Marketing And Advertising Agreement ( Volvo )

EXHIBIT 10.40





MARKETING AND ADVERTISING AGREEMENT



THIS MARKETING AND ADVERTISING AGREEMENT (this "Agreement") is entered into this 26th day of April, 1999, by and between Park 'N View, Inc., a Delaware corporation ("PNV"), with its headquarters at 11711 NW 39th Street, Coral Springs, Florida 33065 and Volvo Trucks North America, Inc., a Delaware corporation ("Volvo"), with its headquarters at 7825 National Service Road, Greensboro, NC 27409.



WHEREAS, PNV has designed and developed the concept and equipment ("the System") to provide certain telecommunications, data transmission and cable TV and other services (the "Television and Telecommunications Services") and is in the process of developing Internet access services (together with the Television and Telecommunications Services, the "Services") at truckstops with which PNV has (or from time to time will have) entered into contracts (the "Truckstops"); and



WHEREAS, Volvo desires to promote Volvo Products and the products of certain third parties which Volvo and PNV shall mutually agree upon (including Cummins engine products) (collectively, "Volvo Products") to PNV customers by marketing the Volvo Products to PNV customers and PNV desires to promote its Services to Volvo customers by marketing the Services to Volvo customers.



NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, Volvo and PNV (hereinafter collectively being referred to as the "Parties"), intending to be legally bound, hereby mutually agree as follows:



1. Volvo Advertising.



(a) Broadcast Advertising.



(i) PNV hereby agrees to broadcast on its television DEN channel (the "DEN Channel") certain advertisements for the Volvo Products (the "Volvo Ads") which shall be supplied by Volvo to PNV at Volvo's sole expense and shall be the sole property of Volvo, provided that PNV shall not broadcast Volvo Ads for third party products if the broadcast of such Volvo Ads would violate broadcast exclusivity rights PNV has granted or grants to other persons. If PNV deems the Volvo Ads to be in poor taste or otherwise unsuitable for broadcast on the DEN Channel, PNV shall inform Volvo and thereafter PNV and Volvo shall cooperate to revise the content of the Volvo Ads so that the Volvo Ads are suitable for broadcast on the DEN Channel. The terms "Volvo Products" and "Volvo Ads" shall include ads for products or services placed by subsidiaries and affiliates (both wholly-owned and partially-owned) of Volvo.



(ii) During each two (2) hour loop of taped video broadcast transmitted on the DEN Channel by PNV, PNV agrees to broadcast up to thirty-three minuets of Volvo Ads









which shall be provided by Volvo in its sole discretion; provided that, during the first year of the Term (as defined below), if PNV shall increase the length of the loop of taped video broadcast, it shall play such additional Volvo Ads that Volvo shall provide to PNV such that for every additional fifteen (15) minutes of taped video broadcast, PNV shall play four (4) additional minutes of Volvo Ads.



(iii) During the first year of the Term, PNV shall not accept advertising or enter into any agreement to advertise products or services of Volvo's competitors, defined as any other manufacturer of class 4-8 trucks, on the DEN Channel. Thereafter, unless the Parties agree to extend this period of exclusivity as provided in (iv) below, PNV may allow any person, corporation, partnership or other entity in any trade category to advertise on the DEN Channel.



(iv) Subject to Section 3, Volvo may elect to extend the period of exclusivity through the second year of the Term, provided that Volvo gives written notice to PNV of such election ninety (90) days prior to the first anniversary of the date upon which this Agreement commences. If Volvo elects to extend its period of exclusivity, its exclusive right to place banner advertisements on PNV's Website (as defined below), as provided in subsection (c) shall be likewise extended through the second year of the Term



(b) PNV Connections Magazine Advertising.



(i) During the Term, PNV hereby agrees to place in PNV Connections Magazine, a monthly periodical published by PNV, the following advertisements: (i) One (1) full-page advertisement for Volvo Products on the back cover of PNV Connections Magazine; (ii) one (1) full page advertisement to be placed inside PNV Connections Magazine; and (iii) four (4) advertisements sized one-quarter of one magazine page to be placed in the program guide section of PNV Connections Magazine (collectively, the "PNV Magazine Ads"). Except as provided above, the placement of the PNV Magazine Ads in PNV Connections Magazine shall be determined by the staff of PNV Connections Magazine. Volvo's right to advertise Volvo Products in PNV Connections Magazine shall not be exclusive. PNV shall not publish Volvo-placed advertisements for third-party products in PNV Connections Magazine if the placement of such advertisements would violate exclusivity rights PNV has granted or grants to other persons.



(ii) Volvo shall supply the PNV Magazine Ads in camera-ready form to PNV at Volvo's sole expense and the PNV Magazine Ads shall be the sole property of Volvo. If PNV deems the PNV Magazine Ads to be in poor taste or otherwise unsuitable for publication in PNV Connections Magazine, PNV shall inform Volvo and thereafter PNV and Volvo shall cooperate to revise the content of the PNV Magazine Ads so that the PNV Magazine Ads are suitable for publication in PNV Connections Magazine.











(c) Internet Advertising.



(i) PNV will provide banner space on pages of PNV's World Wide Web site, www.ParkNView.com (the "PNV Website"), to Volvo for the Volvo Products, provided that PNV shall not place advertisements on the PNV Website for Volvo Products which are third party products if the placement of such advertisements would violate exclusivity rights PNV has granted or grants to other persons. The Volvo banner advertising shall appear on the top half of the home page of PNV. Volvo may revise the content of the banner advertising at any time, provided that it does not revise the banner more than one (1) time per month.



(ii) During the first year of the Term, Volvo shall be the only advertiser of Class 4 through 8 trucks on the top half of the above the fold space on PNV's home page (i.e., the page located at the internet address www.ParkNView.com). Thereafter, unless the Parties agree to extend the period of exclusivity as provided in subsection (a) above, PNV may allow any person, corporation, partnership or other entity in any trade category to place banner advertisements on PNV's home page or otherwise on the PNV Website. Except as set forth in this subsection(c), PNV shall have the right to allow any person, corporation, partnership or other entity in any trade category to advertise anywhere on PNV's Website.



(d) Voice Response Unit Advertising.



(i) At Volvo's option, PNV will include ten (10) second spots on the messages PNV plays on its voice response unit ("VRU") which promote the Volvo Ads on the DEN Channel. Such spots shall be included on any truck driver's VRU messages no more than two (2) times per month.



2. Marketing PNV Services.



(a) Volvo may purchase twelve (12) month memberships for the Services for resale to Volvo customers which shall consist of the level of services set forth on Schedule A hereto. Volvo shall pay a fee of $15 per month for each such membership, which shall be payable monthly in arrears on or prior to the tenth day of the next succeeding month.



(b) If a Volvo customer is in breach of its agreement with Volvo, Volvo may terminate such customer's membership at any time. Volvo shall provide PNV five (5) days prior written notice that it intends to terminate such customer's membership. Upon such termination, Volvo shall be relieved ...