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EXHIBIT 10.40
MARKETING AND ADVERTISING AGREEMENT
THIS MARKETING AND ADVERTISING AGREEMENT (this "Agreement") is entered
into this 26th day of April, 1999, by and between Park 'N View, Inc., a Delaware
corporation ("PNV"), with its headquarters at 00000 XX 00xx Xxxxxx, Xxxxx
Xxxxxxx, Xxxxxxx 00000 and Volvo Trucks North America, Inc., a Delaware
corporation ("Volvo"), with its headquarters at 0000 Xxxxxxxx Xxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000.
WHEREAS, PNV has designed and developed the concept and equipment ("the
System") to provide certain telecommunications, data transmission and cable TV
and other services (the "Television and Telecommunications Services") and is in
the process of developing Internet access services (together with the Television
and Telecommunications Services, the "Services") at truckstops with which PNV
has (or from time to time will have) entered into contracts (the "Truckstops");
and
WHEREAS, Volvo desires to promote Volvo Products and the products of
certain third parties which Volvo and PNV shall mutually agree upon (including
Cummins engine products) (collectively, "Volvo Products") to PNV customers by
marketing the Volvo Products to PNV customers and PNV desires to promote its
Services to Volvo customers by marketing the Services to Volvo customers.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained herein, Volvo and PNV (hereinafter collectively being referred to as
the "Parties"), intending to be legally bound, hereby mutually agree as follows:
1. Volvo Advertising.
(a) Broadcast Advertising.
(i) PNV hereby agrees to broadcast on its television DEN
channel (the "DEN Channel") certain advertisements for the Volvo Products (the
"Volvo Ads") which shall be supplied by Volvo to PNV at Volvo's sole expense and
shall be the sole property of Volvo, provided that PNV shall not broadcast Volvo
Ads for third party products if the broadcast of such Volvo Ads would violate
broadcast exclusivity rights PNV has granted or grants to other persons. If PNV
deems the Volvo Ads to be in poor taste or otherwise unsuitable for broadcast on
the DEN Channel, PNV shall inform Volvo and thereafter PNV and Volvo shall
cooperate to revise the content of the Volvo Ads so that the Volvo Ads are
suitable for broadcast on the DEN Channel. The terms "Volvo Products" and "Volvo
Ads" shall include ads for products or services placed by subsidiaries and
affiliates (both wholly-owned and partially-owned) of Volvo.
(ii) During each two (2) hour loop of taped video broadcast
transmitted on the DEN Channel by PNV, PNV agrees to broadcast up to
thirty-three minuets of Volvo Ads
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which shall be provided by Volvo in its sole discretion; provided that, during
the first year of the Term (as defined below), if PNV shall increase the length
of the loop of taped video broadcast, it shall play such additional Volvo Ads
that Volvo shall provide to PNV such that for every additional fifteen (15)
minutes of taped video broadcast, PNV shall play four (4) additional minutes of
Volvo Ads.
(iii) During the first year of the Term, PNV shall not accept
advertising or enter into any agreement to advertise products or services of
Volvo's competitors, defined as any other manufacturer of class 4-8 trucks, on
the DEN Channel. Thereafter, unless the Parties agree to extend this period of
exclusivity as provided in (iv) below, PNV may allow any person, corporation,
partnership or other entity in any trade category to advertise on the DEN
Channel.
(iv) Subject to Section 3, Volvo may elect to extend the
period of exclusivity through the second year of the Term, provided that Volvo
gives written notice to PNV of such election ninety (90) days prior to the first
anniversary of the date upon which this Agreement commences. If Volvo elects to
extend its period of exclusivity, its exclusive right to place banner
advertisements on PNV's Website (as defined below), as provided in subsection
(c) shall be likewise extended through the second year of the Term
(b) PNV Connections Magazine Advertising.
(i) During the Term, PNV hereby agrees to place in PNV
Connections Magazine, a monthly periodical published by PNV, the following
advertisements: (i) One (1) full-page advertisement for Volvo Products on the
back cover of PNV Connections Magazine; (ii) one (1) full page advertisement to
be placed inside PNV Connections Magazine; and (iii) four (4) advertisements
sized one-quarter of one magazine page to be placed in the program guide section
of PNV Connections Magazine (collectively, the "PNV Magazine Ads"). Except as
provided above, the placement of the PNV Magazine Ads in PNV Connections
Magazine shall be determined by the staff of PNV Connections Magazine. Volvo's
right to advertise Volvo Products in PNV Connections Magazine shall not be
exclusive. PNV shall not publish Volvo-placed advertisements for third-party
products in PNV Connections Magazine if the placement of such advertisements
would violate exclusivity rights PNV has granted or grants to other persons.
(ii) Volvo shall supply the PNV Magazine Ads in camera-ready
form to PNV at Volvo's sole expense and the PNV Magazine Ads shall be the sole
property of Volvo. If PNV deems the PNV Magazine Ads to be in poor taste or
otherwise unsuitable for publication in PNV Connections Magazine, PNV shall
inform Volvo and thereafter PNV and Volvo shall cooperate to revise the content
of the PNV Magazine Ads so that the PNV Magazine Ads are suitable for
publication in PNV Connections Magazine.
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(c) Internet Advertising.
(i) PNV will provide banner space on pages of PNV's World Wide
Web site, xxx.XxxxXXxxx.xxx (the "PNV Website"), to Volvo for the Volvo
Products, provided that PNV shall not place advertisements on the PNV Website
for Volvo Products which are third party products if the placement of such
advertisements would violate exclusivity rights PNV has granted or grants to
other persons. The Volvo banner advertising shall appear on the top half of the
home page of PNV. Volvo may revise the content of the banner advertising at any
time, provided that it does not revise the banner more than one (1) time per
month.
(ii) During the first year of the Term, Volvo shall be the
only advertiser of Class 4 through 8 trucks on the top half of the above the
fold space on PNV's home page (i.e., the page located at the internet address
xxx.XxxxXXxxx.xxx). Thereafter, unless the Parties agree to extend the period of
exclusivity as provided in subsection (a) above, PNV may allow any person,
corporation, partnership or other entity in any trade category to place banner
advertisements on PNV's home page or otherwise on the PNV Website. Except as set
forth in this subsection(c), PNV shall have the right to allow any person,
corporation, partnership or other entity in any trade category to advertise
anywhere on PNV's Website.
(d) Voice Response Unit Advertising.
(i) At Volvo's option, PNV will include ten (10) second spots
on the messages PNV plays on its voice response unit ("VRU") which promote the
Volvo Ads on the DEN Channel. Such spots shall be included on any truck driver's
VRU messages no more than two (2) times per month.
2. Marketing PNV Services.
(a) Volvo may purchase twelve (12) month memberships for the Services
for resale to Volvo customers which shall consist of the level of services set
forth on Schedule A hereto. Volvo shall pay a fee of $15 per month for each such
membership, which shall be payable monthly in arrears on or prior to the tenth
day of the next succeeding month.
(b) If a Volvo customer is in breach of its agreement with Volvo, Volvo
may terminate such customer's membership at any time. Volvo shall provide PNV
five (5) days prior written notice that it intends to terminate such customer's
membership. Upon such termination, Volvo shall be relieved of its monthly
membership fee obligation to PNV.
(c) In connection with the sale of Volvo Class 8 trucks, PNV shall
allow Volvo dealers to purchase one (1) year memberships for the Services for
purchasers of Volvo Class 8 trucks at a fee of $250 per year per membership,
which shall be payable by the Volvo dealer to PNV at the time of the purchase of
the membership. The level of services to be provided in such membership is set
forth on Schedule A hereto.
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d) PNV agrees that the Playboy channel and/or other adult entertainment
channels will not be offered or included in PNV's basic level of services.
3. Consideration.
In consideration of the foregoing, Volvo shall pay to PNV $600,000
during the Term, which amount shall be paid quarterly, payable on the first day
of each quarter, commencing on the date this Agreement commences. If Volvo
elects to extend its period of exclusivity, as provided in Section 2, for
advertising on the DEN Channel and the PNV Website during the second year of the
Term, Volvo shall pay to PNV an additional $300,000, which amount shall be paid
quarterly (in addition to other amounts payable to PNV), payable on the first
day of each quarter, commencing on the first anniversary of the date upon which
this Agreement commences.
4. Trademarks and Service Marks.
(a) The parties acknowledge that "Park 'N View" [or other xxxx to be
used that we have registered used] and "Volvo" [or any other registered xxxx we
will use] are registered trademarks or otherwise owned by PNV and Volvo
respectively.
(b) This Agreement shall not convey to PNV or Volvo any ownership
rights or right to use trademarks, service marks, trade names or logos ("Marks")
owned or used by the other party other than as permitted in the performance of
its obligations under this Agreement. Nothing shall give PNV or Volvo any right,
title or interest in or to any such Marks other than use pursuant to this
Agreement.
(c) All use of the parties' Marks hereunder shall inure to the sole
benefit of the owner of those Marks. The parties agree not to take any action
that would impair or challenge the other party's ownership or rights in and to
those Marks.
5. Term. The term of this Agreement, shall be for a period of two (2)
years (the "Term") commencing on June 1, 1999 unless the parties mutually agree
in writing that this Agreement shall commence at a later date; provided,
however, that this Agreement shall commence no later than July 1, 1999.
(a) In the event the average number of PNV's member activations falls
below 160,000 per month for three consecutive months, Volvo reserves the right
to terminate this Agreement. In the event of such termination, both parties will
be relieved of any further obligations contemplated by this Agreement. Volvo
shall have the right, upon reasonable advance notice, to audit PNV's books and
records to determine or verify activation or subscription rates.
6. Indemnification. Volvo shall be responsible for the contents of all
advertising provided by it, and agrees to indemnify and hold harmless PNV for
all claims, actions and suits arising therefrom. PNV shall be responsible for
the contents of all advertising provided
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by it, and agrees to indemnify and hold harmless Volvo for all claims, actions
and suits arising therefrom.
7. Assignment. Each party may, with the prior written consent of the
other Party, such consent not to be unreasonably withheld, sell, assign,
transfer or otherwise dispose of its interest in this Agreement provided that
the said acquiror will (i) assume all of such Party's rights and obligations
hereunder; and (ii) will be bound by the terms of this Agreement.
Volvo shall also have the option during the first year of the Term,
without assigning its rights under this Agreement, to sell or transfer any
advertising services on the DEN Channel to Volvo's advertising partners,
provided that, (i) the price for such advertising services shall be the price
set forth on the then current rate card on the DEN Channel, unless PNV, it its
sole discretion allows the price to be less than the current rate card to
facilitate Volvo's key strategic partnerships or projects, (ii) such advertising
services notably feature Volvo Products, and (iii) the advertising services do
not violate broadcast exclusivity rights PNV has granted or grants to other
persons. During the second year of the Term, if Volvo does not have sufficient
advertising content to fill the time allotted for Volvo's broadcast
advertisements on the DEN Channel, Volvo shall first offer to sell such
advertising services on the DEN Channel to PNV on terms to be mutually agreed
upon by the parties. If PNV does not purchase such advertising services within
45 days of receiving such offer, Volvo may sell such advertising services to its
advertising partners provided that it complies with clauses (i) through (iii) of
the first sentence of this paragraph. Notwithstanding the foregoing, Volvo may,
with the prior written consent of PNV, which consent shall not to be
unreasonably withheld, sell a limited number of advertising services, as shall
be agreed upon by PNV and Volvo, on the DEN Channel which do not notably feature
Volvo products.
8. Breach. In the event that either party shall fail in any material
respect to perform any obligation under this Agreement, the other party may in
writing notify the non-performing party that such failure constitutes a breach.
If the breach is not remedied or cured within thirty (30) days following receipt
of the notice of breach, without limiting any other remedy which may be
available, the non-breaching party may terminate this Agreement by notice to the
breaching party.
9. Ownership and Confidentiality. Volvo recognizes and agrees that,
except as otherwise provided herein, PNV shall, during the term of this
Agreement and thereafter, retain sole ownership of the System. Volvo recognizes
the proprietary nature of the concept and the design of the System and the
Services. Accordingly, except as otherwise provided herein, Volvo and PNV agree
to maintain and cause each of its employees and agents to maintain and keep
strictly confidential the terms and provisions of this Agreement, and all
confidential information it obtains or receives in conjunction with the
operation of the System or the Services.
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10. General Provisions.
(a) Notices. All notices required or permitted hereunder shall
be in writing and, may either be delivered by overnight courier, transmitted by
facsimile, or delivered by the United States Mail, postage prepaid, addressed as
follows:
To PNV: Xxxxx Xxxxxxxx
President
Park 'N View, Inc.
00000 XX 00xx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxx 00000
Fax Number: (000) 000-0000
With a copy to: Xxxxx X. X'Xxxxxxx, Esq.
Xxxxxxxxxx Xxxxxxxx LLP
X.X. Xxx 000000
Xxxxxxx, Xxxxx Xxxxxxxx 00000
Fax Number: (000) 000-0000
To Volvo: Xxxx Xxxxxxx
Volvo Trucks North America, Inc.
0000 Xxxxxxxx Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Fax Number: (000) 000-0000
With a copy to: General Counsel
Volvo Trucks North America, Inc.
0000 Xxxxxxxx Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Fax Number: (000) 000-0000
All notices shall be deemed delivered only upon actual receipt. Any party may
change its address for purposes of this Agreement by giving notice of such
change to the other parties pursuant to the terms of this Section 10(a).
(d) Actions; Further Assurances. Subject to the terms and
conditions of this Agreement, each party agrees to: (i) take or cause to be
taken as promptly as practicable all actions and obligations arising herein; and
(ii) do or cause to be done all things to fulfill and comply with its
obligations or the obligations of the other parties to consummate the
transactions contemplated herein.
(e) Press Releases. PNV and Volvo shall consult with each
other as to the form and content of all press releases and other public
disclosures of matters relating to this Agreement, the System and the Services.
Nothing in this section shall prohibit PNV or Volvo from making any disclosure
which its legal counsel deems necessary or advisable to fulfill such
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party's disclosure obligations under applicable law. All public disclosures
shall be transmitted by telecopier to the other party for approval prior to
publication or dissemination.
(f) Section Headings. The section headings in this Agreement
are for convenience of reference only and shall not be deemed to alter or affect
any provision hereof.
(g) Applicable Law. This Agreement shall be governed by the
laws of the State of Florida.
(h) Schedules. The Schedules attached to this Agreement are
integral parts of this Agreement and all references to this Agreement shall
include the Schedules.
(i) Modification. This Agreement shall not be modified or
amended except by an instrument in writing executed by the Parties to this
Agreement.
(j) Successors And Assigns. This Agreement shall apply to, and
be binding upon, the parties and their respective successors and permitted
assigns (as determined under Section 7).
(k) Severability. If any part or sub-part of this Agreement is
found or held to be invalid, that invalidity shall not affect the enforceability
and binding nature of any other part of this Agreement.
(l) Arbitration. Any controversy, dispute or question arising
out of, or in connection with, or in relation to this Agreement or the
interpretation, performance or non-performance or any breach thereof may, by
mutual agreement, be determined by arbitration conducted in the home office of
the party not bringing the claim in accordance with the then existing rules of
the American Arbitration Association. PNV and Volvo shall each select one
arbitrator, and the two arbitrators shall select a third with the same
qualifications. Any decision rendered shall be binding upon the Parties,
however, the arbitrators shall have no authority to grant any relief that is
inconsistent with this Agreement. The expense of arbitration shall be shared
equally by the Parties.
(m) Integration; Entire Agreement. This Agreement (including
Schedules, documents and instruments referenced herein) constitutes the entire
agreement among the Parties and supersedes all prior agreements and
understandings, both written and oral, among the Parties with respect to the
subject matters hereof.
(n) Counterparts. This Agreement may be executed in one or
more counterparts, each of which when so executed shall be deemed to be an
original and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, Volvo and PNV have caused this Agreement to be
executed pursuant to appropriate legal authority duly given, as of the day and
year first above written.
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WITNESSES:
PARK 'N VIEW, INC., a
Delaware corporation
_______________________________
_______________________________ By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Xxxxx Xxxxxxxx, President
VOLVO TRUCKS NORTH
AMERICA, INC.
_____________________________
_____________________________ By: /s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
Title: VP - Marketing
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SCHEDULE A
PNV-VOLVO MEMBERSHIP DETAILS
The following Cable TV stations (or Comparable Stations):
================================================================================
Channel # Program
--------------------------------------------------------------------------------
04 HBO
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05 HBO2
--------------------------------------------------------------------------------
06 HBO3
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07 DISCOVERY
--------------------------------------------------------------------------------
08 ESPN 2
--------------------------------------------------------------------------------
09 FOX
--------------------------------------------------------------------------------
10 DEN
--------------------------------------------------------------------------------
11 CNN HN
--------------------------------------------------------------------------------
12 WEATHER
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13 ESPN
--------------------------------------------------------------------------------
14 NBC
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15 ABC
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16 A&E
--------------------------------------------------------------------------------
17 CBS
--------------------------------------------------------------------------------
18 TNN
--------------------------------------------------------------------------------
19 TNT
--------------------------------------------------------------------------------
20 WGN
--------------------------------------------------------------------------------
21 PNV
================================================================================
Long-distance Telephone Services:
15 minutes per month free
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