Gym Wipes Terms

11. Representations and Warranties. Terraboost represents and warrants to Company that (i) it is qualified to do business under the laws of each jurisdiction in which it is required by law to be so qualified, (ii) it has all of the power and authority to enter into and perform its obligations under this Agreement and that this Agreement is binding upon and enforceable against Terraboost in accordance with its terms, (iii) the Advertising, Displays, Sanitizer and Wipes will comply, in all material respects, with the laws in each jurisdiction where they are installed or used in the Locations, and that the Sanitizer and Wipes are fit for consumer use; (iv) its products or services, and the labeling thereof and advertising therefore, are in compliance, in all material respects, with all applicable federal, state, and local laws, regulations and requirements, (v) Terraboost has the legal right to place all Advertising and Displays referenced in this agreement, and (vi) the use of the Displays will not and Terraboost will require each advertiser to certify that its advertisements will not violate any third party intellectual property rights, or be tortious in any manner whatsoever.   Company represents and warrants to Terraboost that (i) Company is qualified to do business under the laws of each jurisdiction in which it is required by law to be so qualified, (ii) Company has all of the power and authority to enter into and perform its obligations under this Agreement and that this Agreement is binding upon and enforceable against Company in accordance with its terms and (iii) Company is the owner or tenant or subtenant of the premises of  Location. In the event that a Location is leased or subleased to Company or is covered by a separate management, franchise or operating agreement and a third party’s consent is required for the installation of the Displays, Company agrees and undertakes to promptly and timely seek and to use commercially reasonable efforts to obtain such consent and deliver such consent to Terraboost, it being understood and agreed that in the event that such consent is not able to obtained despite such commercially reasonable efforts, no Displays will be installed at such location (as such club location is not a Location).

12. Warranty Disclaimer.  WITH EXCEPTION TO THE WARRANTIES SPECIFIED IN SECTION 11, ABOVE, Terraboost MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE DISPLAYS, THE SANITIZER, THE WIPES, OR ANY OTHER TERRABOOST PRODUCT PROVIDED HEREUNDER, AND HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

13. Insurance & Terraboost Indemnity.  Terraboost has and will maintain general liability insurance with coverage in the amount of $1 million each occurrence and $2 million general aggregate, with maximum coverage of $10 million pursuant to umbrella coverage.  Terraboost will cause Company to be named as a non-contributory additional insured under such policy. Terraboost will, at its expense, defend or, at its option, settle any third-party claim brought against Company, to the extent that it is based on a claim: (i) that Company’s use or possession of the Displays, wipes, or sanitizer (collectively, the “Terraboost Products”) provided to Company by Terraboost under this Agreement infringes any U.S. patent or copyright or misappropriates the trade secrets of any third party, or (ii) that the gross negligence or misconduct of Terraboost directly caused bodily injury, death, or damage to tangible property, and will pay all damages and costs (including reasonable legal fees) awarded by a court of final appeal attributable to such claim, provided that Company notifies Terraboost in writing of any such claim as soon as reasonably practicable and allows Terraboost to control, and reasonably cooperates with Terraboost in the defense of, any such claim and any related settlement negotiations. Notwithstanding the foregoing, Terraboost will have no liability for any claim which is based on (a) the modification of the Terraboost Products by a party other than Terraboost or its designee, (b) the use of the Terraboost Products other than in accordance with this Agreement or any applicable documentation; or (c) the gross negligence or willful misconduct of, or breach of this Agreement by, Company, its employees, contractors, or agents, including, without limitation, any failure to clean in and around the Displays as required by this Agreement (it being understood and agreed that Company shall indemnify and hold harmless Terraboost and its officers, employees, members, managers and affiliates from and against all losses, damages, liabilities, claims and expenses (including, without limitation, reasonable attorneys’ fees) due to or arising out of any of the actions, conditions, events or circumstances described in the preceding clauses (a), (b) or (c)). In the event that an injunction is sought or obtained against Company’s use of the Terraboost Products as a result of any such claim, in addition to Terraboost indemnification obligations hereunder, Terraboost may, at its option, do one of the following: (1) procure for Company the right to continue using the affected Terraboost Products; or (2) replace or modify the affected Terraboost Products so that they do not infringe. In the event that neither (1) nor (2) are commercially practicable, Terraboost may terminate this Agreement without liability. THE FOREGOING CONSTITUTES THE ENTIRE LIABILITY OF TERRABOOST, AND COMPANY’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.  

14. Waiver of Consequential Damages.  IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE TERRABOOST PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES DUE TO LOSS OF BUSINESS, PROFITS, INCOME OR OTHER ECONOMIC ADVANTAGE, EVEN IF TERRABOOST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.  

15. Limitation of Liability.  TERRABOOST’S TOTAL LIABILITY UNDER THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND THEORIES OF LIABILITY, WILL BE LIMITED TO DIRECT, REASONABLY FORESEEABLE DAMAGES AND SHALL NOT EXCEED THE GREATER OF: (I) THE AMOUNTS PAID BY INSURANCE CARRIED BY TERRABOOST UNDER THIS AGREEMENT OR (II) FIFTY THOUSAND DOLLARS ($50,000).   THE PARTIES AGREE THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.     EXCEPT AS STRICTLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY OTHER WARRANTY, EXPRESS OR IMPLIED WITH RESPECT TO ITS PRODUCTS AND SERVICES.  EACH PARTY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, DAMAGES DUE TO LOSS OF BUSINESS, PROFITS, INCOME OR OTHER ECONOMIC ADVANTAGE, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.  THE PARTIES AGREE THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.

17. Entire Agreement; Waiver; Remedies Cumulative.  This Agreement and its exhibits constitute the sole and entire agreement between the parties related to its subject matter, and supersedes any other prior or contemporaneous understandings, whether oral or written, between the parties with respect to its subject matter.  This Agreement may be amended or modified, and its provisions waived, only by a writing signed by both parties in the case of an amendment or the waiving party in the case of a waiver. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.  No delay on the part of either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any Party of any such right, power or privilege, nor any single or partial exercise of any such right, power or privilege, preclude any further exercise thereof or the exercise of any other such right, power or privilege. Except as otherwise provided herein, the rights and remedies herein provided are cumulative and are not exclusive of any rights or remedies that either Party may otherwise have at law or in equity.

18. Assignment.   Company may not assign this Agreement, by operation of law or otherwise, without the prior written consent of Terraboost, which consent will not be unreasonably withheld or delayed.  Terraboost may assign its rights hereunder and/or grant a security interest in or transfer title to the Displays to third parties, in whole or in part, without notice to or the consent of Company, and Terraboost’s assignee or secured party may reassign such rights and/or security interests without notice to or the consent of Company.  This Agreement shall be binding upon, and shall inure to the benefit of, each Party’s successors and permitted assigns.

19. Publicity.  As the existence of the relationship between Company and Terraboost is of significant marketing value to the parties, during the term of this Agreement, each party will be entitled to announce publicly its relationship with the other party and to publish references to that relationship, provided that each party will seek prior approval of each such announcement from the other party, which approval shall not be unreasonably withheld, conditioned, denied, or delayed.

20. Confidential Information.  Company understands that (i) the specific terms and pricing set forth in this Agreement, and (ii) all other non-public business or technical information of Terraboost to which Company has access during the term of this Agreement (or to which Company was given access prior to the term of this Agreement) will be considered Terraboost’s Confidential Information (collectively, the “Confidential Information”). Company agrees not to use the Confidential Information except as necessary for its performance of this Agreement, and will not disclose such Confidential Information to any third party, except to those of Company’ employees or contractors that need to know such Confidential Information for the purpose of performing this Agreement, and provided that each such employee or contractor is subject to a written agreement or similar binding obligation that includes use and disclosure restrictions that are at least as protective as those set forth herein.  Company will maintain in strict confidence all Confidential Information in its possession or control and will return to Terraboost or destroy, with written notice of destruction delivered to Terraboost, all Confidential Information in its possession or control upon the expiration or termination of this Agreement. Company’s confidentiality obligations hereunder shall survive the expiration or termination of this Agreement and the return or destruction of the Confidential Information. Company acknowledges that money damages would be inadequate to remedy any breach of this Agreement and, accordingly, Terraboost shall be entitled to injunctive relief in connection with any breach or threatened breach of this Section.

21. Intellectual Property Rights.  Each Party agrees that it will not utilize any proprietary mark or intellectual property of the other Party in any manner without first obtaining the prior written consent of the other Party, and if such prior written consent is obtained, shall only use the proprietary mark in the manner specifically permitted by the other Party.  Company shall not have any right, title and interest or ownership of the third-party advertising material on the Displays. Company shall not use or reproduce or permit the use or reproduction (direct or indirect), of the Advertising material in any manner except as provided by this Agreement.

22. Force Majeure.  In the event of an inability or failure by either Party to deliver any products or perform any services or otherwise perform any of its obligations hereunder by reason of any fire, explosion, war, riot, strike, walkout, labor controversy, flood, shortage of water, power, labor, transportation facilities or necessary materials or supplies, default or failure of carriers, breakdown in or the loss of production or anticipated production from plant or equipment, act of God or public enemy, any law, act or order of any court, board, government or other authority of competent jurisdiction, public health pandemic (provided such public health pandemic actually prevents a Party from performing its Services hereunder) or crises (whether regional, national or international), or any other cause beyond the reasonable control of the Parties (collectively, “Force Majeure Events”), then the affected Party shall not be liable to the other Party or obligated to perform its applicable obligations hereunder during the period and to the extent of such inability or failure; however, the affected Party’s obligations shall re-commence promptly following the end of the applicable Force Majeure Event.

24. Governing Law.  The Parties agree that this Agreement will be governed by and construed in accordance with the laws of the State of Wyoming without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Wyoming to the rights and duties of the Parties.

25. Binding Effect.  This Agreement and all of its provisions, rights and obligations shall be binding upon and shall inure to the benefit of the Parties and their respective successors, assignees, heirs and legal representatives. No provision of this Agreement, whether express or implied, is intended to be or shall be construed to confer upon or to give anyone other than the Parties and their respective heirs legal representatives and successors, any rights or benefits under or by reason of this Agreement, and no other party shall have any right to enforce any of the provisions of this Agreement.

26. Jurisdiction; Venue. Each of the Parties agrees to submit voluntarily to, and irrevocably consents to, the exclusive jurisdiction of the State and Federal courts located in the State of Wyoming and to waive and agree not to assert any defense of lack of personal jurisdiction, improper venue or forum non conveniens.

27. Severability. If any provisions of this Agreement for any reason shall be held to be illegal, invalid or unenforceable, such illegality shall not affect any other provision of this Agreement, but this Agreement shall be construed as if such illegal, invalid or unenforceable provision had never been included herein.

28. Interpretation. Unless the context otherwise requires, the terms used in this Agreement shall have the meanings herein specified for all purposes of this Agreement, applicable to both the singular and plural forms of any of the terms defined herein.  When a reference is made in this Agreement to Sections, such reference shall be to a Section of this Agreement unless otherwise indicated.  The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”.