Exhibit 10. (xvi) OEM Purchase and Development Agreement With Bose Corporation,
dated March 1997
OEM PURCHASE AND DEVELOPMENT AGREEMENT
BETWEEN
TOUCHTUNES JUKEBOX, INC.
AND
TECHNICAL MAINTENANCE CORPORATION
AND
BOSE CORPORATION
MARCH 1997
TABLE OF CONTENTS
1. INTRODUCTION 1
2. DEVELOPMENT OF THE SYSTEM 1
2.1 The System 1
2.2 System Specifications and Development 1
2.3 Good Faith Cooperation 2
3. TERMS OF PURCHASE AND SALE OF SYSTEMS 2
3.1 Purchase and Sale 2
3.2 Pricing 2
3.3. Purchase Orders 3
Submission of Purchase Order 3
Confirmation of Purchase Order 3
Termination of Purchase Orders 3
3.4 Production Forecasts 3
3.5 Shipment; Title and Risk of Loss 3
4. WARRANTY AND SUPPORT 4
4.1. Warranty 4
General 4
Procedures 4
Limitations 4
4.2 Support and Maintenance 5
5. INTELLECTUAL PROPERTY RIGHTS 5
5.1 Ownership of Patents 5
Patent Rights Unilaterally Originated 5
Ownership of Patent Rights Jointly
Originated 5
Other Rights 5
5.2 Trademarks 5
Trademark License 5
Marketing and Advertising 6
Quality Assurance 6
Trademark Notice 6
Reservation of Rights 6
ii
6. INTELLECTUAL PROPERTY INDEMNIFICATION 7
6.1 By Bose 7
Indemnity 7
Limitations 7
6.2 By TouchTunes 7
7. TECHNICAL AND COMMERCIAL INFORMATION 8
8. TERM OF AGREEMENT; TERMINATION 8
8.1 Term of Agreement 8
8.2 Termination for Cause 8
8.3 Posttermination Rights and Obligations 8
9. MISCELLANEOUS 9
9.1 No Agency 9
9.2 Authorization 9
9.3 Excusable Delays 9
9.4 Assignment 9
9.5 Notices 10
9.6 Governing Law 10
9.7 Official Currency 10
9.8 Waiver 10
9.9 Integration and Interpretation 10
9.10 Amendments 10
9.11 Expenses 11
9.12 Captions 11
9.13 Counterparts 11
9.14 Exclusivity 11
Schedule A: Product Description
Schedule B: Production Systems Pricing
Schedule C: Prototype Part List
iii
OEM PURCHASE AND DEVELOPMENT AGREEMENT
between
TOUCHTUNES, INC.
and
TECHNICAL MAINTENANCE CORPORATION
and
BOSE CORPORATION
This Agreement is made as of March 4, 1997, between TouchTunes Jukebox, Inc.,
and Technical Maintenance Corporation ("TouchTunes"), and Bose Corporation, a
Delaware Corporation ("Bose"), who hereby agree as follows:
1. INTRODUCTION
Bose designs, develops, manufactures, and sells audio equipment, including
speakers, amplifiers, transducers, and other electronic devices and
circuitry
TouchTunes designs, develops, and sells jukebox equipment, including a
device known as the Digital Jukebox.
TouchTunes desires to utilize premium performance jukeboxes developed
jointly by TouchTunes and Bose. Bose desires to work with TouchTunes to
develop customized jukeboxes designed to meet the specifications and
requirements of TouchTunes, and to become a supplier of such jukeboxes to
TouchTunes.
2. DEVELOPMENT OF THE SYSTEM
2.1. The System. For purposes of this Agreement, the "system" shall mean a
"Jukebox" developed jointly by Bose and TouchTunes.
2.2. System Specifications and Development. TouchTunes and Bose shall work
together to develop a detailed set of specifications for the Jukebox.
TouchTunes shall provide to Bose detailed information relating to
electronic content, interior and exterior dimensions, construction
materials, and other data which is relevant to the design and
performance of the Jukebox. Bose shall provide to TouchTunes such
information regarding the physical and electronic characteristics of
the Jukebox as may be required in connection with the design and
construction of the Jukebox. Upon agreement between TouchTunes and
Bose as to the detailed specifications for the Jukebox, Bose shall
commence efforts to develop the Jukebox for TouchTunes. Each party
shall provide, at its own expense, such personnel, facilities, and
other resources as Each party deems necessary and appropriate for the
performance of its obligations under this Section 2. Employees of
each party shall be available for consultation with the other party
during The course of this development.
TouchTunes shall make available to Bose models and prototypes of each
TouchTunes component as specified in TouchTunes parts list (Schedule
C) for purposes of inspection, measurement, and testing by Bose.
If either party wishes to amend or modify the agreed-upon
specifications relating to the Jukebox, such party shall specify the
desired change in writing to the other party. Each party agrees not
to unreasonably withhold its approval of any suggested change. Bose
and TouchTunes shall each have the right to approve the acoustical
performance of the Jukebox, prior to the initiation by Bose of
manufacturing of the Jukebox.
2.3. Good Faith Cooperation. Bose and TouchTunes acknowledge that this
Agreement cannot possibly cover or contemplate all aspects of the
working relationship between Bose and TouchTunes that will develop or
be required in connection with the design and development of the
Jukebox. Accordingly, Bose and TouchTunes each agree to act in good
faith and in a commercially reasonable manner in performing their
respective obligations under this Section 2.
3. TERMS OF PURCHASE AND SALE OF SYSTEMS
3.1. Purchase and Sale. TouchTunes agrees to purchase from Bose, and Bose
agrees to sell to TouchTunes, complete Jukeboxes in such quantities
as are agreed between the parties from time to time. Bose and
TouchTunes agree that for the initial order of 20 prototype units
that TouchTunes shall pay Bose ninety thousand dollars ($90,000) in
U.S. currency in the event TouchTunes does not issue a purchase order
for approximately six thousand (6000) additional jukeboxes by May 31,
1997, for delivery in 1998. TouchTunes will provide Bose with a
letter of credit (or acceptable substitute) for $90,000 conditional
on receipt of the P.O. prior to shipment of the prototypes. In the
event that TouchTunes does not issue a purchase order as described
herein by May 31, 1997, Bose shall be relieved of its obligations
under this Agreement. TouchTunes agrees to pay Bose the entire sum
of ninety thousand dollars ($90,000) without deduction or set-off in
such even of nonperformance by TouchTunes. TouchTunes shall be under
no further obligation to issue a purchase order once the payment of
ninety thousand dollars ($90,000) is made.
3.2. Pricing. The price of each Jukebox purchased by TouchTunes from Bose
shall be as set forth on the Price Schedule attached to this
Agreement as Schedule B. In the event of any change in the Jukebox
design or specifications from that contemplated as of the date of the
Agreement, Bose shall be entitled, with the written consent of
TouchTunes (which consent may not be unreasonably withheld or
delayed), to modify the pricing terms set forth on Schedule B to take
into account such changes. All pricing terms on such Price Schedule
(i) include shipping costs to the destination within the United
States specified by TouchTunes in its purchase order but (ii) exclude
all excise, sales, use, and other taxes, all of which shall be paid
by TouchTunes. TouchTunes is responsible for obtaining and providing
to Bose any certificate of exemption or similar document required to
exempt any sale from sales, use or similar tax liability. Payment
for Jukeboxes shall be determined by mutual agreement of the parties.
3.3. Purchase Orders
Submission of Purchase Order. TouchTunes shall submit to Bose
purchase orders for all Jukeboxes to be purchased by TouchTunes
from Bose. Each purchase order shall specify a requested
delivery date, which shall be at least 90 days following the
date of delivery of the purchase order.
Confirmation of Purchase Order. Within ten days after the
receipt by Bose of all documents comprising each purchase order,
Bose shall provide TouchTunes with a written confirmation notice
relating to the purchase order.
Termination of Purchase Orders. TouchTunes shall have the right
to cancel any purchase order in whole or in part at any time,
subject to the following provisions. Such cancellation shall
become effective upon written notification by TouchTunes to
Bose. TouchTunes agrees to pay Bose all costs which were
incurred by Bose Corporation in performance of the purchase
order up to the date of cancellation and which are property
allocable to such order under recognized commercial accounting
practices.
3.4 Production Forecasts. TouchTunes shall make available to Bose, upon
request, for planning purposes only, an estimate of TouchTunes'
delivery requirements from Bose for the Jukebox for the next 12
months.
3.5 Shipment; Title and Risk of Loss. All packaging and methods and
routes of shipment will be selected by Bose. Bose reserves the right
to ship the products in any order and to make partial shipments.
Bose shall arrange for shipment to TouchTunes, of Jukeboxes in
accordance with the shipment schedule specified by TouchTunes
Delivery of Jukeboxes by Bose to TouchTunes shall be f.o.b. the
United States destination specified in the purchase order. Without
regard to freight being prepaid or collect, title, and risk of loss
shall pass to TouchTunes upon delivery to the carrier. Bose reserves
and TouchTunes grants to Bose a security interest in all Jukeboxes
and all proceeds thereof to secure the full payment and performance
by TouchTunes of its liabilities and obligations to Bose under this
Agreement. TouchTunes acknowledges that this document or copies of
this document may be filed with the appropriate authorities as a
financing statement and agrees to execute and deliver such documents
as Bose may request in order to perfect Bose Corporation's security
interest granted hereby.
4 WARRANTY AND SUPPORT
4.1 Warranty
General. Bose warrants solely to TouchTunes that the Bose content of the
Jukeboxes sold and delivered under this Agreement shall be free from
defects in materials and workmanship under normal and intended usage, for
a period of 12 months from the date of purchase. Bose agrees, during the
applicable warranty period, to repair or replace (at Bose Corporation's
option) all defective Jukeboxes. This warranty does not cover defects or
damages due to water, chemical or sealant intrusion, or defects or damages
resulting from negligence, casualty, accident, fire, disaster, misuse, or
improper installation, nor does it apply to Jukeboxes that have been
modified or repaired by a party other than Bose or a party authorized by
Bose to do so. TouchTunes shall pass through or cause to pass through to
Bose all warranties for equipment supplied by TouchTunes.
Procedures. TouchTunes shall notify Bose of any Jukeboxes which it
believes to be defective during the applicable warranty period. Defective
Jukeboxes shall be returned by TouchTunes to the facility designated by
Bose, whereupon Bose shall examine and test such Jukeboxes, repair or
replace any such Jukeboxes found to be defective, and promptly return such
Jukeboxes to TouchTunes. All replaced parts shall become the property of
Bose. Bose shall make available as required spare parts to TouchTunes.
Bose shall designate the method of shipment required for return of
jukeboxes, and shall reimburse TouchTunes for all cost of shipment except
for such jukeboxes which upon testing by Bose prove not to be defective.
Limitations.
(a) The provisions of the foregoing warranties are in lieu of any
other warranty, whether express or implied, written or oral
(including any warranty of merchantability or fitness for a
particular purpose). The foregoing warranties extend to
TouchTunes only and shall not be applicable to any other person
or entity, including without limitation customers of TouchTunes
(b) Bose Corporation's liability arising out of the design,
manufacture, sale, or delivery of the Jukeboxes or their use or
disposition, whether based upon warranty, contract, tort, or
otherwise, shall not exceed the actual purchase price paid by
TouchTunes to Bose for such jukebox. In no event shall Bose be
liable to TouchTunes or any other person or entity for special,
incidental, or consequential damages (including without
limitation loss of profits, loss of data, or loss of use
damages) arising out of the design, manufacture, sale, or
delivery of the Jukeboxes.
4.2 Support and Maintenance. TouchTunes shall be solely responsible for
providing maintenance and support to users of the Jukeboxes, including
maintenance and support relating to the Jukeboxes included therein. Bose
shall provide technical support to maintenance and support personnel of
the Jukeboxes. Any bugs and defects identified by TouchTunes after the
commencement of commercial shipments of the Jukeboxes and the expiration
of the Bose warranty shall be resolved by Bose at TouchTunes' expense,
within two weeks, to the extent possible using commercially reasonable
efforts. Bose will support TouchTunes with technical seminars for
TouchTunes maintenance personnel or by other methods as determined by
Bose.
5 INTELLECTUAL PROPERTY RIGHTS
5.1 Ownership of Patents
Patent Rights Unilaterally Originated. Patent rights relating to
inventions originated solely by an employee or employees of one party
in connection with the design and development of the Jukebox shall
vest in such party.
Ownership of Patent Rights Jointly Originated. Patent rights
relating to inventions originated jointly by employees of Bose and
TouchTunes in connection with the design and development of the
Jukebox shall vest in Bose and TouchTunes. jointly, each party to
have an equal and undivided interest in such patent rights.
Other Rights. Except as provided above in this Section 5.1,
TouchTunes Inc. and Bose shall each retain ownership of all
intellectual property rights relating to the Jukebox that are already
owned by the respective parties.
5.2 Trademarks
Trademark License. Bose is the owner of the trademark "Bose" (both
in logo form and nonlogo form), which is registered with the United
States Patent and Trademark Off ice and similar offices or agencies
in various foreign countries (the "Trademark"). Bose hereby grants a
limited, nonassignable, nonexclusive license to TouchTunes to use the
Trademark either alone or in conjunction with other names, phrases,
or logos approved in writing by Bose, solely on and in connection
with the Jukebox manufactured by, for or on behalf of TouchTunes.
TouchTunes agrees to prominently display the Trademark on each
Jukebox and in all marketing literature relating to the Jukebox.
This limited license shall terminate on the date of termination of
this Agreement, except with respect to TouchTunes Products
incorporating Jukeboxes that were purchased by TouchTunes from Bose
prior to the date of termination.
Marketing and Advertising. Bose and TouchTunes shall agree upon
guidelines for usage of the Trademark by TouchTunes in connection
with the marketing or advertising of the Jukebox, and TouchTunes
shall comply with such guidelines. TouchTunes Inc. agrees that all
national media advertising and all other advertising copy of first
impression, which contains any usage of the Trademark shall be
subject to Bose approval of such usage, both as to style and context,
prior to release, which approval shall not be unreasonably withheld
or delayed. TouchTunes shall provide Bose a complete list of
contacts and test sites for the Jukebox. TouchTunes and Bose agree to
share marketing information for purposes of obtaining knowledge of
customers and performance of the system for future product
enhancements.
Quality Assurance. TouchTunes shall use its best efforts to provide
Bose with accurate and timely field failure information. In
addition, Bose, as licenser of the Trademark, shall have the right to
inspect the processing, packaging, and installation of all Jukeboxes
in connection with which the Trademark is used, for the limited
purpose of protecting and maintaining the standards of quality
established by Bose for products sold under the Trademark.
TouchTunes shall Permit Bose Corporation's authorized personnel to
enter TouchTunes' premises at all reasonable times, with reasonable
advance notice, to inspect TouchTunes' processing, packaging, and
installation operations relating to Jukeboxes in connection with
which the Trademark is used and to inspect and test Jukeboxes to be
sold under or in connection with the Trademark. If Bose at any time
finds that any Jukeboxes in connection with which the Trademark is
used is not being processed, packaged, or installed in accordance
with this Agreement, Bose may notify TouchTunes in writing of all
deficiencies, and if TouchTunes fails to take prompt action to
correct all such deficiencies Bose may, at its election, terminate
the license granted pursuant to Section 5.2 effective 30 days after
serving written notice of such termination unless such deficiencies
are corrected within such time. TouchTunes will "do its best effort"
to ensure that connections to house systems will be at a sufficiently
acceptable sound quality to be determined by TouchTunes and Bose.
TouchTunes will notify Bose of house systems connected to Jukeboxes
and the brand of product connected. Bose reserves the right to
review such installations.
Trademark Notice. TouchTunes shall cause to appear on products and
advertising materials using the Trademark, reasonable legends,
markings, and notices indicating ownership by Bose of the Trademark,
acceptable in substance and form to both parties.
Reservation of Rights. Bose expressly reserves, and TouchTunes
expressly acknowledges, that Bose possesses the exclusive ownership
of the Trademark and all related statutory and common law rights and
privileges. Use of the Trademark by TouchTunes shall inure to the
benefit of Bose.
6 INTELLECTUAL PROPERTY INDEMNITY
6.1 By Bose
Indemnity. Except as provided below, Bose shall defend and indemnify
TouchTunes from and against any damages, liabilities, costs, and
expenses (including reasonable attorneys' fees and court costs)
arising out of any claim that the Jukebox purchased and/or licensed
hereunder infringes a valid United States or Canadian patent or
copyright or infringes a trade secret of a third party, provided that
(i) TouchTunes shall have promptly provided Bose written notice
thereof and reasonable cooperation, information, and assistance in
connection therewith, and (ii) Bose shall have sole control and
authority with respect to the defense, settlement, or compromise
thereof. Should any Jukebox delivered hereunder become or, in Bose
Corporation's opinion, be likely to become the subject of such a
claim, Bose may, at its option, either pro-cure for TouchTunes the
right to continue purchasing and using such Jukebox, or replace or
modify such Jukebox so that it becomes noninfringing. In such event,
Bose may withhold further shipments of infringing or potentially
infringing Jukeboxes.
Limitations. Bose shall have no liability or obligation to
TouchTunes hereunder with respect to any patent, copyright, or trade
secret infringement or claim thereof based upon (i) compliance with
designs, plans, or specifications of TouchTunes, (ii) use of the
Jukebox by TouchTunes in combination with devices or products where
the Jukebox would not itself be infringing, (iii) use of the Jukebox
by TouchTunes in an application or environment for which it was not
designed or contemplated, (iv) modifications of the Jukebox by
TouchTunes, or (v) any claims infringement of a patent, copyright, or
trade secret in which TouchTunes or any affiliate or customer of
TouchTunes has an interest or license. Bose Corporation's liability
hereunder shall not exceed the purchase price paid by TouchTunes for
the Jukeboxes found to be infringing. The foregoing states the
entire liability of Bose with respect to infringement of patents,
copyrights, and trade secrets by the Jukebox or any part thereof or
by their operation.
6.2 By TouchTunes. Except as provided below, TouchTunes shall defend and
indemnify Bose from and against any damages, liabilities, costs, and
expenses (including reasonable attorneys' fees and court costs)
incurred by Bose as a result of or arising from TouchTunes activities
under the Agreement, including, without limitation, product
liability, customer warranty, and service claims, provided that (i)
Bose shall have promptly provided TouchTunes written notice thereof
and reasonable cooperation, information, and assistance in connection
therewith, and (ii) TouchTunes shall have sole control and authority
with respect to the defense, settlement, or compromise thereof.
7. TECHNICAL AND COMMERCIAL INFORMATION
No proprietary information disclosed by either party to the other in
connection with this Agreement shall be disclosed to any person or entity
other than the recipient party's employees and contractors directly
involved with the recipient party's use of such information who are bound
by written agreement to protect the confidentiality of such information,
and such information shall otherwise be protected by the recipient party
from disclosure to others with the same degree of care accorded to its own
proprietary information. Information will not be subject to this
provision if it is or becomes a matter of public knowledge without the
fault of the recipient party, if it was a matter of written record in the
recipient party's files prior to disclosure to it by the other party, or
if it was or is received by the recipient party from a third person under
circumstances permitting its unrestricted disclosure by the recipient
party. Upon termination of this Agreement, each party shall promptly
deliver to the other all proprietary information of the other party in the
possession or control of such party and all copies thereof.
8. TERM OF AGREEMENT, TERMINATION
8.1 Term of Agreement. This Agreement shall continue in effect until
March 1 1998, and shall be automatically extended for successive one-
year periods unless either party, on or before the date six months
prior to the commencement of any renewal period, provides written
notice to the other party of its election not to extend the Agreement
for an additional renewal period.
8.2 Termination for Cause. Notwithstanding the provisions of Section 9.1,
if either party shall default in the performance of its obligations
under this Agreement the other party may serve written notice to the
defaulting party specifying the claimed default. The defaulting
party shall use its best efforts to correct any such default
promptly. If the claimed default is not corrected within such
reasonable time as is agreed by the parties, within 30 days in the
absence of such agreement, the nondefaulting party shall have the
right to terminate this Agreement by delivering written notice of
termination to the defaulting party within 15 days following the
expiration of such cure period.
8.3 Posttermination Rights and Obligations. The following rights and
obligations shall survive the expiration or termination of this
Agreement to the extent necessary to permit their complete
fulfillment or discharge:
(a) the right of Bose to receive payment for and the obligation
of TouchTunes to pay Bose for any Jukeboxes shipped by Bose
prior to the time of termination;
(b) licenses in favor of customers of TouchTunes in respect of
products sold by TouchTunes prior to the termination of
this Agreement, and licenses in favor of TouchTunes in
respect of Jukeboxes that were purchased by TouchTunes from
Bose prior to the termination of this Agreement;
(c) the right to TouchTunes to perform maintenance and service
on TouchTunes Products sold prior to the termination of
this Agreement;
(d) the obligations regarding confidentiality under Section 8;
and
(e) any cause of action or claim of either party because of any
breach or default by the other party prior to the
termination of this Agreement.
9 MISCELLANEOUS
9.1 No Agency. This Agreement does not constitute Bose the agent or
representative of TouchTunes or of any subsidiary or affiliate of
TouchTunes, and does not constitute TouchTunes the agent or legal
representative of Bose. Neither party is granted any express or
implied right or authority to assume or to create any obligation,
agreement, or undertaking on behalf of or in the name of the other or
to bind the other in any manner or thing whatsoever.
9.2 Authorization. Each party represents to the other that this Agreement
has been duly authorized, executed, and delivered by it and that the
execution, delivery, and performance of this Agreement will not
violate the provisions of any law, regulation, contract, or court
order to which the party making this representation is subject or by
which it is bound.
9.3 Excusable Delays. Neither Bose nor TouchTunes shall be liable for any
loss or damage (including without imitation any special, incidental,
or consequential damage) resulting from any delay in the performance
of any obligation hereunder which is due to any cause beyond its
control, including without limitations acts of nature, unavailability
of sources of energy, riots, wars, floods, epidemics, strikes, or
slowdowns or acts or omission of the other party ("Unavoidable
Causes"). If at any time any party shall have reason to believe that
the performance of any of its obligations will not occur when
scheduled due to any Unavoidable Cause, such party shall provide
written notice to the other party indicating the cause of the delay.
9.4 Assignment. Except as may be otherwise specifically permitted in this
Agreement, neither party may assign any of its rights or delegate any
of its duties under this Agreement without the prior written consent
of the other party (which shall not be unreasonably withheld or
delayed). Any attempt at assignment in violation of this Section 9.4
shall be void. Notwithstanding the foregoing, (a) either party may
cause any of its obligations under this Agreement to be performed by
one or more of its subsidiaries (provided that such party shall
remain responsible for the full performance of all obligations of
such party under this Agreement) and (b) either party may assign this
Agreement in connection with a merger, consolidation, or sale of all
or substantially all of its assets.
9.5 Notices. All notices, requests, consents, and other communications in
connection with this Agreement shall be furnished in writing and
shall be sufficiently given if personally delivered or sent by
telecopy (effective as of the date of delivery) or sent by postage-
prepaid registered or certified mail (effective two days after being
so mailed) to the other party at the address specified below or such
other address as such party shall have specified in writing:
If to TouchTunes:
TouchTunes Jukebox Inc.
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
If to Bose:
Bose Corporation
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Legal Department
9.6 Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the Commonwealth of Massachusetts.
9.7 Official Currency. Both parties agree that the currency to be used
for all calculations and payments shall be U.S. dollars.
9.8 Waiver. The waiver by either party of a breach or a default of any
provision of this Agreement shall not be construed as a waiver of any
succeeding breach of the same or any other provision, nor shall any
delay or omission of the part of either party to exercise or avail
itself of any right, power, or privilege that it has or may have
under the terms of this Agreement operate as a waiver of any right,
power, or privilege.
9.9 Integration and interpretation. This Agreement contains the full
understanding of Bose and TouchTunes with respect to the development,
purchase, and sale of Jukeboxes and supersedes all prior agreements,
covenants, arrangements, communications, representations,
understandings, or warranties, whether oral or written by or between
the parties relating to the subject matter hereof. In the event of
any inconsistency between the terms of this Agreement and any
purchase order, invoice, or any other written instrument given
hereunder, the terms of this Agreement shall control.
9.10 Amendments. No waiver, alteration, modification, or amendment of any
provisions of this Agreement or any Purchase Order hereunder shall be
binding unless made in writing and signed by authorized
representatives of both TouchTunes and Bose.
9.11 Expenses. Except as otherwise provided in this Agreement, each party
shall be responsible for its own costs and expenses in performing its
obligations under this Agreement.
9.12 Captions. Captions or section headings contained in this Agreement
are for convenience of reference only, and in no way define or limit
the scope of the provisions contained herein.
9.13 Counterparts. This Agreement may be executed in two Counterparts,
both of which together shall constitute one agreement binding on all
parties.
9.14 Exclusivity. Bose and TouchTunes agree that, for the term of this
Agreement, neither party shall contract with a third party to
manufacture or purchase jukeboxes which contain a similar system to
the system contemplated under this Agreement. Bose agrees that it
shall use its best efforts to prevent the use of the Bose trademark
on any other jukebox product. Both parties acknowledge and agree
that Bose products are available on the open market and may be
incorporated into jukeboxes without the knowledge or consent of Bose.
EXECUTED as a sealed instrument as of the date first indicated above.
TECHNICAL MAINTENANCE CORP. TOUCHTUNES, INC.
Signature: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Signature: /s/▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
-------------------- --------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------- -------------------------
Title: CEO-President Title: President
------------------------- -------------------------
BOSE CORPORATION
Signature: /s/(Illegible)
--------------------
Name: (Illegible)
-------------------------
Title: General Manager
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SCHEDULE A - PRODUCT DESCRIPTION
TOUCHTUNES DIGITAL JUKEBOX - A coin-operated jukebox that a customer interacts
with using a user-friendly touch screen interface. Jukebox operators will be
able to "order" on a 24-hour basis, any individual music title including the
newest releases from a remote central library. The selection will be
immediately "delivered" via TouchTunes proprietary telecommunications
downloading network and stored within the memory of the jukebox on location.
At a 11:1 compression ratio, 500 songs are planned to be stored on a ▇ ▇▇ ▇▇.
Future plans call for a 22:1, or ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. Quality sound will be
delivered via a Bose-powered speaker system, integrated into the actual jukebox
design. The jukebox will incorporate a TouchTunes, Sound by Bose logo.
SCHEDULE B - PRODUCTION SYSTEMS PRICING
To be determined
SCHEDULE C - PROTOTYPE PART LIST
Prototype Production
TouchTunes and Bose agree to procure prototypes parts as defined on Schedule C
as follows and deliver them to a specified Bose location in accordance with the
prototype schedule.