EXCLUSIVE ADVERTISING AGREEMENT

This EXCLUSIVE ADVERTISING AGREEMENT (the “Agreement”) is made and entered into as of the 21 day of December, 2018 (the “Effective Date”), by and between OUTDOOR EVENTS ASSOCIATION, LLC (“OEA”), a Delaware limited liability company with an office at 3708 River Trace Lane, Knoxville, Tennessee 37920, and the person or entity hereby agreeing to use and access OEA’s online portal available at OutdoorEvents.us or such other Internet website as OEA may designate from time to time (“OEA Portal”) in accordance with the terms of this Agreement (“PRO”).

OEA PROVIDES THE OEA PORTAL SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT, THE TERMS OF USE AND THE PRIVACY POLICY AND ON THE CONDITION THAT ORGANIZER ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT ORGANIZER IS LEGALLY BOUND BY ITS TERMS; (B) ACCEPT THE OEA PORTAL’S TERMS OF USE AND PRIVACY POLICY AND (C) REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF ORGANIZER IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND ACCEPT THE TERMS OF USE AND PRIVACY POLICY, ON BEHALF OF ORGANIZER AND BIND ORGANIZER TO THEIR TERMS. OEA RESERVES THE RIGHT TO MODIFY THE TERMS OF USE OR PRIVACY POLICY AT ANY TIME AND WITHOUT NOTICE TO ORGANIZER. IF ORGANIZER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, THE TERMS OF USE OR THE PRIVACY POLICY, OEA WILL NOT AND DOES NOT GRANT ORGANIZER A LICENSE TO USE OR ACCESS OR USE THE OEA PORTAL AND ORGANIZER MUST NOT ACCESS OR USE THE OEA PORTAL.

AGREEMENT

For and in consideration of the mutual promises contained herein, PRO and OEA do hereby covenant, contract, and agree as follows:

    Article 1: APPOINTMENT; EXCLUSIVITY

    1. PRO hereby appoints OEA as its exclusive agent for the following purposes during the Term:
      1. To select and place advertising material on or inside any portable restroom units (“Units”), portable restrooms and shower trailers (“Trailers”), barricades, other similar units (collectively with Units and Trailers, “Advertising Assets”) that PRO owns, subcontracts, or otherwise operates;
      2. To choose advertising clients (“Advertisers”), formats of advertisements, and the content of advertisements; and
      3. To set and change the prices of advertisements paid by the Advertisers.
    2. During the Term, PRO shall not accept on its own or through any third party any advertising business on or inside any Advertising Assets from any person, entity, or business other than OEA, without written consent from OEA or its duly appointed representatives.
    3. OEA shall have the sole discretion over the operation of the advertising business, as outlined in Section 1.1, under this Agreement. OEA agrees to comply with any state, federal, and municipal laws and regulations pertaining to the content and placement of advertisements.
  1. Article 2: RELATIONSHIP; RESPONSIBILITIES; AGREEMENT NOT TO COMPETE

    1. OEA is an independent contractor and shall pay its own state taxes, federal taxes, employment taxes, insurance and any other taxes required by state and federal law.
    2. As between OEA and PRO, OEA shall pay all expenses incurred in the process of placing advertisements, including:
      1. Any costs associated with the design of the advertisements; and
      2. Any costs associated with printing and application of the advertising material to the Advertising Assets, including wrapping the Advertising Assets, subject to the provisions in Article 5 of this Agreement. For advertisements applied to the interior or exterior of an Advertising Asset, OEA will use the most appropriate material for the particular application, in OEA’s sole discretion.
    3. Subject to and conditioned upon PRO’s strict compliance with all terms and conditions set forth in this Agreement, the Terms of Use and Privacy Policy, OEA hereby grants to PRO a non-exclusive, non-transferable, non-sublicensable, limited license during the Term (as defined below) to access and use the OEA Portal to facilitate the sale of advertising on Advertising Assets at Events (as defined below). PRO shall not permit any other person to access or use the OEA Portal without the prior written consent of OEA. Through PRO’s OEA Portal account, PRO shall invite event organizer customers (“Organizers”) to register events on the OEA Portal (each an “Event”). PRO shall provide to OEA all information requested by OEA in the OEA Portal during the registration process. PRO acknowledges and agrees that certain information regarding PRO’s interaction with the OEA Portal and information submitted to the OEA Portal will be viewable by other users of the OEA Portal and does not constitute confidential information. Organizer contact information provided by PRO shall not be shared with or otherwise made available to, any other portable restroom operators or other competitors of PRO.
    4. For each Event at which PRO provides Advertising Assets, PRO shall upload digital photographs to the OEA Portal showing that placement of all wrapped Advertising Assets provided by PRO are consistent with the locations shown on the OEA Portal or as otherwise provided by OEA. PRO shall upload photographs of all wrapped Advertising Assets within twenty-four (24) hours of placement.
    5. If this Agreement terminates early, then for the balance of the Term (as defined below) and for a period of five (5) years thereafter, PRO shall not, either directly or through any of its subsidiaries, provide any service or engage in any activity in the United States, including those outlined in Section 1.1, that is substantially similar to the services and activities provided by OEA under this Agreement, absent written consent from OEA or its duly appointed representatives.
    6. If this Agreement terminates at the end of its Term (as defined below), then for a period of one (1) year thereafter, PRO shall not, either directly or through any of its subsidiaries, provide any service or engage in any activity, including those outlined in Section 1.1, that is substantially similar to the services and activities provided by OEA under this Agreement, absent written consent from OEA or its duly appointed representatives.
    7. PRO will provide OEA with access (and the right of access) to the facilities where Advertising Assets are located (“Premises”) to allow OEA to wrap all Advertising Assets before applicable Events. The time and date of OEA’s entrance onto the Premises shall be as mutually agreed by the parties, but shall not be later than the date and time specified by OEA, in its reasonable discretion, to ensure OEA has sufficient time to wrap the Advertising Assets. PRO shall clean and place Advertising Assets inside a docking bay or covered area (if available) at least twenty-four (24) hours prior to OEA’s arrival date.
    8. PRO acknowledges and agrees that it is OEA’s intent to utilize wrapped Advertising Assets for multiple events. PRO shall make best efforts to store wrapped Advertising Assets in a manner that enables them to be reused. PRO will notify OEA of known damage to Advertising Assets and respond in a timely manner to any requests for verification of quality and availability of the wrapped Advertising Asset for future use. PRO shall not re-use or re-locate any wrapped Advertising Assets and agrees that any advertisement featured on a wrapped Advertising Asset shall only be displayed in connection with the particular Event or group of several Events (as designated in a package on the OEA Portal, an “Event Package”) for which it was prepared. If due to inventory constraints an Advertising Asset is required for use at any other Event other than one designated by OEA, PRO shall (i) immediately notify OEA as soon as PRO is aware of such inventory constraints, and (ii) remove all advertising material prior to movement and placement at such other Event unless otherwise instructed by OEA.
    9. PRO shall obtain all permits, licenses, consents, approvals and other authorizations required from any governmental authority in connection with the operation of any and all Advertising Assets.
    10. PRO agrees to allow OEA to wrap up to two (2) Units for its own promotional purposes and PRO will make best efforts to keep in circulation (where permitted).
  2. Article 3: TERM AND TERMINATION

    1. This Agreement shall begin on the Effective Date and continue for a period of five (5) years (the “Initial Term”). Thereafter, the Agreement renew for successive renewal terms of five (5) years (each, a “Renewal Term”) unless either party gives written notice to the other party of its intention not to renew at least one (1) year prior to expiration of the Initial Term or then-current Renewal Term. The Initial Term and all Renewal Terms are collectively referred to herein as, the “Term.”
    2. If either party believes that the other has materially breached any obligations under this Agreement, the party shall notify the breaching party in writing as provided in Section 6.7 below. The breaching party shall have thirty (30) days from the receipt of notice to cure the alleged breach. If the breach is not cured within thirty (30) days, the non-breaching party has the right to terminate the Agreement upon giving written notice, effective immediately.
    3. In the event of any termination or upon expiration of this Agreement, PRO shall promptly remove any advertising material from the Advertising Assets, and all rights, licenses (including PRO’s limited license to use and access the OEA Portal), consents and authorizations granted by OEA to PRO hereunder will immediately terminate. OEA retains the right to delete or suspend PRO’s account on the OEA Portal or otherwise suspend PRO’s access to the OEA Portal at any time, with or without cause, at OEA’s sole discretion. Sections 2.5, 2.6 and 2.7, this Section 3.3 and Articles 5 and 6 shall survive any termination or expiration of this Agreement.
  3. Article 4: FEES

    1. OEA shall pay fees to PRO for its placement of the Advertising Assets as directed by OEA at specified events as follows:
      1. For Units:
        1. Exterior: $30.00 per Unit for an advertisement purchased by the Advertiser per Event.
        2. Interior: $1.00 per square foot for each advertisement purchased by the Advertiser per Event.
      2. For Trailers:
        1. Exterior: $1.00 per square foot for each advertisement purchased by the Advertiser per Event.
        2. Interior: $1.00 per square foot for each advertisement purchased by the Advertiser per Event.
      3. For all other Advertising Assets:
        1. Fees will be mutually agreed upon and incorporated in an addendum to this agreement.
    2. PRO shall not receive, and is not entitled to the following fees or costs: (a) Fees incurred for the placement of wrapped Advertising Assets if the Advertiser has not purchased the specific advertising for that specific Event; and (b) Fees for any advertisements featuring Outdoor Events Association or its affiliates or OutdoorEventsAssociation.com or OutdoorEvents.us branding.
    3. OEA agrees to pay all fees to PRO within thirty (30) days after each event that an advertisement has been sold and distributed and the terms of Section 2.4 have been met.
  4. Article 5: LIABILITY

    1. PRO shall be responsible for any damage to the advertising material on the exterior or interior incurred during the process of storage, delivery, transportation, or removal of the Advertising Assets. In the event that any advertising material is damaged during the process of storage, delivery, transportation, or removal of the Advertising Assets, PRO shall notify OEA, and PRO shall pay all costs associated with removing the damaged advertising material and re-wrapping the Advertising Assets, if necessary. OEA assumes no responsibility for the the provision, operation or maintenance of any Advertising Asset or other portable restroom or sanitation services, which PRO hereby acknowledges and agrees is outside of OEA’s control. PRO remains responsible for all non-advertising related matters related to their business engagement or transaction with any Organizer or other customers, including contracting, delivery, and all other operational matters.
    2. PRO shall indemnify, defend and hold harmless OEA and its affiliates and its and their officers, directors, managers and members from and against all damages, demands, claims, suits, actions or causes of action, assessments, judgments, fines, losses, liabilities, costs, fees (including reasonable attorneys’ fees) and expenses asserted against, resulting to, imposed upon or incurred by any such Indemnified Party, directly or indirectly, by reason of, resulting from or arising out of: (a) PRO’s breach of this Agreement (b) PRO’s negligence, willful misconduct or violation of law; and (c) PRO’s operation, maintenance or handing of any Advertising Asset.
    3. OEA DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
    4. IN NO EVENT SHALL OEA BE LIABLE TO PRO OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES) ARISING OUT OF OR CONNECTED IN ANY WAY WITH OEA’S PERFORMANCE UNDER THIS AGREEMENT, EVEN IF OEA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OEA’S TOTAL LIABILITY TO PRO FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT OR OTHERWISE), SHALL NOT EXCEED THE AMOUNT OF THE FEES ACTUALLY PAID BY OEA FOR THE EVENT GIVING RISE TO THE LIABILITY.
  5. Article 6: GENERAL PROVISIONS

    1. Entire Agreement. This Agreement is the exclusive statement of the agreement among the parties concerning the subject matter hereof. All negotiations, disclosures, discussions and investigations relating to the subject matter of this Agreement are merged into this Agreement, and there are no representations, warranties, covenants, understandings, or agreements, oral or otherwise, relating to the subject matter of this Agreement, other than those included herein.
    2. Modifications. Modifications, changes, or amendments to this Agreement, and the relationship established thereby, shall be valid only if in written form, and signed by the parties to this Agreement, or their authorized agents.
    3. Waiver. A waiver of one default does not constitute a waiver of another default, nor does it establish a course of conduct in which the defaulting party may continue to default with the expectation of waiver.
    4. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties, their successors, heirs, personal representatives, and assigns.
    5. Assignment of Rights. Neither party may assign or transfer its rights or delegate its obligations under this Agreement without the prior written consent of the other party; provided, that either party may assign or transfer its rights or delegate its obligations under this Agreement without the prior written consent of the other party in the event of an affiliation, merger, acquisition, sale or disposition of substantially all of its assets.
    6. Severability. If a court holds that any term or condition of this Agreement or the application thereof to any person or circumstance would be illegal, unenforceable, or void as violative of public policy, the remaining terms and conditions of this Agreement shall not be affected and will be valid and enforced to the full extent permitted by law.
    7. Notice. All notices, requests, demands, claims, and other communications hereunder shall be in writing. Any such notice, request, demand, claim, or other communication shall be deemed duly given 4 business days after being mailed to the recipient by certified or registered mail, return receipt requested and postage prepaid and addressed as set forth below:
      If to OEA: If to PRO:
      Matt Tunstall
      President
      3708 River Trace Lane
      Knoxville, TN 37920
      At the contact information provided by PRO on the OEA Portal
    8. Mediation; Choice of Law. In the event of a dispute arising from this Agreement, both parties agree to enter into mediation before seeking resolution through litigation. Mediation shall be conducted by a mediator agreed upon by both parties and shall be conducted in a forum convenient for both parties. Both parties agree to conduct the mediation discussions with a good faith effort to resolve the issue. If mediation is unsuccessful or the party’s cannot mutually agree on a mediator or the forum of the mediation, either party may resort to an action in a court of law or equity. The prevailing party shall have the right to collect from the other party its reasonable costs and attorneys' fees incurred in enforcing this Agreement. This Agreement, and any dispute arising out of this Agreement, shall be construed, interpreted, and enforced pursuant to the laws of the state of Tennessee. Disputes under or relating to this Agreement must be brought in a court of competent jurisdiction located in Knox County, Tennessee.