UPshow Operator Agreement

last updated 3/18/2017

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 Services directly to any business referred by Operator that has entered into a Subscriber Agreement (defined below) and to which UPshow provides the UPshow Service and/or TouchTunesTV under such agreement (each, a "Subscriber") and potential Subscribers and (b) to make copies of the means the user manuals and other published materials for the Services that UPshow generally makes available to Subscribers and distribute the same as necessary to support Subscriber’s authorized use of the Services. [Note: Seems like a trademark license is required for Operator to market the service.]

2. Term.  Operator’s engagement with UPshow is subject to termination by Operator or UPshow at will, with or without cause, upon ten (10) 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.  [Note: Allowing UPshow to terminate without cause at any time will create issues with Operator unless there is an appropriate tail whereby Operator continues to get paid for its referrals for a period of time following termination. Also consider a longer time frame to terminate as 10 days is very short – maybe 60 days.]  

3. Compensation and Payment.  

(a) Pricing. Pricing and terms of sale for the UPshow Service and TouchTunesTV 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 Services and 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 Pricing List for any documented quotes or proposals issued to prospective Subscribers prior to the issuance of the replacement Price List. [Note: Consider if we provide an initial fixed period of time where no price changes or Service changes can be made].

(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 venue (collectively the "Hardware") [Note: If hardware might change over time then type of hardware should be on price list so that it can be changed from time to time] exceeds the prices set forth on the Price List for the UPshow Service and/or TouchTunesTV plus such prices for rental of the Hardware.  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) 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 is defined as a Subscriber or potential Subscriber that is primarily in the business of serving patrons beer and/or spirits in the United States and Canada (the "Territory") and which is owned, operated and/or controlled by partners or entities that own, operate or control ten or less venues under a common brand; or in "Other Venues" which is defined as any customer not in the Independent Bar Space, by express and separate agreement between UPshow and Operator [Note: we may consider making the process clearer for Independent Bar Space vs Other Venues];

(b) locate, investigate and refer potential Subscribers to UPshow and all Subscribers referred by Operator will be designated by UPshow as having been referred by Operator and shall complete a basic single sheet referral form used to identify a potential lead for UPshow.  The referral form will include a designated code to identify Operator as the referring party and receive compensation under this Agreement.  [Note: there should be some process for Operator to submit a referral with the terms negotiated with to UPshow and for UPshow to give credit to Operator for the referral based on that submission and also to tag the referral as Operator's referral]. 

(c) Identify target 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. [Note: Is the Operator always installing the Hardware?]

[Note:  Operator will want to know if the referral counts for them – consider something like the following:  If a potential Subscriber is referred by Operator, such referral shall be deemed be a "Subscriber" if such referral (i) has not entered into Subscriber Agreement with UPshow during the prior 12 months, (ii) has not been previously referred to UPshow in writing by any other person during the prior 12 months and (iii) UPshow enters into a Subscriber Agreement with such referral during the one (1) year period following the referral.]

5. Hardware. Operator may in some cases be responsible for receiving the Hardware shipped from UPshow for use with Subscribers 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 of an Event of Default (as described below) by an Operator Subscriber, Operator shall, upon request by UPshow, remove the Hardware from such Subscriber at Operator’s sole reasonable expense, which shall be returned to UPshow at UPshow's reasonable expense.  [Note: How are you dealing with the possibility of Operators asking for inventory and potential deposits?].

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

(a) Provide Operator with training for recruitment of potential 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’s customer support hotline, email and live chat (collectively, the "Support Hotline") shall be accessed via a toll free telephone number and via the following web address: [Note: Number needs to be included; how is it being handled for Operator to call TouchTunes as we will handle Operator calls].

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

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

7. Exclusivity. During the Term, Operator agrees to act as an exclusive dealer and third-party facilitator of business development, marketing and distribution for UPshow of its social media and spotlight marketing display advertising and venue messaging service, including the UPshow Service and TouchTunesTV.  [Note: to discuss as Operators already sell competing products and this is a broad definition so would pick up a wide range of products for Operator – TouchTunes does not require exclusivity from Operators].

8. Scope of Warranties.  Each Subscriber shall contract directly with UPshow to be a receive the UPshow Service and/or TouchTunesTV. Operator makes no representation or warranty, express or implied, with respect to any potential Subscriber including, but not limited to, said potential Subscriber’s creditworthiness or the nature of its business. UPshow shall have no liability for any decision to not accept a referral as a Subscriber.

9. 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.

10. Events of Default.

(a) Cessation/Death/Incapacity. This Agreement shall terminate automatically upon the cessation of business by Operator 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.

11. 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 UPshow equipment; and (iii) each Party shall return the Confidential Information of the other Party 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 a 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 was terminated by UPshow pursuant to Section 10(b) above. [Note: per note above consider provision to handle a termination without cause.]

12. Confidentiality.

a. Operator agrees that during the course of this Agreement, information that 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 the providing party.  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.  [Note: Operator may be concerned about confidentiality given that they are referring their customer to UPshow and also they will not want a location to know the wholesale price].

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.

13. 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.  Any terms of this Agreement that by their nature extend beyond termination will survive termination of this Agreement for any reason.

14. Notices.

Any notice or other communications required or permitted hereunder shall be in writing 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), or (iii) on the next business day, if mailed by an overnight mail service or sent by facsimile transmission as set forth on the signature page below. [Note: Not all operators will use the portal so consider adding email notice] or at such other address or telecopy number (or other similar number) as either Party may from time to time specify to the other in writing.  Any notice, consent or other communication required or permitted to be given hereunder shall have been deemed to be given on the date of mailing, personal delivery or telecopy or other similar means (provided the appropriate answer back is received) thereof and shall be conclusively presumed to have been received on the second business day following the date of mailing or, in the case of personal delivery or telecopy or other similar means, the day of delivery thereof, except that a change of address shall not be effective until actually received.


16. 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.

17. 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. [Note: you might want to put in a compliance with laws representation from Operator].

18. 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.

19. 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.

20. 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. 

21. 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.

22. 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.

23. 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.