Distribution Services Agreement
THIS DISTRIBUTION SERVICES AGREEMENT (the "Agreement") is made this
___7th__ day of September, 2005 by and between ICOA, INC., a Nevada corporation
("ICOA") and OOH! TV, Inc., a Maryland corporation ("OOH").
WHEREAS, ICOA is a neutral-host broadband wireless Internet network
provider for operators of airports, QSRs, metro zones, marinas, convention
centers and other high-traffic public locations; and
WHEREAS, OOH is developing a web portal for the delivery of content
targeted at wireless Internet users; and
WHEREAS, OOH wishes to engage ICOA to provide access to the OOH mobile
web portal through ICOA's networks; and
WHEREAS, ICOA has agreed to provide such services to OOH on the terms
and conditions set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Definitions.
A. ICOA Network - Wired or wireless infrastructure owned
and/or controlled by ICOA that provides access to the Internet. Venues
that offer services through the ICOA Network consist of various brands.
B. ICOA Affiliate Network - Wired or wireless infrastructure
that provides access to the Internet where (a) such infrastructure is
not owned or ultimately controlled by ICOA, and (b) ICOA provides one
or more services for the owner of the affiliate network, and ICOA may
desire to deliver OOH Pages on the Affiliate Network,
C. OOH Page(s) - One or more web pages hosted by OOH and
delivered through (a) ICOA's Network and (b) ICOA's Affiliate Network,
under the terms of this Agreement. The format and content of the OOH
Page shall meet the specifications on Appendix A.
D. Landing Page -A web page presented to end users of the ICOA
Network or ICOA Affiliate Network immediately following their
successful log-in .
E ICOA Portal - One or more web pages presented to end users
of the ICOA Network or ICOA Affiliate Network that allows the end user
to create an account, log into the system, and perform similar
functions.
F. Whitelisted Pages - Web pages that are viewable by an
end-user even if they have not authenticated via the ICOA Portal.
2. OOH Page Delivery
OOH shall, at its sole cost, be responsible for hosting, development,
and delivery of the OOH Pages. OOH shall use it best efforts to insure
that, except for scheduled maintenance, OOH Pages are available 24
hours /day, 365 days/year. Scheduled maintenance activities which will
disrupt delivery on OOH Pages shall be coordinated between OOH and
ICOA, to minimize the disruption to the ICOA Network and the ICOA
Affiliate Network.
3. ICOA Portal Promotion
A. ICOA shall, on a non-exclusive basis, provide one or more
places on the ICOA Portal for the placement of a banner advertisement
for OOH Pages ("OOH Portal Banner"). The format and placement of the
banner advertisement will be determined by mutual agreement of both
Parties.
B. Upon mutual agreement by both Parties, different OOH Portal
Banners may appear on different ICOA Portals or ICOA Affiliate Portals.
B. The OOH Portal Banner shall be hosted by OOH.
C. The OOH Portal Banner may be changed from time-to-time by
OOH, provided that any OOH Portal Banner must be approved by ICOA. Such
approval will not be unreasonably withheld. Although the graphic itself
may change, it is anticipated that the name associated with the OOH
Portal Banner and the format of this banner will not be changed once it
has been placed on the ICOA Portal.
D. The OOH Portal Banner may, at OOH's request, be linked to a
Whitelisted web page ("Portal OOH Page"). The URL of the Portal OOH
Page will not change once it has been placed on the ICOA Portal.
E. In order to support advertising requirements, additional
Whitelisted pages may be linked to the Portal OOH Page. OOH will work
with ICOA to minimize implementation activities required by ICOA when
changes are made to this list of Whitelisted Pages.
4. Landing Page Presentation
A. ICOA shall use its best reasonable efforts to secure rights
to present a Landing Page to end users of the ICOA Network or ICOA
Affiliate Network. For purposes of this Xxxxxxx 0, "XXXX" shall include
any existing or future subsidiaries, licensees, or affiliates of ICOA.
B. When requested by ICOA, OOH shall provide an OOH Page to be
used as the Landing Page for an ICOA specified location.
5. Advertising Sales
A. OOH shall be responsible for the sale of advertising on OOH
Pages. OOH shall use its best reasonable effort to obtain one paid
advertiser for the OOH Pages prior to September 30, 2005.
B. In the event that OOH has unsold advertising space on the
OOH Pages, ICOA may, upon mutual agreement by both parties, provide
advertising for these pages. ICOA will be responsible for any fees
required by OOH's advertising partners in relation to this advertising.
Advertising Commissions.
A. OOH shall pay ICOA a commission in the amount of 50% of the
Net Advertising Revenue received by OOH in connection with the OOH Page
(the "Commissions"). For purposes of this Agreement, "Net Advertising
Revenues" shall mean gross revenues received from national
sponsorships, and ad scripts on the OOH Page less any advertising
agency commissions or similar fees paid by OOH; provided, that such
commissions or fees paid to affiliates of OOH or its principals shall
not be considered to the extent they exceed the average of such
commissions or fees paid to non-affiliates or of industry standard
commission or fee rates. In the event that OOH has agreements with
other wireless Internet providers who are not part of the ICOA Network
or the ICOA Affiliate Network, OOH will pay ICOA its proportionate
share of Net Advertising Revenues based on end user traffic to the OOH
Page. The Commissions shall be due and payable on or about the
twentieth (20th) day following receipt of payment from advertising
partners by OOH. OOH shall provide accountings to ICOA with respect to
calculation of the Commissions. ICOA shall have the right to verify
from time to time, upon not less than 10 days' prior notice to OOH, the
accuracy of all accounting reports and payments made by OOH under this
Agreement, through an inspection of OOH's pertinent records and books
of account. The cost of such inspection shall be borne by ICOA, unless
such inspection reveals a greater than five percent (5%) understatement
of the amounts due to ICOA, in which case the cost of such inspection
shall be borne by OOH. OOH's obligations to pay the amounts set forth
in this Agreement shall survive the termination of this Agreement, but
only to the extent the obligation to pay such amount is properly
attributed to a period of time prior to the termination of this
Agreement.
B. To the best of ICOA's ability, ICOA shall provide to OOH,
monthly all information OOH shall reasonably request to verify the
number of views, and other information OOH's advertising clients may
need with regard to their ads on OOH's page. OOH shall have the right
to verify from time to time, upon not less than 10 days notice to ICOA,
the accuracy of all such reports through an inspection of ICOA's
pertinent records and books of account. The cost of such inspection
shall be borne by OOH, unless such inspection reveals a greater than
five percent (5%) error, in which case the cost of the inspection shall
be borne by ICOA.
6. Landing Page Location Payment
A. OOH shall pay ICOA a one-time startup fee for each ICOA
location where an OOH Page is used as a Landing Page ("Location Payment
Fee"). The Location Payment Fee is location specific and is specified
in Appendix B.
B. Not withstanding the previous paragraph, all Location
Payment Fees shall be doubled if the OOH Page is used as a Landing Page
within 90 days of the Effective Date.
C. Location Payment Fees are due within 20 days of ICOA's
notification and invoicing to OOH that an OOH Page is available at a
location as that location's Landing Page.
7. Implementation Payment
OOH shall pay ICOA a one time implementation payment of eight hundred
dollars ($800). This payment shall be due upon the linking of the first
OOH page to the ICOA system.
8. Term.
A. The initial term of this Agreement will be for the period
of one (1) year from the Effective Date and will automatically renew
for successive one (1) year periods unless terminated by either party
as provided for herein. The "Effective Date' shall be the date that OOH
notifies ICOA in writing that the OOH Page is fully functional and
available to ICOA for the purposes set forth in this Agreement.
Notwithstanding the foregoing, if the Effective Date has not occurred
by October 30, 2005, either party shall have the right to terminate
this Agreement and neither party shall have any obligation or liability
to the other party.
B. Either party may terminate this Agreement with immediate
effect if the other party fails to cure an "Event of Termination"
within thirty (30) days of notice from the other party. An "Event of
Termination" means (a) breach of a material obligation hereunder or (b)
voluntary or involuntary liquidation; (c) bankruptcy proceedings or
other legal proceedings; (c) appointment of a receiver over the whole
or part of a party's business; or (d) if any content on an OOH Page
violates any law or governmental regulation, violates or infringes any
right of any third party, contains pornographic material or subjects
ICOA or such third party to liability or adverse publicity ( in which
case ICOA may terminate this Agreement in its entirety or with regard
to such third party and its locations).
9. Representations.
A. ICOA represents and warrants to OOH that: (a) it is duly
organized, validly existing and in good standing under the laws of its
state of organization, (b) it has full power and authority to execute,
deliver and perform this Agreement, (c) this Agreement has been duly
authorized, executed and delivered by ICOA and is a legal, valid and
binding obligation of ICOA in accordance with the terms hereof, and (d)
it will conduct all activities under this Agreement in full compliance
with all applicable laws and regulations.
B. OOH represents and warrants to ICOA that: (a) it is duly
organized, validly existing and in good standing under the laws of its
state of organization, (b) it has the power and authority to execute,
deliver and fully perform its obligations under this Agreement, (c)
this Agreement has been duly authorized, executed and delivered by OOH
and is a legal, valid and binding obligation in accordance with the
terms hereof and (d) it will conduct all activities under this
Agreement in full compliance with all applicable laws and regulations.
OOH further represents and warrants to ICOA that, subject to the
following sentences, the OOH Page and any content or technology created
or used or provided by OOH does not and will not infringe any
proprietary right of any third party, including, without limitation,
any copyright, trademark, patent or trade secret, or that violates any
law or governmental regulation.
C. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER
PARTY MAKES, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS, ANY
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING ANY MATTER
SUBJECT TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND
IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF
PERFORMANCE.
10. Trademarks.
The parties agree that they may use each other's name and logos for
advertising and marketing purposes; provided, however, that any such
use must be pre-approved in writing, such approval will not be
unreasonably withheld or delayed. The parties acknowledge and agree
that the parties trademarks, service marks, copyrights, logos, slogans
and trade-names and all other intellectual property (collectively the
"Trademarks") shall at all times remain the property of the respective
parties, that each has title to only their own Trademarks, and that
each party has the right to control the use of their own Trademarks and
to take all appropriate measures for their protection. Neither party
may use the other's Trademarks except as specifically authorized by the
appropriate party, and both parties shall cooperate fully with each
other at their own respective expense, in any actions against third
parties in defense and protection of the Trademarks.
11. Confidentiality.
Each party acknowledges and agrees that any and all information
relating to the other party's business and not publicly known
including, without limitation, the contents of this Agreement,
technical processes and formulas, trade secrets, names, addresses and
information about users and advertisers, product designs, sales, costs
and other unpublished financial information, product plans, and
marketing data is confidential and proprietary information. Each party
agrees that it will not use or disclose any confidential or proprietary
information for any purpose other than in connection with the
performance of and obligations under the terms and conditions of this
Agreement or as required by a court of competent jurisdiction.
12. Indemnification.
Each party agrees to defend, indemnify and hold the other party and
such other party's parent subsidiary and affiliated companies and the
directors, officers, employees and agents of each, harmless from and
against any and all third party claims, damages, liabilities, costs and
expenses, including but not limited to reasonable attorney's fees and
expenses, arising from or relating to any breach of the indemnifying
party's obligations, covenants, agreements, warranties or
representations hereunder. Each party agrees to (a) promptly notify the
other party in writing of any indemnifiable claim or demand and (b)
give the other party the opportunity to defend or negotiate a
settlement of any such claim or demand at such other party's expense
and cooperate fully with the other party, at that other party's
expense, in defending or settling such claim or demand. The
indemnifying party will not settle a claim or demand for the
indemnified party without the prior written consent of the indemnified
party, which consent shall not be unreasonably withheld. Each party
reserves the right, at its own expense, to participate in the defense
of any matter otherwise subject to indemnification by the other party.
The representations, warranties and indemnities of the parties
hereunder shall survive the expiration or earlier termination of this
Agreement.
13. Notices.
Any notice required or permitted by this Agreement shall be in writing
and shall be deemed sufficient upon receipt, when delivered personally
or by courier, overnight delivery service or confirmed facsimile, or
forty-eight (48) hours after being deposited in the regular mail as
certified or registered mail with postage prepaid, if such notice is
addressed to the party to be notified at such party's address or
facsimile number as set forth below, or as subsequently modified by
written notice:
If to ICOA:
Xxxxxxx Xxxxxxxxxx
000 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Fax: 000-000-0000
With a copy to
Xxxxxx X. Xxxxxx
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Fax: 000-000-0000
If to OOH:
Xxxx Xxxxxx
0000 Xxxxxxxxxxxx Xxxxx Xxx 000
Xxxxxxxx, XX 00000
Fax: 000-000-0000
With a copy to:
Xxxxxx Xxxxxx
Sack & Xxxxxx
0000 Xxxxxxxxxx Xxxxx Xxx 000
XxXxxx, XX 00000
Fax: 000-000-0000
14. Waiver.
The waiver by either party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any
subsequent breach by either party.
15. Successors and Assigns.
This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and permitted
assigns; provided, however, that this Agreement may not be assigned, in
whole or in party, by either party, voluntarily or by operation of law,
without the prior written consent of the other party, which shall not
be unreasonable withheld, conditioned, or delayed.
16. Entire Agreement.
This Agreement constitutes the entire Agreement between the parties and
there are no representations, warranties, covenants or obligations
except as set forth herein. This Agreement supersedes all prior and
contemporaneous agreements, understandings, negotiations and
discussions, written or oral, of the parties hereto, relating to the
services contemplated by the Agreement. Except as otherwise especially
provided herein, nothing in this Agreement is intended or shall be
construed to confer upon or to give any person other than parties
hereto any rights or remedies under or by reason of this Agreement.
17. Amendment.
No change, amendment or modification of any provision of this Agreement
shall be valid unless set forth in a written instrument signed by both
parties.
18. Construction.
In the event that any provision of this Agreement conflicts with the
law under which this Agreement is to be construed, or if any such
provision is held invalid by a court with jurisdiction over the parties
to this Agreement, such provision shall be deemed to be restated to
reflect as nearly as possible the original intentions of the parties in
accordance with the applicable law and the remainder of this Agreement
shall remain in full force and effect. There shall be no presumption
for or against either party as a result of such party being the
principal drafter of this Agreement.
19. Independent Contractors.
The parties to this Agreement are independent contractors. Neither
party is an agent, representative, or partner of the other party.
Neither party shall have any right, power or authority to enter into
any agreement for, or on behalf of, or incur any obligation or
liability of, or to otherwise bind, the other party. This Agreement
shall not be interpreted or construed to create an association, agency,
joint venture or partnership between the parties or to impose any
liability attributable to such a relationship upon either party.
20. Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Maryland without giving effect to principles
of conflicts of law.
21. Arbitration.
In the event of any disagreement, controversy or dispute regarding
performance under or interpretation of this Agreement, the parties
agree to attempt to reach a negotiated resolution. If such dispute
remains unresolved for a period of thirty (30) days after one party has
provided written notice of the dispute to the other, then each party
shall designate an officer to meet to endeavor to resolve the dispute.
Arbitration in accordance with this Section may not be commenced by
either party until said officers determine in good faith that a
negotiated resolution is unlikely, or the passage of thirty (30) days
from their first meeting, whichever occurs later. Upon the expiration
of said thirty (30) day period, if a negotiated resolution has not been
reached, the disagreement, controversy or dispute shall be settled by
binding arbitration in accordance with the commercial arbitration rules
of the American Arbitration Association and judgment upon the award
rendered by the arbitrators may be entered in any court having
jurisdiction thereof. The Arbitration shall be conducted in Maryland by
one arbitrator selected by the American Arbitration Association who
shall be subject to approval by both ICOA and OOH.
22. Attorney's Fees.
In any arbitration, lawsuit or other proceeding relating to this
Agreement the prevailing party will have the right to recover from the
other its costs and reasonable fees and expenses of attorneys,
accountants, and other professionals incurred in connection with the
suit or proceeding, including costs, fees and expenses upon appeal,
separately from and in addition to any other amount included n such
judgment. This provision is intended to be severable from the other
provisions of this Agreement and shall survive and not be merged into
any such judgment.
23. Force Majeure.
Except for OOH's payment obligations hereunder, each party shall be
excused from performance hereunder for the period of time and to the
extent that it is prevented from performing, in whole or in part, as a
result of delays caused by the other, an act of God, war, civil
disturbance, court order, labor dispute, or other cause beyond said
party's reasonable control.
IN WITNESS WHEREOF, the parties have executed this Distribution
Services Agreement as of the date first above written.
OOH! TV, INC. ICOA, INC.
By: _______________________ By: _______________________
Name: Xxxx Xxxxxx Name Xxxxxxx Xxxxxxxxxx
Title: President Title: President
Appendix A
OOH Page Specifications
Both parties agree that the initial OOH Pages will be produced on a trial basis,
and therefore extensive changes may be required during the term of this
Agreement. The OOH Pages will follow the following guidelines:
1. Both parties will approve the overall design of the OOH Pages
2. ICOA will work to minimize the number of location specific OOH Pages
required. Both parties agree that it may be necessary to create location or
location type specific OOH Pages in order to maximize acceptance by a
location or class of end user.
3. In is anticipated that the OOH Pages will contain the following elements.
(Relative position in this list should not be interpreted as impacting
format of the actual page layout.)
ICOA Specified Branding (to be provided by ICOA) Location specific content
(to be provided by ICOA) Location type specific content (to be provided by
ICOA)
Travel related content (weather, maps, etc.) (to be provided by OOH) Other
OOH provided content Advertising Link to the ICOA Product store
4. OOH Pages shall be designed to minimize bandwidth consumption requirements
without impacting the overall user viewing experience.
Appendix B
Landing Page Payments
Landing Page Payments are based on the estimated number of end-users available
at a specific location, and are calculated as follows:
1, Divide the appropriate location statistic by the Divisor specified in the
following table and round this number to the nearest integer. The result is
known as the Location Multiplier. The minimum Location Multiplier is one (1).
2. Multiple the Location Multiplier by $4.00.
3. In the event that the calculations below generate a result that is greater
than $10,000 in a given quarter, the amount due by OOH will be capped at
$10,000 and the calculation will start from zero for the following quarter.
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Location Type Divisor
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Airport 1 million passengers/year
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Marina 100 slips
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Campground 100 sites
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Hotel/motel 100 rooms
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Cafe/Restaurant 1
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For all Location Types not specified, both parties agree to negotiate in good
faith to determine a reasonable Location Multiplier. Until such negotiation has
been completed, the multiplier shall be one (1).
