TouchTunes Broadband Services Agreement
1. Providers. TouchTunes has entered into, and may from time to time in the future enter into, agreements (including terms of use and/or applicable use policies, a “Provider Agreement”) with various wired and wireless broadband internet service providers (each, a “Provider” and collectively the “Providers”) by which (i) Providers agree to supply equipment (each, a “Device”) to Customer to connect to, receive and access wireless broadband Internet service, from a Provider or (ii) Providers agree to supply equipment to physical locations where Customer has installed equipment (each, a “Site”) to enable such Sites to connect to, receive and access wired broadband Internet service from a Provider, in each case at discounted pricing.
2. Responsibilities of the Parties.
(a) TouchTunes will notify Customer of one or more Providers that could supply high speed Internet data access via wired or wireless broadband service, including any software, equipment, technical support and any other services provided in connection with the broadband service (the “Broadband Service”), subject to the geographic and technical scope of the Broadband Service and availability of necessary facilities, equipment and access. Customer shall submit a service order form to TouchTunes for the Broadband Service, which form shall be provided by TouchTunes (a “Service Order Form”). Customer acknowledges that it may utilize multiple Providers with respect to different Sites or Devices. Customer agrees to abide by the terms of each applicable Provider Agreement as if Customer was a party to such Provider Agreement. Upon Customer’s written request, TouchTunes may provide Customer a copy of the Provider Agreement applicable to each Site and/or Device as requested, subject to any confidentiality restrictions.
(b) Neither TouchTunes nor any Provider makes any representations or warranties regarding the use or performance of the Broadband Service, except as specifically set forth in a Provider Agreement.Customer shall allow TouchTunes and/or Provider to have access to all applicable Sites, upon reasonable prior notice, to install, inspect, test, rearrange, maintain, repair or remove the Broadband Service.
(c) Customer shall comply with all applicable federal and state laws, rules and regulations relating to the use of the Broadband Service. TouchTunes and each Provider reserve the right to suspend or terminate the Broadband Service (or any portion thereof) without notice to Customer in the event that use of the Broadband Service, in TouchTunes’ or Provider’s sole judgment, violates any Service Order Form, any Provider Agreement to which Customer is subject, any applicable law, regulation or ordinance, the terms of this Agreement, or otherwise adversely affects Provider’s or TouchTunes’ network, service, customers or employees.
(d) Customer acknowledges that TouchTunes is not responsible for providing any services under this Agreement or any Provider Agreement and is solely assisting in facilitating the provision of Broadband Service to Sites and Devices by the applicable Provider pursuant to such Provider Agreement. Customer hereby indemnifies and holds TouchTunes and its affiliates harmless from and against any and all losses, liabilities, damages and expenses suffered, incurred or sustained resulting from (a) any failure by Customer to comply with the terms and conditions of this Agreement, the Provider Agreement to which Customer is subject or any Service Order Form or (b) any breach by Customer of any of its representations, warranties or obligations hereunder or thereunder.
(e) The Broadband Service (i) may not be available in all geographic areas and (ii) shall only be used for commercial purposes and shall not be used for any household or personal purposes. The Broadband Service is intended to be used in the United States of America and Customer will be responsible for any roaming charges incurred when using the Broadband Service.
3. Term. The terms of this Agreement shall be valid beginning on the signature date of each Service Order Form and shall continue for the time frame set forth in such Service Order Form, unless this Agreement is terminated earlier in accordance with the terms herein. The term of each Service Order Form shall be set forth in the applicable Service Order Form (each such term, a “Service Term”). In the event that TouchTunes’ relationship with a Provider expires or is terminated, Broadband Service under the applicable Service Order Form may be terminated or billed directly to Customer by Provider, and TouchTunes shall not provide Broadband Service to any Site(s) or Device(s), as applicable. For the avoidance of doubt, if a Provider terminates Broadband Service for one or more Site(s) or Device(s), TouchTunes shall not be liable to Customer and TouchTunes shall not be obligated to provide Broadband Service, or to cause Broadband Service to be provided, to such Site(s) or Device(s).
Unless otherwise stated in the applicable Service Order Form, TouchTunes will charge Customer, and Customer shall pay to TouchTunes, an Early Termination Fee in the amount of $200 in the event that (i) TouchTunes terminates Broadband Service because Customer is in breach of any terms of this Agreement, any Service Order Form, any applicable Provider Agreement or any other agreement between Customer and TouchTunes or any of its affiliates and has failed to remedy such breach following ten (10) days written notice from TouchTunes or other applicable cure period under such agreement or (ii) Customer terminates Broadband Service before the expiration of the applicable Service Term.
4. Pricing and Payment.
(a) Customer shall be solely responsible for all charges associated with the Broadband Service, including applicable equipment charges, set-up, recurring and termination fees, equipment charges for Provider’s unreturned equipment, taxes, usage charges, tariffs, Federal Universal Service Fund (FUSF) and tax recovery fees, telecommunications surcharges or other applicable governmental charges due on account of the Broadband Service, and any other charges that a Provider may impose on its subscribers, including any applicable insurance costs and shipping and handling charges. The monthly access or service fees for the Broadband Service shall be set forth on the applicable Service Order Form. If the cost to TouchTunes for the Broadband Service increases at any time or from time to time, then Customer shall be responsible for, and pay such increased fees, to TouchTunes effective immediately upon written notice to Customer. Such notice may be provided by electronic mail.
(b) TouchTunes shall begin to bill Customer for (i) wireless Broadband Service approximately seven (7) days following shipment of the wireless broadband equipment to Customer and (ii) wired Broadband Service upon the specific installation date of required equipment or service at a Site by the applicable Provider. Customer shall pay to TouchTunes any amounts owed for Broadband Service, without deduction, setoff or delay for any reason. TouchTunes shall pay the applicable Provider on Customer’s behalf for the Broadband Service ordered and other related charges.
(c) Payment of any amounts owed under this Agreement shall be made within thirty (30) days of the date of the applicable invoice related to Broadband Service. All amounts owed to TouchTunes will be paid in United States Dollars. Such payment cannot be made using (and TouchTunes will not accept) checks with restrictive endorsements or similar statements. Customer shall reimburse TouchTunes for all costs (including reasonable attorney’s fees) associated with collecting delinquent or dishonored payments. If payments are overdue, TouchTunes may assess interest charges at the lower of 1.5% per month (18% per annum) or the maximum rate allowed by law, with such interest accruing from the date that such payments were due and payable.
5. Wireless Broadband Service. Customer is obligated to have any wireless Broadband Service installed and connected directly through the Device, which must be attached to a TouchTunes Jukebox or other TouchTunes manufactured unit approved by TouchTunes for use with wireless Broadband Service, without any product in between the Device and such Jukebox or unit. If Customer fails to install the Device in this manner, TouchTunes will provide Customer ten (10) days’ prior notice to properly connect the wireless Broadband Service. Failure to comply with such installation within such ten (10) day notice period will give TouchTunes the right to disable the wireless Broadband Service to all Devices improperly connected, provided that such disabling will not reduce and Customer must pay to TouchTunes, in accordance with this Agreement, the applicable fees for Broadband Service through the end of the Service Term or the Early Termination Fee.Without TouchTunes’ prior written consent and unless otherwise stated in the Service Order Form, Customer may only use the wireless Broadband Service with respect to a TouchTunes Jukebox. If Customer breaches this Section, in addition to any other remedies set forth herein, Customer shall be responsible for any overage or other charges that may be imposed by the applicable Provider.
6. Breach and Default. TouchTunes may terminate Broadband Service under this Agreement immediately upon written notice if (a) Customer becomes insolvent or involved in a liquidation or termination of its business, files a bankruptcy petition, has an involuntary bankruptcy petition filed against it (if not dismissed within thirty (30) days of filing), becomes adjudicated bankrupt, or becomes involved in an assignment for the benefit of its creditors or (b) there is a breach by Customer of this Addendum, any Provider Agreement, any Service Order Form, or any other agreement between Customer and TouchTunes or TouchTunes’ affiliates and Customer has failed to remedy such breach within ten (10) days or other applicable cure period in such Service Order Form or agreement after written notice thereof. Termination of this Agreement by TouchTunes does not waive payment by Customer of the Early Termination Fee, as described above, or any rights or remedies that TouchTunes may have under any other agreement. Termination or suspension of Broadband Service shall not affect the rights and obligations of the parties hereto under any other agreement.
7. General. In the event that any term of this Agreement conflicts with or is otherwise inconsistent with the terms of the applicable Provider Agreement, the terms of such Provider Agreement shall control. This Agreement shall be governed by and construed under the laws of the State of New York and supersedes all prior oral or written agreements between the parties with respect to the subject matter hereof.
