f10q0910a1ex10vii_carcharg.htm

WHEREAS, CAR CHARGING HOLDINGS, LLC and/or its designated assigns with an office address of 1691 Michigan Avenue, Suite #425, Miami Beach, Florida 33139 (hereinafter “PROVIDER”), desires to be engaged by AIRPORT PARKING, LLC d/b/a PARK BARK AND FLY, with an address of (hereinafter “CLIENT”) for the term of this Exclusive Electric Car Charging Station, Installation, Supply and Maintenance Contract (the “Contract”) and any renewals and/or extensions hereof (each, respectively, a “Renewal Term”), as the exclusive provider to CLIENT to make available, provide, install, maintain, service and operate electric car charging facilities wheresoever located within the property of CLIENT at the address(es) set forth on annexed EXHIBIT A which is incorporated by reference herein, and which includes, for illustration but not limitation, the equipment shown on EXHIBIT B (the “Equipment”); and

PROVIDER agrees to supply and install, at PROVIDER's sole expense, the Equipment at the Designated Areas. The location of the Designated Areas shall be agreed upon in writing by the parties and EXHIBIT C shall be updated from time to time to reflect the addition of additional Designated Areas.

3.2 CLIENT agrees, at its own expense and at all times during the Contract term and any extension or renewal, to keep public Areas, streets and sidewalks appurtenant to any Designated Areas, reasonably free of debris and rubbish and in good repair and condition. In addition, CLIENT shall provide and maintain, in compliance with the requirements of the applicable codes and statutes, such outdoor lights and lighting as may be necessary to illuminate the Designated Areas and Equipment. Further, CLIENT shall be solely responsible for providing and shall pay any and all utility use charges for all utilities serving the Equipment, including electricity. In the event CLIENT knows of or becomes aware of any actual or potential claim against the PROVIDER by any person or entity, or any actual or potential malfunction with the Equipment, CLIENT shall notify PROVIDER promptly upon notification of such claim or malfunction.

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4. Revenue. PROVIDER shall charge customers a fee based on the PROVIDER shall have the right, in its sole and absolute discretion, to determine the price charged for use of the Equipment by the end users. CLIENT shall have no claim for any additional payments beyond the amounts listed herein.

5. Licenses/Permits. PROVIDER agrees that it shall obtain any and all necessary licenses and/or permits for the installation and operation of the Equipment and shall be solely and exclusively responsible for any citations as a result of any default under this §5.

9.1 CLIENT shall indemnify PROVIDER and hold it harmless from and against any and all claims, actions, damages, liabilities and expenses incurred in connection with loss of life, personal injury and/or damage to property arising out of any occurrence in, upon or at a Designated Area adjacent to the Equipment or any part thereof, or occasioned wholly or in part by any act or omission of CLIENT, its agents, employees or servants.

9.2 PROVIDER shall indemnify CLIENT and hold it harmless from and against any and all claims, actions, damages, liabilities and expenses incurred in connection with loss of life, personal injury and or damage to property arising out of the Equipment or any part thereof, or occasioned wholly or in part by any act or omission of PROVIDER, its agents, employees or servants.

9.3 In case either PROVIDER or CLIENT shall, without any fault of its part, be made a party to litigation commenced by or against the other party, then each party shall protect and hold the other party harmless and shall; pay all costs, expenses and reasonable attorney’s fees that may be incurred or paid in defending against such action and/or otherwise enforcing the covenants of this Contract.

11. Default. No party shall commit or allow to continue any breach of this Contract, which shall not have been cured within sixty (60) days after receipt of written notice from the non-breaching party specifying the breach; provided, however that if the breach cannot be cured within sixty (60) days, the breaching party shall not be in default if, within such sixty (60) day period, it shall have commenced to cure said breach and shall continue its efforts with due diligence. Upon the occurrence of a default and a failure to cure within the allotted cure period, the non-breaching party shall have the right, at the option of the non-breaching party, to (i) terminate this Contract, whereupon, neither party shall have any further rights, obligations or liabilities hereunder, except as otherwise expressly provided herein or (ii) continue this Contract in full force and effect, notwithstanding the occurrence of such default. Except as otherwise provided in this Contract, the rights and remedies granted in this Contract are cumulative and are in addition to any given by any statutes, rule at law or otherwise, and the use of one remedy shall not be taken to exclude or waive the right to use another.

12. Binding. This Contract shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns. Nothing contained in it, whether expressed or implied, is intended to give or shall be construed as giving anyone other than the parties and the named CLIENT and their successors or assigns any rights under this Agreement. This Agreement shall not be binding or enforceable against PROVIDER unless and until it is countersigned by PROVIDER after receipt of an executed copy from CLIENT.

14. Final Agreement. This Contract constitutes the final understanding and agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, understandings and agreements between the parties, whether written or oral. This Contract may be amended, supplemented or changed only by an agreement in writing signed by both of the parties.

15. Severability. If any term or provision of this Contract is found by a court of competent jurisdiction to be invalid or unenforceable, then this Contract, including all of the remaining terms and provisions, shall remain in full force and effect as if such invalid or unenforceable term had never been included.

16. Counterparts. This Contract may be executed in any number of counterparts (including facsimile or scanned versions), each of which shall be an original but all of which together will constitute one instrument, binding upon all parties hereto, and notwithstanding that all of such parties may not have executed the same counterpart.

Governing Law, Jurisdiction, Venue and Waiver of Jury Trial: Any suit involving any dispute or matter arising under this Agreement may only be brought in State or Federal Court of Broward County, Florida which shall have jurisdiction over the subject matter of the dispute or matter. PROVIDER and CLIENT irrevocably and unconditionally submit to the personal jurisdiction of such courts and agree to take any and all future action necessary to submit to the jurisdiction of such courts. PROVIDER and CLIENT irrevocably waive any objection that they now have or hereafter irrevocably waive any objection that they now have or

hereafter may have to the laying of venue of any suit, action or proceeding brought in any such court and further irrevocably waive any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum. Final judgment against PROVIDER or CLIENT in any such suit shall be conclusive and may be enforced in other jurisdictions by suit on the judgment, a certified or true copy of which shall be conclusive evidence of the fact and the amount of any liability of PROVIDER or CLIENT therein described, or by appropriate proceedings under any applicable treaty or otherwise. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER AGREEMENT OR INSTRUMENT DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

19. Injunctive Relief. The Parties recognize that the obligations under this Agreement are special, unique and of extraordinary character and the parties acknowledges the difficulty in forecasting damages arising from the breach of any of the obligations or restrictive covenants (including those contained in Paragraphs 3 and 9) and that the non-breaching may be irreparably harmed thereby. Therefore, the parties agree that the non-breaching party shall be entitled to elect to enforce each of the obligations and restrictive covenants by means of injunctive relief or an order of specific performance and that such remedy shall be available in addition to all other remedies available at law or in equity, including the recovery of damages from the non-breaching party’s agents or affiliates involved in such breach. In such action, the non-breaching party shall not be required to plead or prove irreparable harm or lack of an adequate remedy at law or post a bond or any security.

20. Notices: Any notice required to be given or otherwise given pursuant to this Agreement shall be in writing and shall be hand delivered, mailed by certified mail, return receipt requested or sent recognized overnight courier service as follows:

21. Insurance. At all times during the term of this Contract, PROVIDER shall keep and maintain, insurance as may be required by law or may be necessary to protect PROVIDER, CLIENT and the Equipment from claims of any person who may perform work, service, maintenance and/or may otherwise utilize the Equipment (as may be reasonably determined by PROVIDER). PROVIDER shall further procure and maintain, at its own cost and expense and at all times during the Contract term, comprehensive general public liability insurance and any additional insurance coverage to insure against major vandalism of the installed Equipment. PROVIDER shall furnish to CLIENT, a certificate of insurance evidencing such insurance is in full force and effect.

24. Attorney’s Fees. In the event of any dispute hereunder, the prevailing party shall be entitled to recover all costs and expenses incurred by it in connection with the enforcement of this Agreement, including all attorneys’ fees on both trial and appellate levels.

25. Relationship of the Parties. PROVIDER acknowledges that it has its own independently established business that is separate and apart from CLIENT’s business. Nothing in this Agreement shall constitute or be deemed to constitute a partnership or joint venture between the parties hereto or constitute or be deemed to constitute any party the agent or employee of the other party for any purpose whatsoever and neither party shall have authority or power to bind the other or to contract in the name of, or create a liability against, the other in any way or for any purpose.

26. Force Majeure. If PROVIDER shall be delayed or hindered in or prevented from the performance of any act required under this Contract by reason of any strike, lockout, labor trouble, inability to procure materials, or energy, failure of power, hurricane, restrictive governmental laws or regulations, riot, insurrection, picketing, sit-ins, war or other unavoidable reason of a like nature not attributable to the negligence or fault of PROVIDER, then the performance of such work or action will be excused for the period of the unavoidable delay and the period for the performance of any such work or action will be extended for an equivalent period.

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28. Estoppel Certificate. At any time and from time to time, CLIENT agrees upon request in writing from PROVIDER to execute, acknowledge and deliver to PROVIDER a statement in writing certifying that this Contract is unmodified and in full force and effect (or if there have been modifications that the same is in full force and effect as modified) and the dates to which the revenue share has been paid.

30. No Third-Party Rights. The provisions of this Contract are for the exclusive benefit of Provider and CLIENT only, and no other shall have any right or claim against either party or be entitled to enforce any provisions hereunder against any party hereto.

31. Effective Date/Binding Authority. This Contract shall be effective as of the date a countersigned copy hereof is provided by PROVIDER to CLIENT. PROVIDER shall not be bound under any terms hereof to CLIENT until such time as a countersigned copy is provided to CLIENT.

CLIENT:		PROVIDER:

AIRPORT PARKING, LLC d/b/a		CAR CHARGING HOLDINGS, LLC, a
PARK BARK & FLY		Florida limited liability company

By:	/s/	By:	/s/
Name:		Name:	Name
Title:		Title:	Title