TERRABOOST GYM WIPES SUPPLEMENTAL TERMS & CONDITIONS

1. Applicability of These Terms. These Terraboost Gym Wipes Supplemental Terms & Conditions (“Supplemental Terms”) supplement each Wellness Station Placement and Advertising Agreement which references and incorporates these Supplemental Terms (each a “Gym Wipes Agreement”) and provide supplemental terms and conditions pursuant to which Terraboost will deliver and install hand sanitizing wipe Wellness Stations (each a “Kiosk” and collectively, the “Kiosks”), display advertisements on such Kiosks (“Advertisements” or “Advertising”), and supply hand sanitizing wipes (“Wipes”) (the preceding services collectively, the “Services”) to each Company facility listed on Exhibit “A” of Your Gym Wipes Agreement, as amended from time to time as agreed by the Parties (each a “Location” and collectively the “Locations”). Your Gym Wipes Agreement as supplemented by these Supplemental Terms contains the parties’ full and complete agreement and understanding with respect to the relationship between Terraboost and the Company identified in each Gym Wipes Agreement and Purchase Order of such Company. You understand and agree that either by executing a Gym Wipes Agreement or issuing a Purchase Order to Terraboost, Company accepts and is bound by the terms and conditions of the Gym Wipes Agreement as supplemented by these Supplemental Terms. Capitalized terms not defined in these Supplemental Terms shall have the meanings ascribed to them in the Gym Wipes Agreement. In the event of a conflict between the terms of a Gym Wipes Agreement and these Supplemental Terms, the Gym Wipes Agreement shall control. In the event of a conflict between the terms of a Purchase Order and these Supplemental Terms, these Supplemental Terms shall control.

2. Delivery and Installation of and Title to Dispensers/Kiosks. Each Kiosk shall be installed at an angle designed to maximize the potential for the viewing of advertisements affixed to the Kiosks. Company will be responsible to ensure that Terraboost and its personnel are provided with access to each Location to install the Kiosks during normal business hours and to provide any assistance reasonably requested by Terraboost in order to complete the installation and to remove any existing wipe fixtures to the back of the facility or for recycling. Company agrees that it will not move any Kiosk more than five (5) feet away from its initial installation location or otherwise change the viewing angle of a Kiosk without obtaining prior approval from Terraboost. Terraboost retains all right, title and interest in and to the Kiosks both during and after the term of these Supplemental Terms, including all intellectual property rights therein, and no such rights are granted or licensed to Company pursuant to these Supplemental Terms. Upon the deletion of a Location, Terraboost shall be entitled at its cost to take possession of and remove its Kiosks from such Location.

3. Grant of Rights. The rights granted by the Gym Wipes Agreement are as consideration for the delivery, installation and maintenance of the Kiosks and provision of Wipes at the prices stated herein by Terraboost and payment of all amounts due to Company hereunder.

4. Adequate Supply of Wipes. Terraboost will use commercially reasonable efforts to keep in stock such quantity of Wipes as it reasonably deems to be necessary (based on Company’s purchase history) in order to satisfy Company’s requirements hereunder.

5. Payments. Company authorizes Terraboost to charge the authorized payment method for all payments due with respect to these Supplemental Terms, including for any continuation or extension of the Agreement. If the payment method is a personal account, the account holder must certify that the account holder has authorized the use of the designated payment method for the payment of all such payments.

6. Cleaning Kiosks; Broken Kiosks. Upon receipt of such notice that a Kiosk is broken, damaged or defaced, Terraboost may, at its sole cost and discretion, repair or replace the Kiosk(s); provided, that any such replacement or repair shall be at Company’s expense if due to negligent act by or omission of Company (or any of its employees or other persons acting for or on behalf of Company) in violation of these Supplemental Terms. Terraboost acknowledges and agrees that the Kiosks will be subject to multiple uses daily and by multiple Company customers that impact normal wear and tear and related repairs shall not be construed as a negligent act or omission by Company.

7. Replacement of Kiosks. Company will provide Terraboost with prompt access to any Location during regular business hours as required for the purpose of replacing, updating, or replacing Kiosk(s). Neither Company nor any of its representatives will remove, discard, or alter any Kiosk without Terraboost prior written consent. If Kiosks are missing, discarded, or lost by a store, Terraboost reserves the right to deduct up to $200.00 per missing Kiosk from a future payment or charge Company for such amount.

8. Exclusive Rights. The exclusive rights granted to Terraboost by the Gym Wipes Agreement are as consideration for Terraboost provision of Kiosks, subsidized Wipes, and other Services as described in the Gym Wipes Agreement and these Supplemental Terms.

9. Access to Kiosks; Photos of Kiosks. Company agrees to provide Terraboost with unrestricted access to the Locations and the Kiosks during regular business hours to change advertising and take photos as proof of performance to provide to Terraboost’s advertisers and otherwise perform any of its obligations hereunder. Notwithstanding the foregoing, Terraboost’s unrestricted access shall not substantially interfere with the Company’s operations.

10. Advertising on Kiosks. Except as provided in the Gym Wipes Agreement, no advertising is subject to rejection, unless such advertising violates any applicable laws or regulations, becomes the subject matter of any claim or litigation, or violates, or alleges to violate, any intellectual property or contractual right of a third party. Advertising may at Terraboost's discretion integrate a variety of technologies, including, without limitation, NFC, Bluetooth, Beacons, QR codes, RSS feeds, video, touch -screen, facial recognition, sound, "skins", coupons, brochures, envelopes, battery-powered nameplates, or other collateral affixed to the Kiosk. Displays may send and receive data between Terraboost servers from time to time. Terraboost also reserves the right at its discretion to replace current Kiosk with new Kiosk which may include digital screen/digital signage and might require an electrical connection provided such electrical connection is installed at Terraboost expense.

11. Representations and Warranties. Terraboost represents and warrants to Company that (i) it is qualified to do business under the laws of each jurisdiction in which it is required by law to be so qualified, (ii) it has all of the power and authority to enter into and perform its obligations under these Supplemental Terms and that these Supplemental Terms is binding upon and enforceable against Terraboost in accordance with its terms, (iii) the Advertising, Kiosks, Sanitizer and Wipes will comply, in all material respects, with the laws in each jurisdiction where they are installed or used in the Locations, and that the Sanitizer and Wipes are fit for consumer use; (iv) its products or services, and the labeling thereof and advertising therefore, are in compliance, in all material respects, with all applicable federal, state, and local laws, regulations and requirements, (v) Terraboost has the legal right to place all Advertising and Kiosks referenced in these Supplemental Terms, and (vi) the use of the Kiosks will not and Terraboost will require each advertiser to certify that its advertisements will not violate any third party intellectual property rights, or be tortious in any manner whatsoever. Company represents and warrants to Terraboost that (i) Company is qualified to do business under the laws of each jurisdiction in which it is required by law to be so qualified, (ii) Company has all of the power and authority to enter into and perform its obligations under these Supplemental Terms and that these Supplemental Terms is binding upon and enforceable against Company in accordance with its terms and (iii) Company is the owner or tenant or subtenant of the premises of Location. In the event that a Location is leased or subleased to Company or is covered by a separate management, franchise or operating agreement and a third party's consent is required for the installation of the Kiosks, Company agrees and undertakes to promptly and timely seek and to use commercially reasonable efforts to obtain such consent and deliver such consent to Terraboost, it being understood and agreed that in the event that such consent is not able to obtained despite such commercially reasonable efforts, no Kiosks will be installed at such location (as such location is not a Location).

12. Warranty Disclaimer. WITH EXCEPTION TO THE WARRANTIES SPECIFIED IN SECTION 11, ABOVE, Terraboost MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE DISPLAYS, THE SANITIZER, THE WIPES, OR ANY OTHER Terraboost PRODUCT PROVIDED HEREUNDER, AND HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.

13. Insurance & Terraboost Indemnity. Terraboost has and will maintain general liability insurance with coverage in the amount of $1 million each occurrence and $2 million general aggregate, with maximum coverage of $10 million pursuant to umbrella coverage. Terraboost will cause Company to be named as a non-contributory additional insured under such policy. Terraboost will, at its expense, defend or, at its option, settle any third-party claim brought against Company, to the extent that it is based on a claim: (i) that Company’s use or possession of the Kiosks, wipes, or sanitizer (collectively, the “Terraboost Products”) provided to Company by Terraboost under these Supplemental Terms infringes any U.S. patent or copyright or misappropriates the trade secrets of any third party, or (ii) that the negligence or misconduct of Terraboost directly caused bodily injury, death, or damage to tangible property, and will pay all damages and costs (including reasonable legal fees) awarded by a court of final appeal attributable to such claim, provided that Company notifies Terraboost in writing of any such claim as soon as reasonably practicable and allows Terraboost to control, and reasonably cooperates with Terraboost in the defense of, any such claim and any related settlement negotiations. Notwithstanding the foregoing, Terraboost will have no liability for any claim which is based on (a) the modification of the Terraboost Products by a party other than Terraboost or its designee, (b) the use of the Terraboost Products other than in accordance with these Supplemental Terms or any applicable documentation; or (c) the gross negligence or willful misconduct of, or breach of these Supplemental Terms by, Company, its employees, contractors, or agents, including, without limitation, any failure to clean in and around the Kiosks as required by these Supplemental Terms (it being understood and agreed that Company shall indemnify and hold harmless Terraboost and its officers, employees, members, managers and affiliates from and against all losses, damages, liabilities, claims and expenses (including, without limitation, reasonable attorneys’ fees) due to or arising out of any of the actions, conditions, events or circumstances described in the preceding clauses (a), (b) or (c)). In the event that an injunction is sought or obtained against Company’s use of the Terraboost Products as a result of any such claim, in addition to Terraboost’s indemnification obligations hereunder, Terraboost may, at its option, do one of the following: (1) procure for Company the right to continue using the affected Terraboost Products; or (2) replace or modify the affected Terraboost Products so that they do not infringe. In the event that neither (1) nor (2) are commercially practicable, Terraboost may terminate these Supplemental Terms without liability. THE FOREGOING CONSTITUTES THE ENTIRE LIABILITY OF Terraboost, AND COMPANY’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

14. Waiver of Consequential Damages. WITH SPECIFIC EXCEPTION TO LIABILITY LIMITS DETAILED IN SECTION 13 HEREOF, IN NO EVENT WILL Terraboost OR THE COMPANY BE LIABLE TO COMPANY OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES ARISING OUT OF OR RELATING TO THESE SUPPLEMENTAL TERMS OR THE USE OR PERFORMANCE OF THE Terraboost PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES DUE TO LOSS OF BUSINESS, PROFITS, INCOME OR OTHER ECONOMIC ADVANTAGE, EVEN IF Terraboost HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.

15. Limitation of Liability. WITH SPECIFIC EXCEPTION TO THE WARRANTIES DETAILED HEREIN, Terraboost’S TOTAL LIABILITY UNDER THESE SUPPLEMENTAL TERMS, FROM ALL CAUSES OF ACTION AND THEORIES OF LIABILITY, WILL BE LIMITED TO DIRECT, REASONABLY FORESEEABLE DAMAGES AND SHALL NOT EXCEED THE GREATER OF: (I) THE AMOUNTS PAID BY INSURANCE CARRIED BY Terraboost UNDER THESE SUPPLEMENTAL TERMS OR (II) FIFTY THOUSAND DOLLARS ($50,000). THE PARTIES AGREE THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE SUPPLEMENTAL TERMS IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. EXCEPT AS STRICTLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY OTHER WARRANTY, EXPRESS OR IMPLIED WITH RESPECT TO ITS PRODUCTS AND SERVICES. EACH PARTY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES ARISING OUT OF OR RELATING TO THESE SUPPLEMENTAL TERMS INCLUDING, WITHOUT LIMITATION, DAMAGES DUE TO LOSS OF BUSINESS, PROFITS, INCOME OR OTHER ECONOMIC ADVANTAGE, EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. THE PARTIES AGREE THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE SUPPLEMENTAL TERMS IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.

16. Termination. The Gym Wipes Agreement may be terminated prior to expiration i) at any time upon the mutual written consent of the parties or ii) upon the occurrence of a default by either party which is uncured within thirty (30) days after notice of default is received by the defaulting party. Upon expiration or termination of the Gym Wipes Agreement for any reason: (a) Terraboost will have the right (but not the obligation) to enter the Locations during normal business hours for the purpose of removing any Kiosks; (b) Company will return all copies of Terraboost Confidential Information (as defined below) to Terraboost, and certify its compliance with the foregoing; (c) any amounts due to each Party will become immediately due and payable; and (d) at Terraboost’s option, Advertisements sold by Terraboost which extend beyond the expiration or termination of these Supplemental Terms for any reason shall not be impacted by the expiration or termination of these Supplemental Terms and shall remain on the Kiosks until the earlier of i) six (6) months after such termination or expiration or ii) expiration of the applicable Advertising term. Notwithstanding the foregoing, the continued display of Advertisements will not require Company to continue its purchases of Sanitizer and Wipes from Terraboost, but Company will keep each Kiosk supplied with Wipes during such period. The provisions of the Gym Wipes Agreement and these Supplemental Terms which by their terms are intended to survive the expiration or termination of the Gym Wipes Agreement including, without limitation, Company’s confidentiality obligations and the limitations of liability, shall so survive in accordance with their terms.

17. Entire Agreement; Waiver; Remedies Cumulative. The Gym Wipes Agreement and these Supplemental Terms and their exhibits constitute the sole and entire agreement between the parties related to its subject matter and supersedes any other prior or contemporaneous understandings, whether oral or written, between the parties with respect to its subject matter. The Gym Wipes Agreement and these Supplemental Terms may be amended or modified, and provisions waived, only by a writing signed by both parties in the case of an amendment or the waiving party in the case of a waiver. No delay on the part of either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any waiver on the part of any Party of any such right, power or privilege, nor any single or partial exercise of any such right, power or privilege, preclude any further exercise thereof or the exercise of any other such right, power or privilege. Except as otherwise provided herein, the rights and remedies herein provided are cumulative and are not exclusive of any rights or remedies that either Party may otherwise have at law or in equity. The waiver of a breach of any provision of the Gym Wipes Agreement or these Supplemental Terms will not operate or be interpreted as a waiver of any other or subsequent breach.
18. Assignment. Company may not assign these Supplemental Terms, by operation of law or otherwise, without the prior written consent of Terraboost, which consent will not be unreasonably withheld or delayed. Terraboost may assign its rights hereunder and/or grant a security interest in or transfer title to the Kiosks to third parties, in whole or in part, without notice to or the consent of Company, and Terraboost’s assignee or secured party may reassign such rights and/or security interests without notice to or the consent of Company. These Supplemental Terms shall be binding upon, and shall inure to the benefit of, each Party’s successors and permitted assigns.

19. Publicity. As the existence of the relationship between Company and Terraboost is of significant marketing value to the parties, during the term of these Supplemental Terms, each party will be entitled to announce publicly its relationship with the other party and to publish references to that relationship, provided that each party will seek prior approval of each such announcement from the other party, which approval shall not be unreasonably withheld, conditioned, denied, or delayed.

20. Confidential Information. Company understands that (i) the specific terms and pricing set forth in this Agreement, and (ii) all other non-public business or technical information of TBM to which Company has access during the term of this Agreement (or to which Company was given access prior to the term of this Agreement) will be considered TBM’s Confidential Information (collectively, the “Confidential Information”). Company agrees not to use the Confidential Information except as necessary for its performance of this Agreement, and will not disclose such Confidential Information to any third party, except to those of Company’ employees or contractors that need to know such Confidential Information for the purpose of performing this Agreement, and provided that each such employee or contractor is subject to a written agreement or similar binding obligation that includes use and disclosure restrictions that are at least as protective as those set forth herein. Company will maintain in strict confidence all Confidential Information in its possession or control and will return to TBM or destroy, with written notice of destruction delivered to TBM, all Confidential Information in its possession or control upon the expiration or termination of this Agreement. Company’s confidentiality obligations hereunder shall survive the expiration or termination of this Agreement and the return or destruction of the Confidential Information. Company acknowledges that money damages would be inadequate to remedy any breach of this Agreement and, accordingly, TBM shall be entitled to injunctive relief in connection with any breach or threatened breach of this Section.

21. Intellectual Property Rights. Each Party agrees that it will not utilize any proprietary mark or intellectual property of the other Party in any manner without first obtaining the prior written consent of the other Party, and if such prior written consent is obtained, shall only use the proprietary mark in the manner specifically permitted by the other Party. Company shall not have any right, title and interest or ownership of the third-party advertising material on the Kiosks. Company shall not use or reproduce or permit the use or reproduction (director indirect), of the Advertising material in any manner except as provided by these Supplemental Terms.

22. Force Majeure. In the event of an inability or failure by either Party to deliver any products or perform any services or otherwise perform any of its obligations hereunder by reason of any fire, explosion, war, riot, strike, walkout, labor controversy, flood, shortage of water, power, labor, transportation facilities or necessary materials or supplies, default or failure of carriers, breakdown in or the loss of production or anticipated production from plant or equipment, act of God or public enemy, any law, act or order of any court, board, government or other authority of competent jurisdiction, public health pandemic (provided such public health pandemic actually prevents a Party from performing its Services hereunder) or crises (whether regional, national or international), or any other cause beyond the reasonable control of the Parties (collectively, “Force Majeure Events”), then the affected Party shall not be liable to the other Party or obligated to perform its applicable obligations hereunder during the period and to the extent of such inability or failure; however, the affected Party’s obligations shall re-commence promptly following the end of the applicable Force Majeure Event.

23. Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be deemed effective if delivered by recognized overnight courier, telecopy (with confirmation of transmission) or mail (by registered or certified mail, postage prepaid) or email with confirmation receipt. Notices shall be deemed given upon the earlier of: (i) the actual delivery of the notice to the receiving Party and (ii) three (3) business days after mailing to the receiving Party at its address set forth in the Gym Wipes Agreement. Any Party, by notice given to the other Party in accordance with this Section, may designate another address or person for receipt of notices hereunder. Notices by either Party may be given by counsel of the Party giving notice.

24. Governing Law. The Gym Wipes Agreement and these Supplemental Terms will be construed in accordance with the laws of the state of Wyoming excluding its conflict of laws principal. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Supplemental Terms. Except as otherwise expressly provided herein, all rights and remedies of a party hereunder will be cumulative and may be exercised singly or concurrently.

25. Binding Effect. The Gym Wipes Agreement and these Supplemental Terms and all of their provisions, rights and obligations shall be binding upon and shall inure to the benefit of the Parties and their respective successors, assignees, heirs and legal representatives. No provision of the Gym Wipes Agreement and these Supplemental Terms Supplemental Terms, whether express or implied, is intended to be or shall be construed to confer upon or to give anyone other than the Parties and their respective heirs, legal representatives and successors, any rights or benefits under or by reason of the Gym Wipes Agreement and these Supplemental Terms, and no other party shall have any right to enforce any of the provisions of the Gym Wipes Agreement and these Supplemental Terms.

26. Jurisdiction; Venue. Each of the Parties agrees to submit voluntarily to, and irrevocably consents to the exclusive jurisdiction of the State and Federal courts located in Laramie County, Wyoming and agrees to waive and agree not to assert any defense of lack of personal jurisdiction, improper venue or forum non conveniens.
27. Severability. If any provision of the Gym Wipes Agreement and these Supplemental Terms is held unenforceable by a court of competent jurisdiction, such provision will be deemed modified so as to reflect, to the extent possible, the intent of the parties, and will in no way affect or impair the enforceability of the remaining provisions of the Gym Wipes Agreement and these Supplemental Terms. No provision of the Gym Wipes Agreement and these Supplemental Terms shall be interpreted adversely to a Party because that Party drafted any portion of the wording of the provision.

28. Interpretation. Unless the context otherwise requires, the terms used in the Gym Wipes Agreement and these Supplemental Terms shall have the meanings herein specified for all purposes of the Gym Wipes Agreement and these Supplemental Terms, applicable to both the singular and plural forms of any of the terms defined herein. When a reference is made in the Gym Wipes Agreement or these Supplemental Terms to Sections, such reference shall be to a Section of these Supplemental Terms unless otherwise indicated. The headings contained in the Gym Wipes Agreement and these Supplemental Terms are for reference purposes only and shall not affect in any way the meaning or interpretation of the Agreement. Whenever the words “include”, “includes” or “including” are used in the Gym Wipes Agreement or these Supplemental Terms, they shall be deemed to be followed by the words “without limitation”.

29. Miscellaneous. The Parties to these Supplemental Terms are independent contractors. Terraboost may engage third parties in the performance of any of Terraboost obligations hereunder, provided that Terraboost will remain ultimately responsible for the performance of such obligations.