Full Terms and Conditions of Mesmerize Digital Participation Agreement

1. The Program

1.1 Mesmerize will install Standard MD Equipment at the premises of the Participating Office. The parties will cooperate in good faith to promptly schedule the installation of all MD Equipment, including applicable Non-Standard MD Equipment. The installation of any Non-Standard MD Equipment must, however, be agreed by the parties before installation is scheduled and may be subject to additional fees.

2. Installation and Customer Support

2.1 Mesmerize will have the following obligations:

a) Mesmerize will obtain and install all agreed upon MD Equipment at the Participating Office.

3. Term; Termination; Program Modification: MD Equipment Ownership and Removal

3.1 MD program is offered to the Participating Office at no cost.

3.2 Term. The initial term of this Agreement will commence on the Active Date and will continue for three (3) years. Thereafter, this Agreement shall automatically renew for successive one-year terms, unless terminated by either party.

3.3 Termination and Modification by Mesmerize. Mesmerize may terminate this Agreement at any time to be effective immediately upon written notice of such termination to the Participating Office. In addition, Mesmerize may discontinue or modify any or all components of the Program.

3.4 MD Equipment Ownership and Removal.

a) At all times, Mesmerize shall be the sole owner of MD Equipment located within or installed at the premises of the Participating Office.

b) If Mesmerize terminates this Agreement or discontinues any component of the Program, Mesmerize may remove all MD Equipment at Mesmerize’s expense.

4. Other Definitions. In addition to the terms defined in this Agreement, the following terms shall have the meaning set forth below:

4.1 “Brochure Rack” means a component of MD Equipment consisting of a brochure rack.

4.2 “Display” means a component of MD Equipment consisting of a flat-screen display.

4.3 “NON-RX” means MD Program Content not pertaining to prescription pharmaceuticals.

4.4 “Non-Standard MD Equipment” means any component of MD equipment other than those items listed in the definition of Standard MD Equipment.

4.5 “Mesmerize Digital,” “MD” or “MD Network” means a proprietary network of digital signage and office wallboards owned and operated by Mesmerize through which MD Program Content is distributed.

4.6 “MD Equipment” means audio-visual and other equipment which enables the Participating Offices to broadcast or otherwise distribute the MD Program Content on its premises. MD Equipment includes in-office waiting room screens, wallboards, pamphlets and brochures.

4.7 “MD Program Content” means the media content consisting of advertising, instruction or entertainment (e.g., pharmaceuticals, over-the-counter products, national brands, healthcare, weather, music, television, motion pictures, sports, news,) to be distributed on the Participating Offices premises by means of MD Equipment. The MD Program Content may be in the form of either digital video or brochures, as applicable.

4.8 “Program” means the installation and operation of MD Equipment and the distribution of MD Program Content in accordance with the provisions of this Agreement.

4.9 “Standard MD Equipment” means the following standard-level components of MD Equipment in the quantities indicated: (i) Display; (ii) wall mount for Display; (iii) media player; (iv) audio speaker if needed, (v) Brochure Rack, (vi) cabling in the amount reasonably necessary for Standard MD Equipment installation, and (vii) site survey (viii) standard wallboard.

5. Installation and Customer Support

a) Mesmerize will provide customer service support regarding the operation of MD Equipment, including hardware and software issues.

b) Mesmerize will prepare all necessary training instructions for the Participating Office as may be reasonably required for the operation of the MD Network.

c) Mesmerize will provide brochures from time to time to the Participating Office for fulfillment of the Brochure Rack.

d) Mesmerize will provide access to online tools for Participating Office to customize portions of the programming on their installed MD Equipment.

5.2 Mesmerize will consult with the Participating Office regarding the location of the MD Equipment and the method of installation of the MD Equipment, provided that, Mesmerize will have the ultimate discretion on deciding the location and the method of installation of the MD Equipment, including, but not limited to, the location of Display and other MD Equipment and the type of mount to use for Display. No alterations to scheduled installation or MD Equipment can be made by the Participating Office without prior written permission from Mesmerize. Additional fees for changes to MD Equipment not specified in this agreement may apply and will be quoted to the Participating Office by Mesmerize for its approval.

6. Access; On-Premises Operation

6.1 The Participating Office will have the following obligations:

a) The Participating Office will provide Mesmerize and its authorized agents and representatives with access to the Participating Office’s premises for: installation, maintenance, repair and, if applicable, removal of MD Equipment. The Participating Office will provide access at a reasonable time agreed upon by the parties beforehand.

b) The Participating Office will be responsible for surface-cleaning of MD Equipment and maintaining a clear line of sight to the Display.

c) The Participating Office will not alter, modify or re-locate any component of MD Equipment without Mesmerize’s prior written consent.

d) The Participating Office will provide standard electrical outlets (power for such electrical outlets shall remain on at all times) for installation and operation of such MD Equipment.

e) The Participating Office will provide high-speed Internet connection with the speed and bandwidth required for the media player component of MD Equipment to efficiently link to the MD Network’s operations center. This Internet connection may be a shared connection so long as speed and bandwidth requirements are not significantly impaired.

f) The Participating Office will keep MD Equipment operating (which shall include Display and audio speakers to be powered on) at all times during business hours in accordance with such guidelines as Mesmerize may reasonably prescribe from time to time. The Participating Office will notify Mesmerize in writing at least three (3) days prior to changing its business hours.

g) The Participating Office will promptly notify Mesmerize of any changes that impact the network connection, including but not limited to firewall changes, Internet Service Providers, and security updates.

h) With respect to MD Equipment, the Participating Office will keep the Brochure Rack in plain sight near the Display and will stock brochures within three days of receipt of brochures.

i) The Participating Office authorizes Mesmerize to take photographs of the area where MD Equipment is installed at the premises of the Participating Office for documentation purposes.

j) The Participating Office will use reasonable best efforts to satisfy any other requests made by Mesmerize that is reasonably necessary for the installation and/or operation of MD Equipment.

7. Term; Termination; Program Modification: MD Equipment Ownership and Removal

7.1 Term. The initial term of this Agreement will commence on the Effective Date and will continue for three (3) years. Thereafter, this Agreement shall automatically renew for successive one-year terms, unless terminated by either party pursuant to Section 8.2

7.2 Termination by the Participating Office. Participating Office may terminate this Agreement without cause upon ninety (90) days’ prior written notice to Mesmerize after the initial 3 year term.

7.3 Termination and Modification by Mesmerize. Mesmerize may terminate this Agreement at any time to be effective immediately upon written notice of such termination to the Participating Office. In addition, Mesmerize may discontinue or modify any or all components of the Program.

7.4 MD Equipment Ownership and Removal.

a) At all times, Mesmerize shall be the sole owner of MD Equipment located within or installed at the premises of the Participating Office.

b) If Mesmerize terminates this Agreement or discontinues any component of the Program, Mesmerize may remove all MD Equipment at Mesmerize’s expense.

c) If the MD system at the Participating Office is not in operation for ninety (90) or more days, Mesmerize, at its sole discretion, shall have the right to remove MD Equipment.

8. MD Program Content; License; Ticker Program

8.1 Editorial Decisions. With respect to MD Program Content:

a) Selection.  As between the parties, the MD Program Content will be designed, managed and selected solely by Mesmerize in accordance with such guidelines as may be established from time to time by Mesmerize. Mesmerize will refrain from including in the MD Program Content any of the following: (i) political or religious content, (ii) sexual content, (iii) alcohol, tobacco or illegal drug related content, (iv) gambling or lottery content, and (v) other advertisements from advertisers that may be considered competitive with the Participating Office.

b) Community Standards.  If the Participating Office receives a specific and reasonable customer complaint that the substance or selection of any MD Program Content does not comport with local community standards, then the Participating Office may request that Mesmerize withdraw or facilitate the withdrawal of the relevant MD Program Content. Mesmerize will take any such request by the Participating Office under advisement and, so long as Mesmerize finds that the request is reasonable, will withdraw or facilitate the withdrawal of the MD Program Content at issue.

8.2 License.  Mesmerize grants the Participating Office a non-sublicensable, non-transferable right to distribute, broadcast or otherwise use MD Program Content in accordance with the following terms:

a) Restrictions.  The Participating Office will not use any of the MD Program Content of, and will not allow any other person or entity to use any of the MD Program Content, for any purpose other than as expressly set forth in this Agreement. Without limiting the foregoing, the Participating Office agrees that, without the prior written consent of Mesmerize, the MD Program Content will not be (i) copied, recorded, dubbed, or supplemented, or (ii) amplified, transmitted or retransmitted so as to be audible outside of the premises of the Participating Office. In addition, the Participating Office will not, and will not allow any other person or entity to, modify, prepare excerpts or derivative works of, sell, rent, lease, timeshare, or otherwise distribute, reproduce, transfer, or commercially exploit, any of the MD Program Content. The Participating Office will promptly report to Mesmerize any person or entity that uses any of the MD Program Content that violates this Agreement, and Mesmerize will have the right, but not the obligation, to pursue any or all such misuses.

b) Ownership.  Mesmerize and its licensors, suppliers and advertising partners own, and will own and retain, all right, title and interest, including, without limitation, all copyright, trademark, trade secret, patent and other intellectual property and proprietary rights, in and to the MD Program Content and all aspects thereof. Any and all rights in and to the MD Program Content or any portion thereof not expressly granted to the Participating Office herein are reserved for Mesmerize and its licensors, suppliers and advertising partners.

c) Third-Party Licenses and Consents.  As between the Participating Office and Mesmerize, Mesmerize will be responsible for obtaining any and all third-party rights, consents and licenses with respect to the MD Program Content.

Participating Office Content Program. The Participating Office may, in accordance with such guidelines as Mesmerize may establish from time to time, participate in the Participating Office Content Program offered by Mesmerize which would permit the Participating Office to incorporate messaging on the waiting room screen. Mesmerize guidelines preclude, among other things, the inclusion of (i) political or religious content, (ii) sexual content, (iii) alcohol, tobacco or illegal drug related content, and (iv) gambling or lottery content.  Mesmerize will provide access via an online web portal to the Participating Office to create sidebar, main window, and ticker advertisements, including the creative based on established templates that can be customized.

9. Representations and Warranties

9.1 Mesmerize represents and warrants that the execution, delivery and performance by Mesmerize of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite action on the part of Mesmerize.

9.2 The Participating Office represents and warrants that the execution, delivery and performance by the Participating Office of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all requisite action on the part of the Participating Office.

10. Indemnification

10.1 Mesmerize will defend, indemnify and hold harmless the Participating Office, its parent, subsidiaries, affiliates, directors, officers, employees, representatives, agents, shareholders, of and from all claims, demands, losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees, resulting from:

a) injury, illness and/or death or damage to real or tangible, personal property from the willful, fraudulent or negligent acts or omissions of Mesmerize, its employees, representatives or agents in installing or, if applicable, maintaining the MD Equipment; and

b) breach of any representation, warranty or obligation of Mesmerize set forth in this Agreement.

10.2 The Participating Office will defend, indemnify and hold Mesmerize, its parent, subsidiaries, affiliates, directors, officers, employees, representatives, agents and shareholders, of and from all claims, demands, losses, damages, liabilities, costs and expenses, including reasonable attorney’s fees, resulting from:

a) injury, illness and/or death or damage to real or tangible, personal property from the willful, fraudulent or negligent acts or omission of the Participating Office, its employees, representatives or agents in maintaining or operating the MD Equipment;

b) breach of any representation, warranty or obligation of the Participating Office set forth in this Agreement.

10.3 The indemnification obligations set forth in Section 11.1 and Section 11.2 will survive the termination of this Agreement and continue for as long as the statute of limitations applicable to any such claims, actions, demands or suits.

10.4 The respective rights and obligations of the party under Section 11.1 and 11.2 of this Agreement providing the indemnification (the “Indemnitor”) and the party receiving the indemnification (the “Indemnitee”) will be governed as follows. Indemnitee agrees to advise Indemnitor if Indemnitee receives notices that a claim has been or may be filed with respect to a matter covered by this indemnity and Indemnitor will be given the opportunity to assume the defense thereof; provided, however, that if Indemnitee determines in its sole and absolute discretion that it is in Indemnitee’s best interest to retain counsel of its own choosing to defend Indemnitee, then Indemnitor will acquiesce in such decision and will pay for all of Indemnitee’s defense costs including, without limitation, reasonable attorneys’ fees. In addition, if Indemnitor fails to assume such defense, Indemnitee and/or any of the Indemnitees may defend and settle the action in the manner deemed appropriate, and Indemnitor will pay to Indemnitee and/or the Indemnitees all costs, including reasonable attorneys’ fees, incurred by Indemnitee in effecting such defense, in addition to any sum which Indemnitee may pay by reason of any settlement or judgment against Indemnitee. This right to indemnity hereunder will exist notwithstanding that (a) joint or several liability may be imposed upon Indemnitee (or the other Indemnitees identified above) by statute, ordinance, regulation or judicial decision, and/or (b) that an allegation of negligence or misconduct is made with respect to Indemnitee in any such claim or suit.

11. Copyrights, Trademarks, Etc.

Without the prior written consent of Mesmerize, the Participating Office will not use “Mesmerize,” “Mesmerize Digital,” “MD” or any variations thereof, or any trademark or service mark of Mesmerize or MD in any manner whatsoever, unless, and then only to the extent, such use is authorized in writing by Mesmerize.

12. No Waiver

No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

13. Independent Contractor

Mesmerize acknowledges that it is an independent contractor and is not an agent, partner, joint venturer nor employee of the Participating Office. Mesmerize will have no authority to bind or otherwise obligate the Participating Office in any manner nor will Mesmerize represent to anyone that it has a right to do so. The Participating Office acknowledges that it is an independent entity and is not an agent, partner, joint venturer nor partner of Mesmerize. The Participating Office will have no authority to bind or otherwise obligate Mesmerize in any manner nor will the Participating Office represent to anyone that it has a right to do so.

14. Notices

All notices required or permitted under this Agreement will be in writing and will be deemed effective upon personal delivery or upon deposit in the United States Post Office, by registered or certified mail, postage prepaid, addressed to the other party at the address shown above, or at such other address or addresses as either party will designate to the other in accordance with this Section.

Notices to Mesmerize will be sent to:

Mesmerize Media LLC
505 8th Ave., Suite 1003
New York, NY 10018
Attention: Mesmerize Digital

Notices to the Participating Office will be sent to the address of the Participating Office listed on page 1 of this Agreement.

15. Governing Law and Forum

This Agreement will be governed by and construed in accordance with the laws of the State of New York, without reference to conflicts of law principles.  Venue for any dispute arising between the parties shall be in state or federal court, as appropriate, located in New York, New York County, New York.

16. Amendments

This Agreement may not be waived, modified or amended except by an instrument in writing executed by authorized representatives of both Mesmerize and the Participating Office.

17. Severability

If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the court may modify this Agreement to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

18. Interpretation

Captions are used only for convenience and are in no way to be construed as a part of this Agreement or as a limitation of the scope of the particular sections to which they refer. Words of any gender used in this Agreement will include any other gender, and words in the singular will include the plural where the context requires.

19. Force Majeure

Neither Mesmerize nor its affiliates will be liable for failure of performance hereunder if occasioned by fire, flood, accident, explosion, war, prohibition of import or export of goods, governmental order, regulation, restriction or any other cause beyond their control.

Mesmerize will not be liable or responsible to the Participating Office, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Mesmerize affected including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

20. Binding Effect/Assignment

This Agreement will be binding upon the parties, their successors, heirs and assigns, provided that it will not be assigned or transferred in whole or in part by either party without the express written consent of the other. Notwithstanding the foregoing, this Agreement may be assigned to (a) any party controlled by, controlling or under common control with the assigning party, or (b) any party acquiring all or substantially all of the assigning parties stock, equity or assets. For any assignment requiring consent hereunder, such consent will not be unreasonably withheld or delayed. In all cases of assignment, the assignee will be bound by the terms hereof and will deliver written affirmation thereof to the non-assigning party as a condition of such assignment.

21. Integration Clause

This Agreement constitutes the entire agreement between Mesmerize and the Participating Office and supersedes any and all prior negotiations, understandings, and/or agreements, oral or written, between the parties hereto with respect to the subject matter hereof.

Headquarters

  • Mesmerize
  • 505 8th Ave., Suite 1003
  • New York, NY 10018

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