WATER COOLER PLACEMENT AGREEMENT
AGREEMENT made this 16th day of February 2006, by and between AquaCell
Media, Inc., a Delaware corporation, with its offices located at 00000 Xxxxxxxxx
Xxxxxx, Xxxxxx Xxxxxxxxx, Xxxxxxxxxx 00000 ("AquaCell") and CVS Pharmacy, Inc.
with its primary place of business at 0 XXX Xxxxx Xxxxxxxxxx, XX 00000
("Retailer").
WHEREAS AquaCell is the manufacturer and owner of a patented self-filling
water cooler; and
WHEREAS Retailer is the tenant or owner of premises of the participating
retail locations included on the attached "Exhibit A" ("Participating
Locations"); and
NOW in consideration of the following covenants and consideration the
parties agree to have an AquaCell water cooler installed in each of the
Participating Locations under the following terms and conditions:
1. Term and Termination
This Agreement is for a term of five years commencing on the date hereof
and is renewable upon written agreement of the parties.
2. Location of Water Cooler
A. AquaCell will install its water cooler in the Participating Locations
utilizing licensed, bonded plumbers, and further, agrees to service and
maintain the cooler in good working order throughout the term of this
Agreement, insuring the filtration system and bottle are both
operational, free of leaks and in good working order. AquaCell will
provide cups to the Participating Locations to be used with the water
cooler.
B. The Retailer agrees that the water cooler will be installed in an area
within the Participating Location that is easily accessible to and in
full view of customers, and that they will ensure that the cup holder is
filled with cups and that the drip tray is emptied when full. [Water
cooler to be placed within pharmacy seating area. (Added on 2/27/06)]
3. Title
A. The Retailer acknowledges that the water cooler shall at all times
remain the property solely of AquaCell who has all right, title and
interest thereto. Retailer agrees to AquaCell's execution and filing of
UCC-1s in any appropriate jurisdiction in connection with its security
interest in the water cooler.
B. The Retailer shall permit no lien to be placed upon the premises which
may affect AquaCell's property interest in the water cooler. In the
event any lien is placed against the Retailer's interest in the
leasehold, it shall immediately notify AquaCell who may remove the
cooler from the premises.
4. Use of Water Cooler
The Retailer's customers and employees shall have unlimited use of the
drinking water from the AquaCell water cooler in the Participating
Locations.
5. Advertising
A. The Retailer agrees to permit AquaCell to place advertising bands on its
water cooler's permanently attached bottle and/or on the cup holder. The
Retailer agrees that these advertisements may be changed periodically by
AquaCell or its agents or assigns, and that no other party is authorized
to change or sell the advertisement.
B. [Paragraph omitted on 2/27/06]
C. AquaCell agrees to pay the Retailer the amount set forth on "Exhibit B"
from advertising revenues collected on water coolers in the
Participating Locations.
D. The parties agree that any advertisements placed on the bottle will not
be inappropriate to the location.
E. The Retailer may submit a list of product categories it deems
unacceptable or objectionable, to be attached hereto as "Exhibit C".
The Retailer may reject any advertiser it deems unacceptable, provided
it does not act in an arbitrary or capricious manner and notice thereof
is timely given.
F. AquaCell will pay Retailer for changing the advertising bands in its
stores the amount set forth in Exhibit B. AquaCell will provide the
advertising bands to the Retailer. Retailer shall provide evidence of
execution to AquaCell.
G. Retailer shall be entitled to offer advertising on the water coolers. In
the event the Retailer secures the advertising, revenues shall be
divided between the parties, as set forth in Exhibit B.
6. This Agreement may be assigned by either party to an affiliate, subsidiary
or successor in interest, provided notice is given and upon consent of the
other party which will not be unreasonably withheld.
7. AquaCell shall, at its expense, carry and maintain: (a) Workers
Compensation and Employers Liability Insurance meeting minimum statutory
requirements, (b) Commercial General Liability insurance policy(s) with a
combined single limit of not less than $5,000,000 per occurrence, (c)
Automobile Liability Insurance with a combined single limit of not less
than $1,000,000 per occurrence. The policy shall be underwritten by an
insurance company that carries an A- or better rating from A.M. Best. Each
policy shall provide that (1) CVS Corporation and it's Subsidiary and
Affiliates shall be named as an additional insured, (2) not less than
thirty (30) days' prior, written notice shall be given to CVS in the event
of any alteration or terms of such policy or of the cancellation or non-
renewal thereof, and (3) such insurance will be primary insurance with
respect to CVS Corporation and its Subsidiaries and Affiliates. Your
company shall furnish CVS with a certificate of insurance evidencing
coverage, and a certificate of insurance as evidence of renewal at least 30
days prior to expiration of each policy.
Your company agrees to defend, indemnify and hold harmless CVS, its
directors, officers, employees and agents from and against any and all
claims, demands, losses, damages, suits, judgments, penalties, expenses,
attorneys' fees, and/or liabilities of any kind or nature which may be
asserted against them by third parties in connection with the performance
of your company, its employees and/or agents under this Agreement or
arising as a result of the AquaCell units in the CVS locations.
8. This Agreement shall be governed by the laws of the State of Delaware.
9. This Agreement constitutes the entire agreement between the parties and may
be amended only by a written agreement executed by both parties.
10. The undersigned hereby acknowledge that he/she is duly authorized to sign
this agreement on behalf of their respective parties.
IN WITNESS WHEREOF, the parties have signed the Agreement as of the date
first above written.
AquaCell Media Inc. CVS Pharmacy, Inc.
/s/ Xxxxx Xxxxxx /s/ Xxxxxxx Xxxxxxx
------------------------------------- --------------------------------------
By: Xxxxx Xxxxxx By: Xxxxxxx Xxxxxxx
Title: CEO
Title: V.P. Visual Merchandising
EXHIBIT A
Participating Retail Locations
(Please attach list which includes full shipping address for each location)
EXHIBIT B
Payments to the Retailer
(1) AquaCell will pay to the Retailer from collected advertising revenues $7.00
per month for each Participating Location, which amount shall be paid
quarterly.
(2) AquaCell will pay to the Retailer $20.00 per location in which Retailer
executes changing of the advertising band.
(3) In the event Retailer secures advertisement on the water coolers, AquaCell
shall retain the first $100 per location per month for the advertising, and
the Retailer shall receive all additional collected revenues for that
advertising.
EXHIBIT C
Product categories unacceptable or objectionable to Retailer
(Added on 2/27/06)
- Alcohol
- Tobacco
- Family Planning
Non-retail
Advertising- TV Show
- All advertised items must have CVS pre-approval
