SERVICE AGREEMENT entered into on this ___ day of _____ 2016.
BY: IMPACT AUDIO VISUAL INC., having its place of business
at 3855 W Diablo, Unit #9, Las Vegas, Nevada 89118;
(Hereinafter referred to as “IMPACT”)
(Hereinafter referred to as “SUBSCRIBER”)
(Hereinafter collectively referred to as the “PARTIES”)
WHEREAS IMPACT is North America’s premier rental provider of Indoor/Outdoor LED Screens and related production services;
WHEREAS SUBSCRIBER has purchased a Groupon Valentine’s Day promotion for the one (1) time use of one (1) of IMPACT’s Trailer Mounted LED Screens, together with the personnel required to operate said Screen, at the single location of SUBSCRIBER’S choosing, for up to five (5) hours, on any date within one (1) week of February 14th, 2016 or subject to availability thereafter (“Promotion”), and subject to the terms and conditions below;
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements contained
herein, the Parties hereby agree as follows:
1.1 The preamble shall form an integral part herein as if recited at length.
2.1 Screen. The Screen to be provided to the SUBSCRIBER for the Promotion shall be at IMPACT’s sole discretion and shall be based on availability and on the geographic location
where the Promotion is to be redeemed.
2.2 Personnel. IMPACT shall provide one (1) Driver and one (1) Technician and/or any other staff member or representative required for the operation of the Screen.
3. SCREEN PLACEMENT
3.1 The SUBSCRIBER shall be solely responsible for selecting and securing the Screen placement location (“Site”), including, but not limited to obtaining permission(s) for Site use, payment of Site rental/use fees, obtaining necessary Site and other related permits (i.e. parking), documents and payment of any and all costs associated with the securing of and use of the Site. IMPACT shall have no obligation whatsoever other than the placement of the Screen.
3.2 IMPACT will not be responsible for any damage caused by the parking and placement of the Screen at the Site except in the case of gross negligence by its employees, subcontractors, etc.
3.3 SUBSCRIBER shall be responsible for any and all citations, fees, costs and/or fines or towing charges imposed on IMPACT as a result of its vehicles, Personnel or Screen not having the
permits required to park and/or operate the Screen at the Site.
3.4 IMPACT’S personnel shall, at all times, have sole and ultimate authority with respect to any decisions concerning the safety and/or operation of the Screen, including safe placement.
3.5 SUBSCRIBER understands and agrees that in the event the Site location is changed less than twenty four (24) hours prior to the scheduled load in date, while IMPACT shall use best efforts to ensure the Screen is provided in time for the start of the Promotion, SUBSCRIBER shall hold IMPACT harmless for any delays resulting from the change and shall be responsible for any additional costs incurred by IMPACT as a result of the Site change.
3.6 SUBSCRIBER understands and agrees that in the event IMPACT is (i) not advised of the Site the Screen is to be located at within the required delay, or (ii) the SUBSCRIBER opts not to proceed with the Screen at the Site for whatever reason, SUBSCRIBER shall remain responsible for the payment of the fees associated with the Promotion regardless of whether the Screen is actually utilized.
4.5 Site Access
4.5.1 SUBSCRIBER shall be responsible for providing IMPACT with all necessary vehicle, Personnel and Screen credentials for access to the designated Site, where required.
4.5.2 SUBSCRIBER shall permit IMPACT’S Personnel, at all times, to access the Site where the Screen is to be located.
4.7 Site Ground Protection & leveling & safety barricades
4.7.1 SUBSCRIBER shall be responsible for providing any ground protection required by the Site for sensitive areas on which the Screen may be located (i.e. grass).
4.7.2 SUBSCRIBER shall also be responsible for any modifications required to either level or secure the ground to both safely and adequately support the weight of the Screen.
4.7.3 SUBSCRIBER shall be responsible for providing any and all safety barricades required by the Site.
5. SCREEN CONTENT
5.1 All video material to be displayed on the Screen shall be supplied by KINETIC ACTIVE.
5.2 IMPACT shall not be responsible for the inability to display any content on the Screen that is not supplied by KINETIC ACTIVE.
5.3 IMPACT shall not be responsible for displaying any content other than the content provided by KINETIC ACTIVE and makes no assurances as to the quality or legal compliance of the content.
5.4 SUBSCRIBER shall be responsible for ensuring compliance with all federal, state and local laws and regulations pertaining to the Site with respect to the display of video images in public spaces and shall indemnify and hold IMPACT harmless from any fines, citations, legal proceedings (including attorney fees and expenses), clearances required, costs or any other damages
associated with or incurred as a result of the display of the content on the Screen.
6. SCREEN INSTALLATION/OPERATION/DISMANTLE
6.1 IMPACT’S Personnel shall be responsible for the installation, set-up, rendering operational and dismantle of the Screen.
6.2 Screen Operating Hours. SUBSCRIBER shall have use of the Screen at the Site for a period of approximately five (5) hours.
IMPACT shall deliver the Screen to the Site no later than the morning of the Promotion Event and shall be removed immediately following the presentation of the content.
7.3 Delay for repairs
7.3.1 The Screen is rated for a maximum safe wind load of 35 to 40 mph. Gusts or sustained winds of 35 mph or higher necessitate that the Screen be turned out of the direction of the wind, powered down due to lightening, and/or lowered into the vehicle to avoid serious damage and/or injury. IMPACT shall not be responsible for loss of use of the Screen due to winds beyond their safety rating.
7.3.2 While the Screen being provided for the Promotion is weather proof; it cannot be lowered in inclement weather to perform maintenance or repairs. In such cases, the provisions
outlined in Section 7.3.4 below shall prevail.
7.3.3 IMPACT’S Personnel shall, at all times, have sole and ultimate authority with respect to any decisions concerning the safety and/or operation of the Screen.
7.3.4 In the event that a Screen and/or related equipment provided by IMPACT requires repair (“Required Repairs”), IMPACT shall be granted a delay of ninety (90) minutes to execute the Required Repairs (“Repair Delay”). This delay, however, does not take into account conditions beyond IMPACT’S control, which would render it impossible for IMPACT’S Personnel to safely carry out the Required Repairs (i.e. weather conditions, such as wind (outlined in Section 7.3.1 above), cold, rain or snow conditions making it impossible to effect certain electrical and/or wiring repairs, etc.) and for which an additional delay to be determined based on actual weather conditions at the time, shall be granted to IMPACT to carry out the Required Repairs (“Weather Delay”).
7.4 Access for Repairs. IMPACT shall be granted access to its Screens at any and all times to perform any repairs required.
8.1 IMPACT shall be responsible for providing the generator fuel to power the Screen.
9. CONFIDENTIAL INFORMATION
9.1 Confidential Information means all information and data disclosed orally, in writing or electronically, by one party to the other which is identified as confidential at the time of disclosure or is reasonably identifiable as confidential, including, without limitation: all information and data relating to the structure, personnel and operations of the disclosing party (including financial, planning, marketing, advertising and commercial information and strategies); employees, supplier and customer information and data; contractual agreements (including this Agreement, its terms and conditions and the fact of its existence), records and correspondence; venue plans and drawing, computer programs, computer-related data and databases; trade secrets, inventions, designs, methods, processes and know-how; and items provided or disclosed to the Contractor by third parties under an obligation of confidentiality. Confidential information shall not include information which (i) is or becomes generally available to the public other than as a result of disclosure by a party in breach of this Agreement; (ii) becomes available to the receiving party on a non confidential basis from a source other then the disclosing party, that is not, to the knowledge of the receiving party, after due inquiry, bound by a duty of confidentiality prohibiting the disclosure thereof; or (iii) was within the receiving party’s possession prior to being furnished by the disclosing party, as evidenced by written records of the receiving party; or (iv) is required to be disclosed pursuant to the order of a court of competent jurisdiction or government authority with jurisdiction over the performance of the services. SUBSCRIBER agrees: (a) to keep and use in strict confidence all Confidential Information that it acquires, sees or is informed of, as a direct or indirect consequence of this Agreement and to not, without the prior written consent of the disclosing party, disclose any such Confidential Information; (b) not to use, copy, duplicate or reproduce, either directly or indirectly, any of the Confidential Information or any recollections thereof for any purpose other than for the performance of its obligations under this Agreement, without the disclosing party’s prior written approval; (c) not to disclose any information, plans or designs to which it may have access by virtue of its connection with any Work Product to any person not expressly authorized by the disclosing party to review such information, plans, designs or Work Product; and (d) to cause all subcontractors to comply with the foregoing confidentiality requirements.
10.1 SUBSCRIBER shall indemnify, defend and hold harmless IMPACT from and against any and all demands, claims, actions or proceedings seeking a remedy for personal injury (including death) and/or damage to the property (personal or real) of any of its employees, agents, contractors, officers, directors and affiliates, and all fines, judgments, settlements, penalties, liabilities, losses, costs and expenses (including reasonable attorney’s fees and expenses as outlined in Section 10.2 below) suffered by SUBSCRIBER or its agents, subcontractors, employees, etc. as a result of (but not limited to) their presence in the vicinity of/or on IMPACT’S Screen, vehicle and/or related equipment/outriggers/mast areas/hydraulics, presence in vehicle control rooms, climbing and/or dismounting of stairs and/or ladders affixed to IMPACT’S vehicles or Screen, presence on vehicle roof tops, circulation in and around cabled areas, etc.
10.2 In the event suit is brought (or arbitration instituted) or an attorney is retained by any Party to this Agreement as a result of the other party having breached this Agreement, the prevailing party shall be entitled to reimbursement for reasonable attorneys’ fees and all related costs and expenses.
11. WAIVER OF BREACH
11.1 No failure by IMPACT to insist upon strict performance of any term or condition of this Agreement or to exercise any right or remedy available on a breach thereof, and no acceptance of full or partial payment during the continuance of any such breach, shall constitute a waiver of any such breach, term or condition. No term or condition of this Agreement required to be performed by SUBSCRIBER and no breach thereof, shall be waived, altered or modified, except by a written instrument executed by IMPACT. No waiver of any breach shall affect or alter any term or condition in this Agreement, and each such term or condition shall continue in full force and effect with respect to any other existing or subsequent breach thereof
12. RIGHTS OF POSSESSION
12.1 SUBSCRIBER understands and agrees that the Screen and related equipment are and shall remain the property of IMPACT, and that the present Agreement does not constitute a purchase of the Screen, but rather, is a contract for services for the use of said Screen only. SUBSCRIBER shall not sell or pledge or otherwise dispose of or deal with the vehicles, Screen and/or related equipment in any manner inconsistent with the rights of IMPACT.
12.2 SUBSCRIBER shall promptly notify IMPACT in writing if any execution is levied against the vehicles, Screen and/or related equipment.
13. FORCE MAJEURE
13.1 If, by reason of inclement weather, road closure/detours, acts of God, labor disputes, strikes, freight embargoes or similar interruption in transportation, fire, other acts of nature, acts of war, terrorist acts, acts of a governmental agency or court of competent jurisdiction beyond IMPACT’S control IMPACT is unable to perform its obligations hereunder, then IMPACT shall be relieved of its obligations during such period of interruption.
14.1 Any notice (“Notice”) to any party under this Agreement shall be in writing by certified or courier service, and shall be effective on the earlier of (a) the date when delivered and received by a person at the address specified within this Agreement, or (b) the date which is three (3) days after mailing (postage prepaid) by certified mail, return receipt requested, or hand delivered courier service to such address; provided that in either case Notices shall be delivered to such other address as shall have previously been specified in writing by such party to all parties hereto at their respective addresses then in effect.
15. GOVERNING LAW
15.1 The validity, interpretation, construction and enforcement of this Agreement shall be governed and controlled by the laws of the State of California, without regard to that State’s rules with respect to choice of law. Any dispute arising out of or related to this Agreement must be brought in federal or state court in Los Angeles County, California, and the parties hereby consent to the exclusive jurisdiction and venue of such forum.
16.1 The Parties agree that any provision of this Agreement deemed void, voidable, illegal, unenforceable or invalid may be reformed to permit enforcement of the objectionable provision to the fullest permissible extent. Any provision of this Agreement deemed unenforceable after modification shall be deemed stricken from this Agreement, with the remainder of the Agreement being given its full force and effect.
17. ENTIRE AGREEMENT
17.1 This Agreement contains the entire agreement between the parties and there are no understandings or agreements, oral or otherwise, between them which is not set forth herein. Any modification or amendment to this Agreement must be in writing and signed by all the parties hereto.