PRICE 4 LIMO AFFILIATE AGREEMENT
1.1. PREAMBLE. We have expended considerable time and effort in developing a business that provides affordable limousine service and other transportation services to the general public. This business operates under the name Price 4 Limo and under distinctive business formats, methods, procedures, designs, layouts, standards and specifications, all of which we may improve, further develop or otherwise modify from time to time. We may use, promote and license certain trademarks, service marks and other commercial symbols in the operation of the limousine referral business and other transportation services, including the Price 4 Limo trademarks and service marks and associated logo (collectively, the “Marks”). We grant affiliate relationships to persons who are willing to undertake the investment and effort required to own and operate a limousine service business and other transportation services. You have indicated to us by your actions and statements that you are desirous of entering into an affiliate arrangement with us whereby prospective internet customers of limousine services would be referred to you through our website.
1.2 ACKNOWLEDGMENTS. You acknowledge that you have read this Agreement and understand and accept the terms, conditions and covenants contained in this Agreement. You acknowledge that you have conducted an independent investigation of the arrangement contemplated by this Agreement and recognize that, like any other business, the nature of the business may evolve and change over time, that an investment in a limousine business and other transportation services involves business risks. Any information you acquire from other affiliates relating to their sales, profits or cash flows does not constitute information obtained from us, nor do we make any representations as to the accuracy of any such information. All business dealings between you and our officers, directors and employees as a result of this Agreement are solely between you and us. You further acknowledge that we have advised you to seek counsel to review and evaluate this Agreement.
1.3 REPRESENTATION. You represent to us, as an inducement to your entry into this Agreement, that all statements you have made and all materials you have submitted to us are accurate and complete and that you have made no misrepresentations or material omissions in obtaining the affiliation with us. We have approved of this affiliation in reliance upon all of your representations.
1.4 CORPORATE OR PARTNERSHIP. If you are at any time a corporation or partnership, you agree and represent that:
1.4.1. You will have the authority to execute, deliver and perform your obligations under this Agreement and are duly organized or formed and validly existing in good standing under the laws of the state of your incorporation or formation. You will notify us within five (5) days whenever there is a change in your corporate status or whenever you receive service of process for any reason;
1.4.2. Appendix "A" to this Agreement will completely and accurately describe all of your owners and their interests in you; and
1.4.3. Each of your owners will be bound jointly and severally by all provisions of this Agreement and any ancillary agreements between you and us that bind you. You and your owners agree to execute and deliver to us such revised copies of Appendix "A" as may be necessary to reflect any changes in the information contained therein and to furnish such other information about your organization or information as we may request within five (5) days of change.
1.5. GRANT OF AFFILIATION. You desire to be affiliated with us for the purpose of receiving referrals of limousine business and other transportation services. Subject to the terms of and upon the conditions contained in this Agreement, we hereby grant you an affiliation (the “Affiliation”) for a term commencing on the date of this Agreement and expiring on the tenth (10th) anniversary, unless sooner terminated in accordance with Article 14 hereof.
1.6. YOUR PERFORMANCE. You agree that you will at all times faithfully, honestly and diligently perform your obligations hereunder.
1.7. RIGHTS WE RESERVE. We (and our affiliates) retain the right in our sole discretion to:
1.7.1. Open and establish, and grant to other affiliations to third parties, on such terms and conditions, as we deem appropriate.
1.8. NO GUARANTY. By no means does this Agreement constitute a guaranty, representation, warranty or statement that we will be able to refer any number of prospective limousine customers or other transportation service business of any level whatsoever to you. By no means does this Agreement constitute a guaranty, representation, warranty or statement that we will exclusively refer to you any and all limousine referral business or other transportation service business we acquire for services to be rendered in your state, county, municipality, or region and that we may have multiple affiliates in and around your area who may receive all or a portion of the limousine referral business or other and other transportation services as we decide in our sole and absolute discretion. By no means does this Agreement constitute a guaranty, representation, warranty or make a statement as to the quality of any such limousine referral business or other transportation service business provided to you, including without limitation the credibility, character, or nature of such customers and/or whether such customers are suitable to receive limousine or other transportion business services. You acknowledge that no background or credit checks are ever being performed by us on any prospective or actual referred customer provided to you.
2. BUSINESS DEVELOPMENT
2.1 BUSINESS DEVELOPMENT. You are responsible for operating your own independent business. You acknowledge and agree that any recommendations and any information regarding the operation of your business communicated to you, do not constitute a representation or warranty of any kind, express or implied, as to the suitability of the business or for any other purpose. You expressly represent and warrant to us that the business will be built and operated in compliance with all local, state and federal laws, ordinances, rules and regulations.
2.2. YOUR OBLIGATIONS. You agree, at your own expense, to do the following with respect to operating your business:
2.2.1 Research the requirements for and obtain all permits and licenses required to operate the business;
2.2.2 Conduct background checks on all drivers of your vehicles to ensure such drivers continuously maintain a safe driving record and you will provide a safe, professional and secure environment for all customers;
2.2.3. Purchase or lease all vehicles and other equipment required for the business;
2.2.4 Purchase an initial inventory of authorized and approved ancillary goods, materials and supplies; and
2.2.5 Provide the business referred by us to you in a timely, professional, courteous, safe manner to the respective customer(s) and never re-assigning or referring the business referred to you by us to a third party or another company.
2.2.6 Provide vehicles which will adequately and safely seat at least the number of passengers identified for the particular contracted limousine service job referred to You by Us.
2.3 BUSINESS COMMENCEMENT. You agree not to commence operation of the business until:
2.3.1. We have been furnished with copies of all insurance polices required by this Agreement, or such other evidence of insurance coverage as required by this Agreement and completed all such obligations enumerated in section 2.2.
3.1 AMOUNTS PAID BY CUSTOMERS. Amounts paid by customers as a deposit for such limousine or other transportation services through our website shall serve as our referral fee and compensation which shall be our property not subject to division, distribution or sharing between us and you regardless whether the limousine or other such transportation services are rendered by you or not. The amounts charged as a deposit to such customers is to be made exclusively by us and you shall have no input, say, or right to alter or modify such deposit amount or the terms associated with such deposit(s).
3.2. GRATUITIES TO DRIVERS OR OTHER EMPLOYEES/CONTRACTORS OF YOURS. You are solely responsible for any payments to drivers, employees, or other persons providing the contracted services to the customer, including without limitation, any gratuities, tips, or other compensation payable to such persons and that the pricing for such limousine or other transportion services as disclosed to You, quoted to You by Us, and/or agreed upon by You is fully inclusive of all such gratuities, tips, or other compensation payable to such persons and no customer, driver, employee, or other such person shall be instructed otherwise by You or any party affiliated with You.
3.3. INTEREST ON LATE PAYMENTS. Interest at the highest rate allowed under applicable law will be due on late payments in excess of thirty (30) days past due by either party, calculated from the date due until the date paid.
3.4. APPLICATION OF PAYMENTS. Notwithstanding any designation you might make, we have sole discretion to apply any amounts collected from you to any of your past due indebtedness to us. You acknowledge and agree that we have the right to set off any amounts you or your owners owe us against any amounts we might owe you or your owners.
3.5. STATE TAX PAYMENTS. You acknowledge and agree that in the event any state authority in the primary state in which you operate the business taxes us any amounts as a result of any monies we collect on your behalf under any of the terms of this Agreement, it is your responsibility to pay such state tax payment amounts and you hereby authorize us to collect such state tax payment amounts directly from you to reimburse us for our payments to such authorities.
4.1. YOUR CORPORATE NAME. You are to conduct the business under your name only and never under Price 4 Limo, Price for Limo, or any derivative thereof.
4.2. PROHIBITION ON USE OF MARKS. You may not use any Marks as part of any corporate or legal business name or as part of an Internet domain name or Internet e-mail address or with any prefix, suffix or other modifying words, terms, designs or symbols (other than logos licensed to you hereunder), or in any modified form, nor may you use any Marks in connection with the performance or sale of any unauthorized services or products or in any other manner we have not expressly authorized in writing. No Marks may be used in any advertising concerning the transfer, sale or other disposition of the business or an ownership interest in you.
4.3. NOTIFICATION OF INFRINGEMENTS AND CLAIMS. You agree to notify us immediately of any apparent infringement or improper use of any Marks, or of any claim by any person of any rights in any Marks, and agree not to communicate with any person other than us, our attorneys and your attorneys in connection with any such infringement, challenge or claim. We have sole discretion to take such action as we deem appropriate and the right to control exclusively any litigation, United State Patent and Trademark Office (“USPTO”) proceeding or any other administrative proceeding arising out of any such infringement, challenge or claim or otherwise relating to any Marks.
4.4. PHOTOGRAPHS AND OTHER LIKENESSES. To the extent You or any of your agents, employees, representatives, or assigns upload, add, modify, supplement, create, or present any photographs, pictures, likenesses, videos, or other such depictions of any vehicles, limousines, or anything used or depicting the usage of the services rendered by You (hereinafter collectively referred to as “Likenesses”) on any of the Price 4 Limo website(s), We shall have an irrevocable license to duplicate, replicate, copy, transfer, and utilize these Likenesses for any reason, manner, or purpose at any time in our sole discretion including without limitation subsequent to the termination of this Agreement.
5. CONFIDENTIAL INFORMATION.
5.1. DETERMINATION OF CONFIDENTIAL INFORMATION. We possess (and will continue to develop and acquire), and may disclose to you, certain confidential information (the “Confidential Information”) relating to the development and operation of the limousine and other transportation related referral businesses. You acknowledge and agree that you will not acquire any interest in Confidential Information, other than the right to utilize Confidential Information disclosed to you in operating the business during the term of this Agreement, and that the use or duplication of any Confidential Information in any other business would constitute an unfair method of competition. You further acknowledge and agree that Confidential Information is proprietary, includes our trade secrets and is disclosed to you solely on the condition that you agree, and you do hereby agree, that you:
5.1.1 You agree that you will take all reasonable measures to maintain the confidentiality of all Confidential Information in your possession or control and that all such Confidential Information and trade secrets shall remain our exclusive property and any use thereof shall be only for the purposes of and in connection with this Agreement,
5.1.2 Will maintain the absolute confidentiality of Confidential Information during and after the term of this Agreement;
5.1.3 Will not make unauthorized copies of any portion of Confidential Information disclosed via electronic medium or in written or other tangible form; and
6. RECORDS AND REPORTS.
6.1. BOOKKEEPING. You agree to establish and maintain at your own expense a bookkeeping, accounting and record keeping system of all limousine and other transportation related referrals provided to you by us.
7.1. BY US. This Agreement and each of our rights under it are fully transferable by us and will inure to the benefit of any transferee or other legal successor to our interests herein. We have the right to delegate any of our obligations under this Agreement to any person or entity.
7.2. BY YOU. You understand and acknowledge that the rights and duties created by this Agreement are personal to your owners and that we have granted the affiliation to you in reliance upon our perceptions of your owners' individual or collective character, skill, aptitude, attitude, business ability, acumen and financial capacity. Accordingly, neither this Agreement (or any interest therein) nor any Affiliation or affiliate relationship may be transferred without our prior written approval. Our approval is conditioned on the prospective transferee agreeing to sign a then-current Affiliate Agreement with us. Any transfer without such approval constitutes a breach of this Agreement and is void and of no effect. As used in this Agreement, the term "transfer" includes your (or your owners') voluntary, involuntary, direct or indirect assignment, sale, gift or other disposition of any interest in: this Agreement; you; or the business.
8. TERMINATION OF AGREEMENT.
8.1. Either party may terminate this Agreement with or without cause. However, the representations made herein by you and your obligations contained herein shall survive such termination.
9. RELATIONSHIP OF THE PARTIES AND INDEMNIFICATION.
9.1. NO RELATIONSHIP CREATION. You and we understand and agree that this Agreement does not create a fiduciary relationship between you and us, that nothing in this Agreement is intended to make either you or us a general or special agent, joint venturer, independent contractor, partner or employee of the other for any purpose.
9.2. NO LIABILITY FOR ACTS OF OTHER PARTY. You agree not to employ any of the Marks in signing any contract or applying for any license or permit and that you will not use the Marks in any way we have not expressly authorized. Neither we nor you will make any express or implied agreements, warranties, guarantees or representations or incur any debt in the name or on behalf of us under any agreements that are not expressly authorized in writing. We will not be obligated for any damages of any nature whatsoever to any person or property directly or indirectly arising out of your operation or the business you conduct pursuant to this Agreement.
9.3 TAXES. We will have no liability for any sales, use, service, occupation, employment related, excise, gross receipts, income, property or other taxes, whether levied upon you or the business, in connection with the business you conduct (except any taxes we are required by law to collect from you with respect to purchases from us). Payment of all such taxes are your responsibility.
9.4 INDEMNIFICATION. You agree to indemnify, exculpate, defend and hold us, our affiliates and our respective shareholders, members, managing members, directors, officers, employees, agents, successors and assignees (the “Indemnified Parties”) harmless from and against and to reimburse any one or more of the Indemnified Parties for all claims, obligations and damages threatened, alleged, incurred, assumed, and/or pled as against us, any and all taxes and any and all claims and liabilities directly or indirectly arising out of your operation or your breach of this Agreement. For purposes of this indemnification, “claims” includes all obligations, liabilities, costs, damages (actual, consequential or otherwise) and costs reasonably incurred in the defense of any claim against any of the Indemnified Parties, including, without limitation, reasonable accountants', arbitrators', attorneys' and expert witness fees, costs of investigation and proof of facts, court costs, other expenses of litigation, arbitration or alternative dispute resolution and travel and living expenses. We have the right to defend any such claim against us. This indemnity will continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement.
9.5. MITIGATION NOT REQUIRED. Under no circumstances will we or any other Indemnified Party be required to seek recovery from any insurer or other third party, or otherwise to mitigate our, their or your losses and expenses, in order to maintain and recover fully a claim against you. You agree that a failure to pursue such recovery or mitigate a loss will in no way reduce or alter the amounts we or another Indemnified Party may recover from you.
10. INSURANCE OBLIGATION.
10.1. INSURANCES. In order to commence your affiliate relationship with us, prior to, you must produce to our satisfaction to be determined in our sole and complete discretion adequate liability insurance coverages in an amount of at least ONE MILLION AND NO/100 DOLLARS ($1,000,000.00) whereby the following parties shall be identified as an additional insured for all purposes, Price For Limo, LLC, Price4Limo, and Mr. Eric Salat. At any time, and in our sole and complete discretion, the amounts of insurance coverage, the type of insurance coverage, and/or the identity of the named insured(s) on such policies of insurance may be modified by us with which you must comply within thirty (30) days otherwise termination of this Agreement will ensue.
11.1 SEVERABILITY AND SUBSTITUTION OF VALID PROVISIONS. Except as expressly provided to the contrary herein, each provision of this Agreement, and any portion thereof, will be considered severable, and if, for any reason, any such provision is held to be invalid or contrary to or in conflict with any applicable present or future law or regulation in a final, unappealable ruling issued by any court, agency or tribunal with competent jurisdiction in a proceeding to which we are a party, that ruling will not impair the operation of, or have any other effect upon, such other portions of this Agreement as may remain otherwise intelligible, which will continue to be given full force and effect and bind the parties hereto, although any portion held to be invalid will be deemed not to be a part of this Agreement from the date the time for appeal expires, if you are a party thereto, otherwise upon your receipt from us of a notice of non-enforcement thereof.
11.2. LESSER COVENANT ENFORCEABLE. If any covenant herein which restricts competitive activity is deemed unenforceable by virtue of its scope in terms of area, business activity prohibited and/or length of time, but would be enforceable by reducing any part or all thereof, you and we agree that such covenant will be enforced to the fullest extent permissible under the laws and public policies applied in the jurisdiction whose law is applicable to the validity of such covenant.
11.3. GREATER NOTICE. If any applicable and binding law or rule of any jurisdiction requires a greater prior notice than is required hereunder of the termination of this Agreement or the taking of some other action not required hereunder, or if, under any applicable and binding law or rule of any jurisdiction, any provision of this Agreement is invalid or unenforceable, the prior notice and/or other action required by such law or rule will be substituted for the comparable provisions hereof, and we will have the right in our sole discretion to modify such invalid or unenforceable provision to the extent required to be valid and enforceable. You agree to be bound by any promise or covenant imposing the maximum duty permitted by law which is subsumed within the terms of any provision hereof as though it were separately articulated in and made a part of this Agreement, that may result from striking from any of the provisions hereof any portion or portions which a court or arbitrator may hold to be unenforceable in a final decision to which we are a party, or from reducing the scope of any promise or covenant to the extent required to comply with such a court order or arbitration award. Such modifications to this Agreement will be effective only in such jurisdiction, unless we elect to give them greater applicability, and will be enforced as originally made and entered into in all other jurisdictions.
11.4. WAIVER OF OBLIGATIONS. We and you may by written instrument unilaterally waive or reduce any obligation of or restriction upon the other under this Agreement, effective upon delivery of written notice thereof to the other or such other effective date stated in the notice of waiver. Any waiver we grant will be without prejudice to any other rights we may have, will be subject to our continuing review and may be revoked, in our sole discretion, at any time and for any reason, effective upon delivery to you of ten (10) days' prior written notice.
11.5. NON-WAIVER. We and you will not be deemed to have waived or impaired any right, power or option reserved by this Agreement (including without limitation the right to demand exact compliance with every term, condition and covenant herein or to declare any breach thereof to be a default and to terminate this Agreement prior to the expiration of its term) by virtue of any custom or practice at variance with the terms hereof; our or your failure, refusal or neglect to exercise any right under this Agreement or to insist upon exact compliance by the other with our and your obligations hereunder.
11.6.COSTS AND ATTORNEYS’ FEES. If we incur expenses in connection with your failure to pay when due amounts owed to us, to submit when due any reports, information or supporting records or otherwise to comply with this Agreement, you agree to reimburse us for any of the costs and expenses which we incur, including, without limitation, reasonable accounting, attorneys', arbitrators' and related fees.
11.7. RIGHTS OF PARTIES ARE CUMULATIVE. Our and your rights hereunder are cumulative, and no exercise or enforcement by us or you of any right or remedy hereunder will preclude our or your exercise or enforcement of any other right or remedy hereunder which we or you are entitled by law to enforce.
11.8. GOVERNING LAW AND VENUE. All matters will be governed by Florida law and any and all litigation shall be brought and venued exclusively in Circuit Court Palm Beach County, Florida. The prevailing party in any such litigation shall be entitled to reimbursement of all its attorneys fees and costs, including without limitation any and all pre-litigation, appellate and post judgment attorneys fees and costs.
11.9. CONSENT TO JURISDICTION. You and your owners agree that we may institute any action against you or your owners in Circuit Court in Palm Beach County, Florida and you (and each owner) irrevocably submit to the jurisdiction of such courts and waive any objection you (or her or she) may have to either the jurisdiction of or venue in such courts.
11.10. BINDING EFFECT. This agreement is binding upon us and you and our respective executors, administrators, heirs, beneficiaries, assigns and successors in interest and may not be modified except by written agreement signed by you and us.
11.11. HEADINGS. The headings of the several Articles hereof are for convenience only and do not define, limit or construe the contents of such Articles.
11.12. JOINT AND SEVERAL OWNERS’ LIABILITY. If two or more persons are at any time the owner of the business hereunder, whether as partners or joint venturers, their obligations and liabilities to us will be joint and several. References to “owner” mean any person holding a direct or indirect, legal or beneficial ownership interest or voting rights in you including without limitation, any person who has a direct or indirect interest in you (or a transferee), this Agreement, or the business and any person who has any other legal or equitable interest, or the power to vest in himself any legal or equitable interest, in the revenue, profits, rights or assets thereof. References to a “controlling interest” in you mean five (5%) percent or more of your voting shares or other voting rights if you are a corporation or partnership. “Person” means any natural person, corporation, general or limited partnership, unincorporated association, cooperative or other legal or functional entity.
11.13. MULTIPLE COPIES. This Agreement may be executed in multiple copies, each of which will be deemed an original.
12. NOTICES AND PAYMENTS.
12.1. NOTICES. All written notices and reports permitted or required to be delivered by the provisions of this Agreement or the Operations Manual will be deemed so delivered.
12.1.1. At the time delivered by hand;
12.1.2. One (1) business day after transmission by telecopy, facsimile or other electronic system;
12.1.3. One (1) business day after being placed in the hands of a commercial courier service for next business day delivery; or
12.1.4. Three (3) business days after placement in the United States Mail by Registered or Certified Mail, Return Receipt Requested, postage prepaid; and must be addressed to the party to be notified at its most current principal business address of which the notifying party has been notified. Any required payment or report which we do not actually receive during regular business hours on the date due (or postmarked by postal authorities at least two (2) days prior thereto) will be deemed delinquent.
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