ABN Standard Terms and Conditions

These Standard Terms and Conditions (the “Standard Terms”) are incorporated by reference in the Master Advertising Services Agreement (the “Master Agreement”) between ABN and the Dealer named in that Master Agreement.  In the event of any conflict between the terms of the Master Agreement and these Standard Terms, the Master Agreement shall control.  As more fully described in the Master Agreement, ABN shall provide hardware for the delivery and showing (both visual and auditory) of advertising, educational and entertainment material (“Content”) over an exclusive network (the “ABN Network”) owned and operated by ABN.

  1. Dealer Obligations as to Equipment.  ABN and not Dealer shall own all of the equipment which ABN is to provide to Dealer under the Master Agreement (which equipment including any software provided in connection therewith is called the “Equipment”).  To facilitate ABN's provision, maintenance and operation of the Equipment the  Dealer shall:  (a) provide ABN and its representatives including any installers for the Equipment reasonable access to Dealer’s facilities (the “Dealer Facilities”) and access to Dealer’s local area network (“LAN”) and the right to connect to such network as necessary or appropriate in ABN’s reasonable judgment for installation and maintenance of the Equipment and performance of ABN’s obligations under the Master Agreement; (b) ensure that the Dealer Facilities are in a safe condition for ABN and its representatives to perform the services required under the Master Agreement; (c) provide ABN and its representatives access to electrical power, Internet connections and direct or indirect access to Dealer's host facilities as necessary for ABN to efficiently perform its services; (d) ensure that the personnel at the Dealer Facility assist and cooperate with ABN as necessary while ABN installs the Equipment, and troubleshoots and isolates any faults in the Equipment and its connectivity; and (e) ensure that the Equipment will, at a minimum, (i) be located indoors, (ii) have a constant temperature between 10 ¼C and 40 ¼C, and (iii) have a constant humidity between 10% and 90%. 

At the end of the term of the Master Agreement (the “Term”), should Dealer not renew, Dealer is responsible for the proper removal and shipment and return of all "Equipment" in good working condition to ABN at a location in the United States specified by ABN.  All risk of loss to the Equipment while located in Dealer Facilities is on Dealer and in the event of a casualty or other loss of the Equipment, Dealer shall pay ABN the costs incurred by ABN for the replacement and reinstallation of the Equipment within thirty days of receipt of ABN’s invoice for such replacement and reinstallation. Dealer agrees to maintain in full force all risk, casualty insurance for the full replacement cost of the Equipment naming ABN as the loss payee on that coverage.  Dealer shall, as requested by ABN provide evidence of such insurance in form reasonably acceptable to ABM. Dealer agrees not to interfere with, or seek to modify or repair, any of the Equipment and shall be responsible for any damage caused to the Equipment by Dealer or its agents, employees or its customers.  Dealer shall not permit any person to remove or obliterate any sticker or other evidence of ABN’s ownership of the Equipment and Dealer shall notify any mortgage or other secured lender of ABN’s ownership of the Equipment.  Dealer shall have no right to grant any party any interest in or lien upon the Equipment.  Dealer acknowledges that all monitors provided by ABN are not televisions as such monitors do not have television tuners.

  1. Termination.  ABN may terminate the Master Agreement if Dealer violates or breaches any provision of the Master Agreement by, including, but not limited to, failing to pay any amounts due under the Master Agreement.  If ABN terminates the Master Agreement as a result of Dealer's nonpayment of any amounts due under the Master Agreement, ABN shall be entitled to accelerate and collect from Dealer all amounts due under the Master Agreement for the remainder of the Term of the Master Agreement.  Notwithstanding any termination of this Master Agreement, Dealer shall remain obligated to pay and shall pay to ABN any and all amounts due to ABN prior to such termination.  Dealer shall return the Equipment in good working condition to ABN at the end of the Term.  Failure to do so shall result in rental costs of $100.00 per day until the Equipment is returned in good working condition.  Dealer may terminate the Master Agreement in the event of a material breach by ABN of its obligations which is not cured within twenty (30) days after ABN receives written notice of such breach from Dealer which notice shall set forth the breach in sufficient detail to facilitate a cure by ABN.

  1. Equipment is Owned by ABN.  All digital assets (including, without limitation, all advertisements and promotional material created or provided by ABN) shall be the exclusive property of ABN and upon termination of the Master Agreement for any reason, all digital assets shall be returned to ABN and Dealer shall cease using such digital assets. Dealer shall have no right to grant any party any interest in or lien upon the Equipment.  

  1. Dealer Provided Content; Security.    ABN shall not review Content created or otherwise provided by Dealer (the "Dealer Provided Content") to be run on the ABN Network at the Dealer Facility prior to its airing on the ABN Network or any part of such network.  Dealer shall be solely responsible for Dealer Provided Content.  ABN shall not be liable for the content of any Dealer Provided Content.  DEALER WARRANTS THAT ALL DEALER PROVIDED CONTENT IS OWNED, OR PROPERLY LICENSED, BY DEALER AND DOES NOT INFRINGE THE PATENTS, TRADEMARKS, COPYRIGHTS, TRADE SECRETS, OR OTHER PROPERTY RIGHTS OF ANY THIRD PARTY.  Dealer is also responsible for security to prevent any unauthorized access to, hacking of, addition of any Content on, or other inappropriate use or access to the Equipment and/or ABN Network through or from the Dealer Facilities.

  1. ABN Provided Content.  In providing Advertising Services to Dealer, ABN grants to Dealer a non-exclusive and limited license to use and show content on Dealer's primary monitor and any additional monitors provided by ABN all Advertising Spots and content provided by ABN over the ABN Network.  With the exception of Dealer Provided Content, ABN shall be the sole and exclusive owner of all right, title, and interest in and to all other content, all copies thereof, and all modifications and enhancements thereto (including ownership of all copyrights and other intellectual property rights pertaining thereto), subject only to the limited license rights that are expressly and specifically granted to Dealer under the Master Agreement including these Standard Terms.  Dealer may not show, use, copy, modify, or distribute the other content (electronically or otherwise), or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by ABN.  Upon the termination of the Master Agreement or at the end of the Term, ABN shall have the right to cease the provision of Advertising Services.  ABN WARRANTS THAT ALL CONTENT PROVIDED BY ABN IS OWNED, OR PROPERLY LICENSED, BY ABN AND DOES NOT INFRINGE THE PATENTS, TRADEMARKS, COPYRIGHTS, TRADE SECRETS, OR OTHER PROPERTY RIGHTS OF ANY THIRD PARTY; PROVIDED, HOWEVER, THAT ANY INFORMATION INTEGRATED BY ABN INTO ITS MATERIALS (INCLUDING, WITHOUT LIMITATIION, DEALER PROVIDED CONTENT, DEALER FACEBOOK PAGES, TWITTTER ACCOUNTS AND DEALER WEBSITES, SHALL REMAIN THE SOLE RESPONSIBILITY OF DEALER AND ABN’S WARRANTY AS TO CONTENT SHALL HAVE NO APPLICATION TO SUCH MATERIALS.

   

  1. Indemnification.  Dealer and ABN agree to indemnify each other and any controlling person, partner, member, director, officer, manager, employee, agent, affiliate, or representative of the other party (collectively, the "Indemnified Parties") and hold each of the Indemnified Parties harmless against any losses, claims, damages, expenses (including the reasonable fees and expenses of their respective attorneys), liabilities, actions, proceedings, investigations (formal or informal), inquiries, or threats thereof to which the Indemnified Parties may become subject, arising in any manner out of or in connection with any breach of the Master Agreement or negligent act or omission of the other party.  This Section 5 shall survive the termination of the Master Agreement.

Notices.  Any notice that is required to be given or served upon any party in connection with the Master Agreement must be in writing and given by a nationally recognized overnight delivery service and shall be deemed to have been given and received when a letter containing such notice, properly addressed, with postage prepaid, is delivered to such overnight delivery service, or sent by facsimile transmission, receipt confirmed, and followed by overnight delivery service.  Notices shall be given to the parties as follows:  if to Dealer, to the address specified on the Master Agreement and, if to ABN, to Brothers Media Group, LLC., 5220 Belfort Road, Suite 300, Jacksonville, FL 32256, Attention: Penny Galloway, Fax:  (904) 280-2677.

The party seeking to be indemnified (the “Indemnified Party”) by the other party (the “Indemnifying Party”) under this Agreement agrees to give the Indemnifying Party prompt written notice of any third party claim (a “Claim”); provided, however, that such notice shall not be a condition to the Indemnifying Party’s indemnity obligations hereunder unless the Indemnifying Party is materially and adversely affected by the Indemnified Party’s failure or delay in giving such notice.  If the Indemnifying Party has reconfirmed, in writing and in a timely manner, its obligations to indemnify the Indemnified Party for a particular Claim, and the Indemnifying Party has provided the Indemnified Party with assurances satisfactory to the Indemnified Party, acting reasonably, that the Indemnifying Party has sufficient resources to satisfy its indemnity obligations hereunder, then the Indemnified Party will allow the Indemnifying Party to control the defense of such Claim as long as the Indemnifying Party acts promptly and reasonably.  The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of such claim.  Any settlement by the Indemnifying Party must be approved by the Indemnified Party, with such approval not to be unreasonably withheld if the Indemnified Party receives a complete release of any such Claim.  Notwithstanding anything herein stated, if in the Indemnified Party’s reasonable judgment, the interests of the parties conflict, the Indemnified Party may select, at the Indemnifying Party’s expense, its counsel as long as the Indemnified Party provides the Indemnifying Party notice of such selection within ten (10) business days after receiving service of a summons and complaint.  Further, notwithstanding anything herein stated, the Indemnified Party shall at all times have the right to fully participate in such defense at its own expense directly or through counsel; provided, however, if representation of both parties by the same counsel would be inappropriate under applicable standards of professional conduct and either party obtains a written legal opinion to such effect, then the reasonable expense of separate counsel for the Indemnified Party shall be paid by the Indemnifying Party.

  1. Installation Policies. 

  1. ABN will not run cabling to a destination unless a display device is in place to receive and confirm the quality of the audio and video signal from the media player. 

  1. The A/V portions of the Network Installation must be performed by an authorized ABN representative. 

  1. Dealer understands that monitors may not be able to be installed in every location Dealer chooses based on dealership architectural limitations (such as on firewalls). Should this occur, Dealer will be notified by ABN and Dealer must either choose an alternate location to install the monitor or agree to pay the additional amount necessary for ABN to facilitate the monitor installation on the Dealer’s first choice location if possible.

  1. Any NON-STANDARD installation charges or optional equipment requested by Dealer will be billed separately and directly to Dealer.

  1. A "Multiple Building" configuration extends the ABN programming to additional display devices located in separate buildings.   No pricing guide shall be provided prior to a Site Survey being performed.
  2. Once the installation is completed, ABN does not assume any costs associated with the relocation of the ABN Equipment, dealer owned display devices, or any other dealer equipment inherent to the viewing experience of ABN. MOREOVER, ABN DOES NOT WARRANT AND HAS NO RESPONSIBILITY FOR THE PROPER OPERATION OF ANY DEALER PROVIDED CABLING, MONITORS, TELEVISIONS OR OTHER SOFTWARE OR HARDWARE WHETHER OR NOT CONNECTED TO OR PART OF THE DELIVER SYSTEM FOR CONTENT.

  1. If Dealer desires to have the ability for its customers to view traditional television programming through the ABN system, Dealer, at its cost, must arrange for the traditional television signal and its interface with the ABN system and must provide televisions for viewing such programming as the monitors provided by ABN do not contain television tuners.

  1. All Dealer provided TV’s must be capable of 720P using HDMI, VGA or Component inputs.

 

  1. Dealer and not ABN shall have sole responsibility for any failures of the Equipment or the failure of delivery of Advertising Services which result from changes in, or errors caused by, Dealer’s network configuration or failure of such network.  Dealer shall notify ABN in advance of any change in Dealer’s network configuration.

  1. Dealer shall designate a minimum of one LAN access port for ABN and its agent’s use.  Dealer agrees, at its cost, to configure its firewalls, routers and other protective hardware and software to allow bi-directional push and pull access between ABN and its agents and the on-site Equipment as necessary or appropriate for ABN to fulfill its obligations under the Master Agreement or provide a dedicated DSL connection to facilitate the communication.

  1. Dealer shall designate one IT person within Dealer’s organization (and provide such person’s business and after-hours telephone contact information) as the primary contact to support both installation and maintenance of the Equipment and delivery of the Advertising Services.

  1. Dealer shall use commercially reasonable efforts to maintain its network connectivity and performance at appropriate levels to support the ABN delivery of Advertising Services and to cooperate with all reasonable requests to resolve network access problems including, without limitation, ISP access problems, LAN configuration problems, LAN equipment failures and performance problems.  Dealer’s network shall have a minimum of 1 Mbs download and 500 Kbs upload effective rate and shall be online 24/7/365 except for normally scheduled maintenance, repair or upgrade cycles.  LAN access port shall be no less than 100 Mbs into the LAN.  The Dealer’s network must allow for integration of an ABN managed Virtual Private Network (VPN) device which requires both outbound Cisco IPSec traffic and outbound HTTP and HTTPS traffic on port 80 and port 443 to the abnetwork.com domain.

  1. In the event of connection constraints during peak periods of network use, Dealer shall provide at least a daily 8 hour window where full data bandwidth will be available to ABN and its agents.

  1. ABN media players and associated networking devices require continuous power.  Dealer shall provide access or allow ABN to install at the Dealer’s expense a suitable power drop on a suitable power circuit for the media player and other required networking devices supplying the minimum ampacity of 10 amps 24/7/365.  The power circuit must meet the following National Electrical Code requirements:

  1. The circuit must not have any switches or motors such as compressors or fans.
  2. The ampacity of the circuit breaker must not exceed the ampacity of the wire used for the media player and equipment.
  3. Where a circuit supplies continuous loads or any combination of continuous and noncontinuous loads, the rating of the overcurrent device shall not be less than the noncontinuous load plus 125 percent of the continuous load.
  4. The circuit conductors and equipment shall be protected by overcurrent protective devices that have a rating or setting that complies with 210.20(A) through (D).

  1. Dealer shall provide access to the Dealer's network to permit ABN to download content and otherwise perform its services hereunder.  In the event that the Dealer's network is not accessible to ABN for that purpose or Dealer's firewalls prevent ABN from performing its services, Dealer will bear the cost of ABN's establishing a separate Internet access to the Equipment to perform its services.

  1. Liability Limitations.
  1. EXCEPT TO THE EXTENT LIABILITY ARISES OUT OF (A) A BREACH BY EITHER PARTY OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN HEREIN OR (B) A PARTY’S INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THIRD PARTY CLAIMS AS SET FORTH HEREIN, NEITHER PARTY NOR ANY OF ITS AFFILIATES SHALL BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR DAMAGES IN THE FORM OF CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES, LOST PROFITS, LOST SAVINGS, LOSS OF GOODWILL OR OTHERWISE, OR FOR EXEMPLARY DAMAGES, EVEN IF THE FIRST PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  1. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE LIMIT OF ABN’S LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) TO COMPANY RELATED TO THIS AGREEMENT, FOR ANY AND ALL CLAIMS WILL NOT IN THE AGGREGATE EXCEED AN AMOUNT EQUAL TO THE ADVERTISING PAYMENTS RECEIVED BY ABN FROM DEALER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE LIABILITY FIRST AROSE.

  1. IF THE ADVERTISING SERVICES OR ANY OF THE CONTENT PROVIDED BY ABN ARE, OR IN THE OPINION OF ABN MAY BECOME, THE SUBJECT OF A CLIENT INDEMNIFIABLE CLAIM, THEN ABN MAY, AT ITS OPTION AND EXPENSE: (A) PROCURE FOR DEALER THE RIGHT TO USE THE SERVICES AND SUCH CONTENT IN THEIR THEN CURRENT FORM, (B) REPLACE THE SERVICES OR CONTENT WITH OTHER SERVICES OR CONTENT WHICH ARE EQUAL OR BETTER IN PERFORMANCE THAN THE SERVICES ON CONTENT REPLACED, (C) PROVIDE DEALER WITH A MODIFIED VERSION OF THE SERVICES OR CONTENT, OR (D) REMOVE THE SERVICES AND/OR TERMINATE THIS AGREEMENT (THE “ABN OPTION”).  IN THE CASE OF (B)-(D), DEALER AGREES TO COOPERATE WITH THE ABN OPTION AND TAKE SUCH FURTHER STEPS AS ARE NECESSARY TO EFFECTUATE SAME OR TERMINATE THE AGREEMENT.. THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND OBLIGATION OF ABN AND THE EXCLUSIVE REMEDY OF DEALER WITH RESPECT TO ANY ALLEGED INFRINGEMENT, MISAPPROPRIATION OR OTHER VIOLATION OF INTELLECTUAL PROPERTY BY ABN.

  1. NEITHER PARTY HERETO SHALL HAVE ANY LIABILITY FOR FAILUES TO PERFORM      DUE TO FORCE MAJEURE CAUSES BEYOND SUCH PARTY’S CONTROL, INCLUDING, WITHOUT LIMITATION, POWER FAILURES, STORMS, AND NETWORK PROVIDER FAILURES.

.

  1.  Other Provisions.

  1. ABN's liability for failure to provide Advertising Services for any period during the Term shall be limited to the Advertising Services Fees prorated for the period during which Advertising Services were not provided.  In no event shall ABN's liability hereunder exceed the total amount of fees that ABN receives from Dealer during the Term of the Master Agreement. 
  2. If a dispute arises regarding the Master Agreement, the prevailing party shall be entitled to recover from the non-prevailing party, in addition to all other legal or equitable remedies, the costs of litigation, including reasonable attorneys' fees and costs.
  3. No waiver by any party of any default or breach of any covenant hereunder shall be deemed to extend to any prior or subsequent defaults or breaches of any covenants hereunder or affect in any way any rights arising by virtue of any prior or subsequent default or breach.
  4. The laws of the State of Florida shall govern the interpretation, construction, and legal effect of the Master Agreement and these Terms and Conditions.  In the event of any litigation arising from the Master Agreement, the parties agree that to the exclusive jurisdiction for such litigation in Duval County, Florida and the Florida State Courts in and for the Fourth Judicial District or the Federal Court for the Middle District of Florida, Jacksonville Division.  Dealer hereby consents to personal jurisdiction in the State of Florida.
  5. ABN reserves the right to assign its rights or obligations under the Master Agreement and these Standard Terms at any time.  Dealer shall not assign any rights or obligations under this Master Agreement, or delegate the performance of any duties hereunder, without the prior written contest of ABN.
  6. ABN agrees that under no circumstances will any advertising provided by ABN as part of the content advertise any products or services which compete with any automotive products or services offered by Dealer.
  7. ABN shall have the right, but is not obligated, to pay commissions to 3rd party marketing agencies in accordance with normal industry practices.
  8. Dealer agrees to maintain the confidentiality of the Master Agreement and these Terms and Conditions and shall not disclose any terms set forth therein to any other party.
  9. AS A MATERIAL PART OF THE CONSIDERATION FOR THIS AGREEMENT, EACH PARTY TO THIS AGREEMENT WAIVES THE RIGHT TO A JURY TRIAL WITH RESPECT TO ANY DISPUTE OR OTHER MATTER ARISING OUT OF THIS AGREEMENT OR THE RELATIONSHIP OF THE PARTIES IN CONNECTION WITH THIS AGREEMENT WHERE SUCH MATTER IS BASED ON CONTRACT OR A TORT.