UNDER THIS AGREEMENT DURING THE 12 MONTH PERIOD THAT PRECEDES THE DATE THE CAUSE OF ACTION AROSE.


14. Indemnification. Operator agrees to indemnify, defend, and hold harmless UPshow, its directors, officers, employees, agents and any other of UPshow's representatives and/or employees, and to defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including attorneys’ fees, to the extent that such action claim, demand, cause of action, debt or liability (i) arises as a result of acts or omissions of Operator, its employees or agents relating to the breach of Operator's obligations under this Agreement; (ii) relates to any inaccuracy in or breach of any of Operator's representations or warranties hereunder; or (iii) otherwise arises out of the negligence or willful misconduct of Operator.


15. Operator Representations and Warranties. Operator represents and warrants that it has the legal power and authority to enter into this Agreement. Operator represents and warrants that it has not falsely identified itself nor provided any false information to gain access to the UPshow Service and/or TouchTunesTV. Operator further represents and warrants that it will comply with all applicable local, federal and state laws and regulations related to its obligations hereunder.


16. Headings; Counterparts; Modifications and Waivers. The headings of this Agreement are for convenience of reference only and shall not affect in any manner any of the terms and conditions hereof. This Agreement may be executed in two counterparts, each of which shall be deemed an original and both of which together shall constitute one and the same agreement. No term, provision or condition of this Agreement may be modified or discharged unless such modification or discharge is agreed to in writing and signed by both Parties. No waiver by either Party hereto of any breach by the other Party hereto of any term, provision or condition of this Agreement to be performed by such other Party shall be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time.


17. Attorney Fees. Default by either Party to this Agreement shall entitle the non-defaulting Party to all costs and reasonable attorneys’ fees incurred by the non-defaulting party in enforcing the provisions of this Agreement.


18. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter herein and supersedes all prior agreements, negotiations and discussions between the Parties, there being no extraneous agreements. 


19. Performance. UPshow shall not be responsible for non-performance or delays occasioned by any cause beyond UPshow’s reasonable control, including, but not limited to, labor difficulties, delays of vendors or carriers, fires, governmental actions and material shortages, including, without limitation, any delay, downtime, malfunction or other outages of any social networking websites.


20. Severability. Each condition is a separate covenant and the invalidation of any provision, by a court or otherwise, shall not affect the other terms and conditions in this Agreement.


21. Applicable Law. This Agreement shall be governed by the laws of the State of Illinois, without regard to its conflict of laws provisions, and Operator and UPshow agree that the sole venue and jurisdiction for disputes arising from this Agreement shall be the appropriate state or federal court located in the City of Chicago, Illinois, and Operator and UPshow hereby submit to the jurisdiction of such courts.