ADVERTISING SERVICES PURCHASE AGREEMENT

BETWEEN

DRIVE BUY MEDIA, INC.

AND

ADVERTISER

This Advertising Purchase Agreement ("Agreement") is made and effective this October 23, 2009, by and between the individual or entity purchasing advertising or services at www.drivebuymedia.com ("Advertiser"), and Drive Buy Media, Inc., a California corporation ("Company").

RECITALS

Company is in the business of providing mobile video advertising services for a fee.

Advertiser desires to engage Company to render, and Company desires to render to Advertiser, certain advertising agency services, as set forth in this Agreement.

 

TERMS AND CONDITIONS

NOW, THEREFORE, in consideration of the mutual agreements and covenants herein contained, the parties hereto agree as follows:

1. Definitions.

The following words and expressions shall have the following meanings unless the context otherwise requires:

1. Advertisement means any page or part thereof containing graphics, images, pictures or text put forward by Advertiser to be printed, viewed on www.drivebuymedia.com or related sites, or displayed by Company’s mobile video vehicles (“MVV”);
2. Advertisement Inputs means the graphics, text, pictures and/or images provided by Advertiser to Company pursuant to the Advertisement Input Guidelines noted on www.drivebuymedia.com, as amended from time to time;
3. Advertisement Specifications means the specifications for Advertisements as set forth at www.driveuymedia.com, as amended from time to time by the Company
4. Advertising Copy means advertising text, content or graphics intended for reproduction by the Company via MVV or www.drivebuymedia.com;
5. Advertising Space means advertising space available to be shown on one or more MVV’s, and/or via www.drivebuymedia.com, which has been booked by the Advertiser pursuant to these Terms;
6. Link means any website link provided at www.drivebuymedia.com which allows access to Advertiser’s website;
7. Production Deadline means the dates specified on www.drivebuymedia.com for Advertisements;
8. Production Guidelines means the guidelines specified on www.drivebuymedia.com, as amended from time to time.

 

2. Basis of Contract.

These Terms shall apply to the sale by Company of all Advertising Space purchased by the Advertiser via online purchase, telephone, or fax and these Terms shall govern each Contract to the exclusion of any other terms and conditions introduced or submitted by the Advertiser.

3. Term.

The term of this Agreement shall commence on the date that Company first displays the Advertisement via MVV, which date shall be no later than 72 hours after Advertiser executes this Contract or purchases Advertising Space via www.drivebuymedia.com, and shall continue in full force and effect until terminated by either party upon at least 72 hours prior written notice. The rights, duties and obligations of the parties shall continue in full force during or following the period of the termination notice until termination, including the ordering and billing of advertising in media whose closing dates follow then such period.

4. Acceptance of Advertisement.

Companyreserves the right to refuse any Advertisement that does not completely conform to every detail, instruction, method, and guideline set in the Advertisement Specifications which can be found www.drivebuymedia.com.  Company may, in its sole and exclusive discretion, refuse the use of any other advertising that it deems inappropriate. Advertisements are accepted subject to the following conditions:

1. the Advertising Copy must be received by the Company no later than 72 hours prior to the relevant Production Deadline and the Advertiser shall supply the Advertising Copy in such forms as the Company shall specify in the Advertisement Specifications;
2. advertising Space being available;
3. The Company has at its absolute discretion the right to omit, suspend or change the position of any Advertisement accepted including but not limited to the following reasons:
1.  to comply with legal, contractual or moral obligations placed on the Company or any Advertiser; and
2. to a void infringing third party's rights
4. The Company may make any additions to, changes in or deletions from any Advertisement Copy (including, but not limited to, reformatting, cropping, resizing, and editing) required by any competent authority, provided that the Company shall inform the Advertiser prior to making any addition, change or deletion, where reasonably practicable;
5. In the event that the Company fails to publish any Advertisement in accordance with this Paragraph, the Company shall not incur any liability to the Advertiser for any damage or loss in respect of non-publication, provided Company refunds Advertiser for any payments made for the time during which the Advertisement was intended to run;
6. It is the responsibility of the Advertiser to check that the Advertisement Copy is correct. Without prejudice to this paragraph, Company accepts no liability for any error in the Advertisement, or in the case of multiple Advertisements the repetition of an error unless notified in writing by Advertiser.
5. Advertisement Content and Warranties.
1. Advertiser Warranty. Advertiser hereby represents and warrants to Company that  Advertiser's Advertisements do not now, and will not, violate any criminal laws or any rights of any third parties, including, but not limited to, infringement or misappropriation of any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, violation of any antidiscrimination law or regulation, or any other right of any person or entity.
2. No Objectionable Content. Advertiser's Advertisements do not now, and will not, include any material that is: unlawful, harmful, fraudulent, threatening, abusive, harassing, defamatory, vulgar, obscene, profane, hateful, racially, ethnically or otherwise objectionable, including, without limitation, any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national or international law.
6. Payment.

All payments for Advertising Space are due no less than 72 hours prior to the initial display (or first day of recurring display) of the Advertisment.

The Advertising Rate to be paid by the Advertiser is the rate displayed on the company’s website, www.drivebuymedia.com, as amended from time to time, in the Company’s sole and exclusive discretion. Company reserves the right to change the Advertising Rate at anytime without notice to Advertiser.

1. Monthly payments

Company shall continue to exhibit Advertisements both in MVV’s and on its website on a recurring basis (i.e., monthly), unless notified in writing by Advertiser 72 hours or more before the first day of the following calendar month.  The Company shall charge Advertiser the Advertising Rate on or about the first day of each calendar month that Company exhibits the Advertisement.

Payment shall be in the following amounts, and shall be due and payable on or about the first day of each calendar month until Advertiser terminates this Agreement: (Please circle the appropriate payment schedule)

            Total Showings            Length of Ad               Total Payment
            on One MVV Per
            30 days

            240                              16 seconds                       $495.00
            240                              32 seconds                       $895.00
            240                              60 seconds                       $1,295.00

During each calendar month that the Advertisement is shown on the Company’s MVV, a link to Advertiser’s website will be displayed at www.drivebuymedia.com.

2. Full Day or Half Day Rentals

Provided an MVV is available on the requested date and Company approves the same at its sole and exclusive discretion, Company shall park and/or drive an MVV in a single space or a pre-specified area for a pre-arranged period of time while exhibiting no Advertisement other than that associated with Advertiser.  Payment shall be made 72 hours prior to the requested date of delivery of MVV in the following amounts: (Please circle the appropriate payment schedule, if any)

            4 hours                                    $1,500
            8 hours                                    $2,500

No MVV is available for exclusive viewing of the Advertisement unless rented for a minimum of 4 hours.

3. Advertisement Production

If requested, the Company will produce and create an Advertisement for Advertiser.  Advertisements produced and/or created by the Company shall consist of graphics, images and text consistent with the Production Guidelines.  Prior to such production, Advertiser must comply with all Advertisement Specifications and Advertisement Inputs, as noted on www.drivebuymedia.com, as amended from time to time.  Prior to commencement of production, Advertiser shall pay to Company the following amounts: (Please circle the appropriate payment schedule, if any)

            16 seconds                       $150
            32 seconds                       $275
            60 seconds                       $525

Company shall provide Advertiser with a first draft of the Advertisement within fifteen (15) business days of receipt of payment and Advertisement Inputs.   The following schedule shall apply to requests for modification by Advertiser:  Advertiser shall provide, in writing, reasonable comments and/or requested modifications within seven (7) calendar days after receipt of same.  Company shall provide reasonable modifications to Advertisement consistent with Advertiser comments within seven (7) calendar days.  Advertiser may provide, in writing, final comments within three (3) days thereafter.  Company shall provide reasonable modifications to Advertisement consistent with second round of Advertiser comments within seven (7) days thereafter.  Advertiser’s failure to respond within the time frames noted above shall constitute acceptance of the Advertisement created by Company.

In the event that Advertiser purchases Advertising Space via www.drivebuymedia.com, Advertiser’s choices as expressed in the website’s Shopping Cart shall control for purposes of determining payment requirements pursuant to this paragraph, if any,

7. Cancellation.

Advertiser may cancel this Agreement at any time, provided said cancellation is in writing and occurs no less than 72 hours prior to the first day of the calendar month in which the Advertisement has been scheduled for exhibition on MVV.  However, upon receipt of payment by the Company for production and/or creation of an Advertisement, no cancellation shall be accepted.

8. Ownership and Use.
1. Company shall insure, to the fullest extent possible under law, that Advertiser shall own any and all right, title and interest in and to, including copyrights, trade secret, patent and other intellectual property rights, with respect to any Advertisement produced and/or created by Company for Advertiser, provided Advertiser has paid any and all costs, fees and expenses associated with said Advertisement.
2. Upon termination, Advertiser agrees that any advertising, merchandising, package, plan or idea prepared by Company and submitted to Advertiser (whether submitted separately or in conjunction with or as a part of other material) which Advertiser has elected not to utilize, shall remain the property of Company. Advertiser agrees to return to Company any copy, artwork, plates or other physical embodiment of such creative work relating to any such idea or plan which may be in Advertiser's possession at termination or expiration of this Agreement.
9. Copyright.

The Advertiser hereby grants to the Company a worldwide licence to reproduce, display and copy the Advertisement via MVV and the website, www.drivebuymedia.com, and/or its related websites.

10. Confidentiality.
1. Defined. "Confidential Information" will mean: (i) Advertisements, prior to publication, (ii) any Company Web Site or traffic statistics, such as number of visitors/unique viewers, page views, etc., which shall be considered Company's Confidential Information, and (iii) any information designated in writing by the disclosing party as "confidential" or "proprietary."
2. Obligations. During the term of this Agreement and for a period of three (3) years thereafter, neither party will use or disclose any Confidential Information of the other party except as specifically contemplated herein. The foregoing restrictions will not apply to information that (i) has been independently developed by the receiving party, (ii) has become publicly known through no wrongful act of the receiving party, (iii) has been rightfully received from a third party authorized to make such disclosure, (iv) has been approved for release by the disclosing party in writing, or (v) is required to be disclosed by a competent legal tribunal.
11. Limitation of Damages.
1. Limitation. In no event will Company be liable to Advertiser for any lost profits, lost data, costs of procurement of substitute goods or services, or any form of special, incidental, indirect, consequential or punitive damages of any kind (whether or not foreseeable), whether based on breach of contract, tort (including negligence), product liability or otherwise, even if Company is informed in advance of the possibility of such damages. Company's total liability under this Agreement is limited to the payments received by Company from Advertiser hereunder for the current term of this Agreement only, without regard to any previous agreements or versions of this Agreement between the Company and the Advertiser.
   
2. Failure of Essential Purpose. The parties have agreed that the limitations and exclusions of liability specified in this Agreement will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
   
3. Basis of the Bargain. Advertiser acknowledges that Company has set its rates and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties.
12. Indemnification.
1. Advertiser shall indemnify and hold Company harmless with respect to any claims, loss, suit, liability or judgment suffered by Company, including reasonable attorney's fees and costs, based upon or related to any item prepared by Advertiser or at Advertiser's direction, including, but not limited to, any claim of libel, slander, piracy, plagiarism, invasion of privacy, or infringement of copyright or other intellectual property interest, except where any such claim arises out of material supplied by Company and incorporated into any materials or advertisement prepared by Company.
2. Advertiser agrees to indemnify and hold Company harmless with respect to any claims, loss, liability, damage or judgment suffered by Company, including reasonable attorney's fees and court costs, which results from the use by Company of any material furnished by Advertiser or where material created by Company or at the direction of Company subject to the indemnification in subsection 12(a) above is materially changed by Advertiser. Information or data obtained by Company from Advertiser to substantiate claims made in advertising shall be deemed to be "material furnished by Advertiser to Company".
13. Assumption of Risk.

The Advertiser is solely responsible for any legal liability arising out of or relating to the Advertisement and/or any material to which users can link through the Advertisement. The Advertiser represents and warrants that the Advertisement and Link comply with Company's hosting and advertising standards; and that Advertiser holds the necessary rights to permit the use of the Advertisement and link by Company or the sites on which the advertisements are to be placed by Company on the Advertiser's behalf.

The Advertiser warrants that the use, reproduction, distribution, or transmission of the Advertisement for the purpose of this Agreement will not violate any criminal laws or any rights of any third parties, including, but not limited to, such violations as infringement or misappropriation of any copyright, patent, trademark, trade secret, music, image, or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or rights of celebrity, violation of any antidiscrimination law or regulation, or any other right of any person or entity. Advertiser agrees to indemnify Company and to hold Company harmless from any and all liability, loss, damages, claims, or causes of action, including reasonable legal fees and expenses that may be incurred by Company, arising out of or related to a breach of any of the foregoing representations and warranties or any other dispute or claim which may arise in relation to advertising or promotional efforts of Company's on the Advertisers behalf, regardless of whether such dispute may be due to the success or the lack of such in any promotional effort. The Advertiser agrees to request that Company be listed as an additional insured on any policy issued to Advertiser pursuant to which there could be coverage for any of the forms of legal liability described in this paragraph.

The Advertiser further agrees that Company only places the ads on behalf of the Advertiser and cannot assume any responsibility for quantity or quality of response to the placed advertisements, and that Company will not get involved in any dispute between any responder and the Advertiser, however in a case where Company considers the advertised content to be misleading or that the Advertiser may not be able to deliver on it's promises, then the Advertiser hereby grants Company the rights to discontinue such contentious ads without prior warning to the Advertiser or to discontinue any contentious ads when Company deems such discontinuation may protect the Advertiser and/or Company from harm, legal action or negative publicity.

14. Termination.

In the event of a breach by Advertiser of any of its obligations hereunder, Company may terminate this Agreement immediately upon written notice to Advertiser. In the event of a breach by Company of any of its obligations hereunder, Advertiser may terminate this Agreement upon thirty (30) days written notice to the other party.

If this Agreement is terminated by Company for breach by Advertiser, Advertiser shall remain liable for the value of the payments which are due or would otherwise become due and payable under the terms of this Agreement as fully performed. If this Agreement is terminated by Advertiser for breach by Company, Advertiser shall remain liable solely for the value of the payments which are due for advertising services already provided hereunder.

15. Rights Upon Termination.
1. Upon termination of the Agreement, Company shall transfer, assign and make available to Advertiser all property and materials in Company's possession or subject to Company's control that are the property of Advertiser, subject to payment in full of amounts due pursuant to this Agreement.
2. Upon termination, Company agrees to provide reasonable cooperation in arranging for the transfer or approval of third party's interest in all contracts, agreements and other arrangements with advertising media, suppliers, talent and others not then utilized, and all rights and claims thereto and therein, following appropriate release from the obligations therein.
3. The following provisions will survive the expiration or termination of this Agreement for any reason: Section 1 (Definitions), Section 2 (No Warranty), Section 3(c), Section 4 (Indemnification), Section 6 (Confidentiality), Section 7 (Limitation on Damages), Section 8(c) (Effect of Termination), and Section 9 (General). (iii) Return of Materials. Upon expiration or termination of this Agreement for any reason, Advertiser will promptly and at the direction of Company either destroy, or return to Company, and will not take or use, all items of any nature that belong to Company or its Advertisers or other customers and all records (in any form, format, or medium) containing or relating to Confidential Information.
16. Default.

In the event of any default of any material obligation by or owed by a party pursuant to this Agreement, then the other party may provide written notice of such default and if such default is not cured within ten (10) days of the written notice, then the non-defaulting party may terminate this Agreement.

17. Notices.

Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services.

If to Advertiser:

The address and contact information provided on the website www.driveuymedia.com with respect to the purchase contemplated herein.

If to Company:

Drive Buy Media, Inc.
c/o: Dan Zaharoni, Esq.
5400 W. Rosecrans Ave.
Hawthorne, CA 90250
(o) (424) 236-4600
(f) (424) 236-4601

18. Attorneys Fees.

In the event of any proceeding, litigation or suit against Advertiser by any regulatory agency or in the event of any court action or other proceeding challenging any advertising prepared by Company, Company shall assist in the preparation of the defense of such action or proceeding and cooperate with Advertiser and Advertiser's attorneys.

In the event of litigation between Advertiser and Company arising out of this Agreement, the prevailing party shall be entitled to reasonable attorneys fees and costs.

19. Headings.

Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.

20. Entire Agreement.

This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both parties.

21. Governing Law and Venue.

This Agreement shall be construed and enforced in accordance with the laws of the state of California. The Superior Court of Los Angeles County and/or the United States District Court for the Central District of California shall have exclusive jurisdiction and venue over all controversies in connection herewith, and each party hereby consents to such exclusive and personal jurisdiction.

22. Assignment.

Advertiser may not assign this Agreement in whole or in part, by operation of law or otherwise, without Company's written consent, and any attempted assignment of this Agreement without such consent will be null and void.

23. Force Majeure.

Except for the obligation to pay money, neither party will be liable to the other party for any failure or delay in performance caused by reasons beyond such party's reasonable control, and such failure or delay will not constitute a breach of this Agreement.

24. Waiver.

The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.

25. Severability.

If one or more of the provisions contained in this Agreement is determined to be invalid, illegal or unenforceable in any respect under any applicable statute or rule of law, then such provision will be considered inoperable to the extent of such invalidity, illegality or unenforceability, and the remainder of this Agreement will continue in full force and effect. The parties hereto agree to replace any such invalid, illegal or unenforceable provision with a new provision that has the most nearly similar permissible economic and legal effect.

IN WITNESS WHEREOF, the parties hereto have executed this Advertising Agency Agreement as of the date first above written