Exhibit 10.15
DATA CALL TECHNOLOGIES END-USER AGREEMENT
This Data Call Technologies End-User Agreement ("Agreement") is made and
entered into between Data Call Technologies, a Nevada corporation ("Data Call")
and Xxxx Xxxxxxx of Arena Media Networks, a _____________corporation (referred,
to as "End-User"), each a "Party" and collectively the "Parties."
PURPOSE OF THIS AGREEMENT
Data Call and End-User wish to enter into an Agreement in which End-User will be
authorized to display the Data Call Direct Xxxx Messenger data feed on End-User
digital signage applications. In pursuit of this goal the Parties agree to the
following:
1. DATA CALL, in association with worldwide information suppliers, provides
various equipment and technology which allow for a delivery of information
and Internet based messaging for indoor and outdoor displays of all types
via the Direct Xxxx Messenger System.
2. END-USER, wishes to employ the Direct Xxxx Messenger System for use at its
facility/facilities, which are disclosed on the list of facilities attached
hereto as Exhibit A(collectively the "Facilities").
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3. SERVICE. Data Call hereby agrees to provide End-User with the Direct Xxxx
Messenger System, including all services which are disclosed on Data Call's
website as of the date of this Agreement. End-User hereby agrees to pay the
Total Monthly Fee for the individual Facilities Services as described below
when due. The Total Monthly Fee is defined and described in Section 9 of
this Agreement, below. The services that will be provided to End-User by
Data Call include the Direct Xxxx Messenger System Instant messaging and
the information news feed (the "Services"). The Services will be delivered
via the Internet. The content of the message and the choice of the
information delivered pursuant to the Services will be determined by the
End-User. The End-User will have access to the Services via a user menu on
the xxxxxxxxxxxx.xxx website (the "Website"). Data Call will maintain and
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make available the website to End-User as long as the monthly subscription
fee is current. End-User agrees not to change or alter any of the Services
provided by Data Call.
4. ACCESS. Data Call will supply the End-User with a username and password to
login to its account on the Website. By utilizing the username and password
of the End-User, End-User will have the ability to access the Website to
initiate user-defined messages via the Data Call Instant Message system and
to change the Data Call supplied information mix delivered to End-User.
5. ADDITIONAL INFORMATION. Data Call hereby reserves the right to append
additional information, to the beginning and/or end of the Services
streamed to the End-User after such additional Information has received the
prior approval of End-User.
6. TERM. The term of this agreement shall be for a period of one (1) year,
commencing on the Effective Date of this contract as defined under Section
17, below. This Agreement may be renewed thereafter for successive one (1)
year terms, after a review by both Parties (the "Review") renewable for
successive one (1) year terms unless notification of a Party's intent to
terminate the Agreement is received in writing by the non-terminating Party
prior to thirty (30) days before the end of the current Term.
7. LOCAL SALES TAX. Both parties acknowledge that this Agreement and the
transactions contemplated herein may be subject to sales tax, hr such an
event, End-User will be obligated to pay any sales tax associated with this
Agreement and transaction directly to the taxing authority(s).
8. FINANCIAL INFORMATION. By entering into this Agreement, End-User authorizes
Data Call to conduct a credit check on End-User.
9. MONTHLY FEE. End-User agrees to pay $56.25 per facility per month (the
"Monthly Facility Fee"). Additionally, End-User agrees to supply Data Call
with a schedule of all Facilities in which the Services are used every six
(6) months (the "Facility List"). End-User agrees that the Facility List
shall disclose aft Facilities which End-User is using the Services at.
Additionally, End-User agrees to notify Data Call within five (5) days of
any additional Facility to which the Services will provided.
a) As of the Effective Date of this Agreement, the End-User has
agreed to provide the Services to twenty-four (24) Facilities, making
the total monthly fee due $1,350 (the "Total Monthly Fee"). In the
event the number of Facilities which End-User is displaying the
Services increases, the End-User will pay Data Call an additional
$56.25 per Facility.
(b) End user must keep current account of facilities using DataCall
feed and malts DataCall aware of any deletion or addition of
facilities.
(c) Payment of the Total Monthly Fee is due at Data Call's office
(which address is below) by the 5th day of each month for which
Services are to be delivered pursuant to this Agreement (the "Due
Date"). For Example, the Due Date of the Total Monthly Fee relating to
Services (as well as the Monthly Facility List) to be delivered to the
End-User in the month of April shall be due by the 5th day April. Any
payment not received by the Due Date will be subject to an additional
two percent (2%) processing fee ("Processing Fee") and if such late
payment is not received within ten (10) days of the Due Date,
End-User's use of the Services will be suspended until such time as
the Total Monthly Fee then payable plus the Processing Fee is paid.
Payments are to be sent to:
DATA CALL TECHNOLOGIES
000 XXXXXXX XX. XXX X-00
XXXXXXX, XXXXX 00000
(d) End-User agrees that the Services shall only be used at the
Facilities communicated to Data Call in advance, sad that any use of
the Services of any Facilities other than those which have been
communicated to Data Call in advance will cause substantial damage to
Data Call.
10. RIGHT TO INSPECT AND AUDIT THE USE OF SERVICES. Data Call reserves the
right and End-User grants Data Call the right to inspect, verify, and audit
the use of the Services by the End-User during the term of this Agreement
(an "Inspection"). Additionally, End-User agrees to provide Data Call
access to any common areas of any Facilities whether listed on a schedule
of current Facilities or not in accordance with End-Users agreements with
the Facility owners, pursuant to such Inspection. Based on end user ability
to make arrangements to enter the building with escort
11. DISCOUNTED PRICING CONSIDERATION. In consideration for Data Call granting
End-User a special reduced rate fee for the Services, End-User agrees to:
a) Display Data Call branding. End-User agrees that Data Call logo
will be displayed on end users template with their approval for design
and will be shown during DataCall feed. DataCall will provide a Logo
kit.
b) Data Call content. Not modify Data Call branding in any manner
that would degrade, detract, or otherwise, interfere with the Data
Call branding message. Furthermore, End-User agrees to do nothing to
obstruct or prevent the Data Call Branding from being displayed.
12. WARRANTY AND LIABILITY. Neither Data Call nor any of its affiliates makes
any expressed or implied warranties, including, without limitation, any
warranty of merchantability or fitness for a particular purpose or use in
connection with this Agreement, relating in the Services or otherwise.
Neither Data Call nor any of its affiliates warrant that the Services will
be uninterrupted or error free. The End-User expressly agrees that its use
and distribution of the service is at the sole risk of its viewers. Data
Call nor any of Data Call's affiliates will in any way be liable to the
End-User or any of its viewers for inaccuracies, errors or omissions,
regardless of cause, in the service or for any damages whether direct or
indirect, or consequential, punitive or exemplary, resulting therefrom or
whether such damages were due to the negligence of Data Call or its
affiliates or otherwise, whether foreseen or unforeseen. The liability of
Data Call and its affiliates in any and all categories, whether arising
from contract, warranty, negligence, or otherwise shall, in the aggregate,
in no event exceed the average cost of one month of service under this
Agreement If the feed from DataCall is not functioning, end user will not
be liable for payment during any down-time.
13. TERMINATION. The Parties agree that upon the breach of any Section of this
Agreement by either Party, the non-breaching Party may give the breaching
Party written notice of its intent to terminate the Agreement, at which
lime the non-breaching Party shall have thirty (30) days to cure such
breach. If after the expiration of the thirtieth (30) day from the date
written notice of the non-breaching party's intent to terminate is received
by the breaching party (with the day alter such notice is received being
counted as day one (1) of thirty (30)), such breach has not been cured,
this Agreement shall be automatically terminated. The Parties agree however
that nothing in this Section shall limit Data Call's right to suspend
End-User's receipt of the Services until such time as the Total Monthly Fee
and the Processing Fee is paid pursuant to Section 9(b) above.
14. MISCELLANEOUS.
(a) ASSIGNMENT. Data Call and end user have mutual rights to assign
this Agreement without the prior approval of End-User.
(b) LEGAL FEES AND COSTS In the event of any action or proceeding to
enforce any provision of this Agreement, the non-prevailing party in
any such proceeding shall be responsible for the legal expenses,
including, without limitation, reasonable attorneys fees, costs, and
necessary disbursements, of the prevailing party.
(c) ENTIRE AGREEMENT, AMENDMENTS AND WAIVERS. This Agreement
constitutes the entire agreement of the parties hereto and expressly
supersedes all prior and contemporaneous understandings and
commitments, whether written or oral, with respect to the subject
matter hereof. No variations, modifications, changes or extensions of
this Agreement or any other terms hereof shall be binding upon any
party hereto unless set forth in a document duly executed by such
party or an authorized agent or such party.
(d) WAIVER. No failure on the part of any party to enforce any
provisions of this Agreement will act as a waiver of the right to
enforce that provision.
(e) SECTION HEADINGS.Section headings are for convenience only and
shall not define or limit the provisions of this Agreement
(f) EFFECT OF FACSIMILE AND PHOTOCOPIED SIGNATURES. This Agreement
may be executed in several counterparts, each of which is an original.
It shall not be necessary in making proof of this Agreement or any
counterpart hereof to produce or account for any of the other
counterparts. A copy of this Agreement signed by one party and faxed
to another party shall be deemed to have been executed and delivered
by the signing party as though an original. A photocopy of this
Agreement shall be effective as an original for all purposes.
16. EFFECTIVE DATE. This Agreement shall be effective as April 2nd, 2006.
17. End user is subject to no more than a 5% annual increase in cost.
IN WITNESS WHEREOF, the pasties have executed this agreement as of the
dates set forth opposite their signature hereto.
Contract Number 06-1101
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DATA CALL TECHNOLOGIES
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By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx, Chief Executive Officer
Date: 3/13/06
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END-USER
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By: /s/ Xxxx Xxxxxxx/Arena Media Networks
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Its:
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Date: 3-13-06
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