EXHIBIT 10.2
SPRINTICKET EQUIPMENT PURCHASE, CREDIT CARD AUTHORIZATION,
AND TRANSACTION PROCESSING AGREEMENT
THIS Equipment Purchase, Credit Card Authorization and Transaction Processing
Agreement (hereinafter referred to as this "Agreement" is entered into,
effective this 28th day of September, 1998, between Sprinticket, a Division of
The Pathways Group, Inc., a Delaware Corporation (hereinafter referred to as
"Sprinticket") and Winter Park Resort, a Colorado (Non-Profit) Corporation, of
000 Xxxxxx Xxxx Xx., Xxxxxx Xxxx, Xxxxxxxx 00000 (hereinafter referred to as
"Customer.")
ARTICLE 1. RECITALS
The following recitals of fact are agreed to by the respective parties to be the
facts based upon which each made the decision to make this Agreement:
A. WHEREAS, Customer owns and operates a business under the name Winter
Park Resort, located in Winter Park, Colorado, for which Customer
sells tickets, vouchers, or goods, hereinafter referred to separately
or collectively as "Goods" to its clients from among the general
public; and
B. WHEREAS, Sprinticket has developed and owns the proprietary interest
in certain computer software, which is combined into a system briefly
described as:
(1) Automatic Goods dispensers (hereinafter referred to as
"Dispensers") which can automatically
print tickets or vouchers and dispense Goods; and
(2) Which are activated by use of any smart card, credit card, debit
card or proprietary card listed in Schedule D below (hereinafter
referred to separately or collectively as a "Card"); and
(3) Which are controlled by a computer hardware and software system
(hereinafter referred to as the "Sprinticket Automated Ticketing
System").
C. WHEREAS, the Sprinticket Automated Ticketing System operates as
follows:
(1) The Sprinticket Automated Ticketing System processes specific
Card information and specific proposed transaction information
which the Card user has input to the Dispenser.
(2) The processing is done by automatic access to the Card database
maintained by the acquiring processor. If the proposed
transaction is authorized by the acquiring processor, then (1)
the Dispenser automatically dispenses the Goods to the Card user
and (2) the Dispenser automatically records the completed
transaction.
(3) Sprinticket, on at least a daily basis, downloads batches of
completed transactions from the Dispensers and automatically
forwards the batches of completed transactions to the acquiring
processor for settlement.
(4) The acquiring processor causes the settled transaction amounts to
be deposited to Customer's bank account.
(5) Both Sprinticket and Customer can independently download
transaction data from the Dispensers by electronic means at any
time. Customer does this through the Manager Work Station
provided pursuant to this Agreement.
(6) Sprinticket prepares and submits to Customer weekly invoices for
the prior week. In these invoices, Sprinticket's service fees
pursuant to Section 4.02 below and the attached Schedule D
(hereinafter referred to as "Service Fees") are calculated from
summaries of the prior week's completed transactions; and
D. WHEREAS, Sprinticket has developed and/or markets various models of
Dispensers and other equipment required to implement the Sprinticket
Automated Ticketing System; and
E. WHEREAS, Customer has evaluated and accepted the proposal from
Sprinticket based on the system described in Paragraphs B and C
above, with Schedules A, B, C, and D, attached hereto and
incorporated herein by reference for all purposes mentioned in this
Agreement; and
F. WHEREAS, both parties desire to state the provisions of this
arrangement in a written Agreement; NOW THEREFORE, THE PARTIES AGREE
AS FOLLOWS:
ARTICLE 2. PURCHASE OF EQUIPMENT
Section 2.01 Agreement to Purchase.
Customer agrees to purchase from Sprinticket and Sprinticket agrees
to sell to Customer the equipment listed on Schedule A (hereinafter
referred to collectively or separately as "Equipment").
Section 2.02 Purchase Price.
The purchase price for each item of Equipment shall be as specified
on Schedule A.
Section 2.03 Site Preparation.
Prior to the installation of the Equipment, Customer shall prepare
the installation site so as to comply with Sprinticket's installation
requirements and procedures as specified in Schedule B.
Section 2.04 Responsibility for Installation.
A. Customer warrants that it controls and has a right to install the
Equipment on the site(s) selected and specified by Customer as stated
in Schedule B. Customer shall be responsible to arrange
(1) access to necessary electrical, telephone, and other equipment
and facilities,
(2) the presence of any necessary electrical or telephone utility
personnel, and
(3) the presence of any necessary Customer personnel.
B. Sprinticket may, at its option, xxxx Customer for time spent by
Sprinticket staff waiting on Customer site as a result of the lack or
failure of such arrangements, at the rate set forth in Table 2 of
Schedule C. Customer may, at its option, xxxx Sprinticket for
Customer's actual cost for any time lost by Customer staff waiting on
Customer site due to the late arrival or non-arrival of Sprinticket
staff; however Customer shall make best efforts to minimize such
costs by returning its staff to their customary duties as soon as
possible.
C. Sprinticket shall install the Equipment and perform initial standard
test procedures to assure that the Equipment will operate initially
as intended within the Sprinticket Automated Ticketing System.
Section 2.05 Warranty of Title.
Sprinticket warrants that it has good title to the Equipment and the
right to sell it to Customer free of any proprietary rights of any
other party except for software owned by the Equipment manufacturer
and imbedded by the Equipment manufacturer or installed by
Sprinticket, which software is licensed to Customer pursuant to the
non exclusive limited license set forth in Article 3 of this
Agreement.
Section 2.06 Limited Warranty.
The Equipment furnished hereunder is warranted to be free from
defects in materials and workmanship for a warranty period of 365
days from the date of installation by Sprinticket on Customer's site.
Section 2.07 Warranty Service.
A. Sprinticket shall, at its own expense and option, either repair or
replace defective Equipment during the warranty period, provided that
Customer has notified Sprinticket and Sprinticket has determined that
the Equipment is defective. Repair or replacement of defective
Equipment may, at Sprinticket's option, be accomplished either by
Sprinticket personnel on Customer's site or on a Hot Swap basis as
defined in Paragraph 3 of the attached Schedule C.
B. Customer's sole and exclusive remedy hereunder shall be limited to
the repair or replacement specified herein.
Section 2.08 Warranty Service Charges.
Acknowledging that Customer's peak business occurs on weekends and
holidays, Sprinticket agrees to waive its customary weekend and
holiday surcharges for warranty service provided pursuant to Section
2.07 above.
Section 2.09 Warranty Conditions.
THE FOREGOING WARRANTIES ARE CONTINGENT UPON THE PROPER USE OF THE
EQUIPMENT IN ACCORDANCE WITH THE INSTRUCTIONS AND SPECIFICATIONS
PUBLISHED BY SPRINTICKET AND MAY NOT APPLY TO ANY EQUIPMENT THAT HAS
BEEN REPAIRED OR MODIFIED BY PERSONS OTHER THAN SPRINTICKET.
Section 2.10 Warranty Disclaimer.
THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION,
ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
Section 2.11 Title.
Title to the Equipment shall pass to Customer on the date Sprinticket
receives the full balance due on the Equipment purchase, pursuant to
Subparagraph A of Section 5.03.
Section 2.12 Risk of Loss.
Prior to the date of delivery to Customer's site(s), the risk of loss
to the Equipment shall be on Sprinticket. The risk of loss shall pass
to Customer on the date of delivery to Customer's site(s).
ARTICLE 3. SOFTWARE LICENSE
Section 3.01 Ownership of Software.
Customer acknowledges and agrees that the various parts of the
software are proprietary to and owned by, respectively, the Equipment
manufacturer to the extent any software is imbedded in the Equipment;
the Equipment manufacturer, with respect to certain written
instructions for the Equipment and embedded software; Sprinticket, to
the extent that any software is installed on the Equipment; and
Sprinticket, with respect to all written instructions
concerning the use or operation of the Sprinticket Automated
Ticketing System. The above described software and written
instructions are hereinafter referred to collectively or separately
as the "Software."
Section 3.02 Agreement to License.
Sprinticket agrees to grant and Customer agrees to accept a license
to use the Software subject to the provisions of Sections 3.03, 3.04,
3.05, and 3.06 below.
Section 3.03 Scope And Limitations of License.
A. Customer promises and agrees that each item of the Software,
including any subsequent updates provided hereunder, is furnished to
Customer under a nontransferable, nonexclusive license subject to the
limitations that Customer shall use the Software:
(1) only with the Equipment and at the site(s) shown on Schedule B,
and
(2) only for the Equipment in which it is imbedded or installed, and
(3) only while the provisions of Article 4 of this Agreement are in
effect, and
(4) only for the purpose of participation in the Sprinticket
Automated Ticketing System described in this Agreement.
B. Customer understands and agrees that all copies of the Software, in
whole or in part, including all updates, are the property of each
respective owner identified in Section 3.01 above, and no title to or
ownership of the Software, or any parts thereof is transferred to
Customer under this Agreement.
Section 3.04 Confidentiality; Agreement Not To Copy Or Reverse Engineer.
A. Customer agrees not to provide, disclose, or make available any
Software or any part thereof to any third party without the prior
written consent of Sprinticket and the party which owns the
particular Software. Customer further agrees not to copy the Software
or reverse engineer or attempt to reverse engineer the Software, or
permit anyone else to copy or reverse or attempt to reverse engineer
the Software.
B. Violation of the provisions of Paragraph A of this Section shall not
be an event of default if compelled by subpoena or other legal
process and Customer has complied with the provisions of Paragraph B
of Section 5.25 below.
Section 3.05 License Period.
This license shall be effective from the date on which this Agreement
is signed by Sprinticket and shall remain in effect until the date
this Agreement is terminated by Customer pursuant to Section 5.13 or
by Sprinticket pursuant to Section 5.11. Upon termination of this
Agreement, whether by Customer or by Sprinticket , Customer shall
destroy or return the Software to Sprinticket pursuant to the
provisions of Section 3.06 below.
Section 3.06 Repossession of Software.
A. Upon expiration of the Software license, whether at the end of its
term pursuant to Section 3.05 above, or as a result of termination of
this Agreement pursuant to Sections Section 5.11 or Section 5.13
below, the original and all copies of the Software shall be returned
to Sprinticket or destroyed. Customer shall, at Sprinticket's option,
do either or both of the following:
(1) Certify in writing to Sprinticket that, to the best of Customer's
knowledge, the original and all copies of the Software have been
returned to Sprinticket or destroyed, to the extent that return
or destruction is possible without damage to any Equipment in
which the Software may be imbedded.
(2) Allow Sprinticket to remove the original and all copies of the
Software from Customer's premises, including from any Equipment
in which it may be imbedded or installed, to the extent that
removal is possible without damage to such Equipment.
Section 3.07 Warranty of Title And Right to License Software.
Sprinticket warrants that it has good title to the Software and the
right to license its use to Customer free of any proprietary rights
of any other party or any other encumbrance whatever. Sprinticket
makes no warranty whatever with respect to any materials which may be
furnished by Customer, including but not limited to designs, plans,
specifications, images, text, and computer programs.
Section 3.08 Limited Software Warranty.
A. The Software is warranted to conform to Sprinticket's published
functional specifications. ANY MODIFICATION OF THE SOFTWARE BY ANY
PERSONS OTHER THAN SPRINTICKET SHALL VOID THIS WARRANTY.
B. During a period of 365 days after delivery of the Equipment with
imbedded and installed Software to Customer, Sprinticket shall, at
its own expense, correct Software defects that cause the Software to
fail to conform to Sprinticket's published functional specifications
and that significantly affect its performance in accordance with
those specifications, provided that Customer has notified Sprinticket
of any such defects and, upon inspection, Sprinticket has found the
Software to be nonconforming. Customer agrees that Customer's sole
and exclusive remedy under this Agreement shall be limited to that
corrective action.
Section 3.09 Warranty Disclaimer.
THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
ARTICLE 4. CARD AUTHORIZATION AND TRANSACTION PROCESSING
Section 4.01 Collection of Funds Processed By the Sprinticket Automated
Ticketing System.
Only those Cards listed on Schedule D below may be
used with the Sprinticket Automated Ticketing System. Sprinticket
will set up all necessary arrangements with the acquiring processor
to have the funds from all completed transactions approved by the
acquiring processor deposited in an account controlled by Customer.
Section 4.02 Calculation of Service Fees.
A. Sprinticket shall prepare weekly invoices for its Service Fees by
Friday of each week for the preceding seven day week of Monday
through Sunday, inclusive. Each weekly invoice for Service Fees will
summarize all completed transactions which occurred during the
preceding seven day week period. The Service Fees for performing
Sprinticket's services pursuant to this Agreement shall be calculated
as follows:
(1) Sprinticket shall be entitled to Service Fees at the rates stated
in Schedule D.
(2) Calculations of any Service Fees owed to Sprinticket, based on
Schedule D, will be included in each weekly invoice, as provided
in Section 4.01 above, and will be based on the completed
transactions reported in that weekly invoice.
Section 4.03 Payment of Fees To Sprinticket.
Customer shall remit the Service Fees detailed on each weekly invoice
to Sprinticket by mail by the end of the week in which the invoice is
received.
Section 4.04 Chargebacks.
Sprinticket will make all reasonable efforts within its power to
provide information necessary to dispute chargebacks. However,
Sprinticket shall have no financial responsibility for any
chargebacks.
ARTICLE 5. GENERAL TERMS AND CONDITIONS
Section 5.01 Applicability.
The general terms and conditions contained in this Article shall
apply to any Equipment sold and Software licensed (hereinafter
collectively referred to as "Products") and services furnished to
Customer pursuant to this Agreement.
Section 5.02 Acceptance.
Subject to the provisions of Article 2, successful completion of
Sprinticket's standard test procedures on Products installed by
Sprinticket, including replacement, substitute, added, or
field-modified Products installed after acceptance of initially
installed Products, and the execution of a report form verifying such
successful test completion by representatives of Customer and
Sprinticket shall be sufficient to establish acceptance of Products.
Section 5.03 Payment For Products.
A. Unless otherwise agreed in writing, Customer agrees to pay thirty
percent (30%) of the total price for all Products as listed and shown
on Schedule A, at the time this Agreement is signed, and the balance
of the total price upon completion of installation and testing of
Products pursuant to Sections 2.04 and 5.02 above. Sprinticket shall
issue invoices for balance(s) due on or after the date of
installation of Products.
B. On the occurrence of any of the events of default listed in
Subparagraphs A(1) through A(6) of Section 5.10, Sprinticket may, in
addition to all other remedies it may have at law or in equity, make
a written demand for full or partial payment in advance, suspend
performance until that payment is made, or cancel Customer's order.
C. If Customer fails to pay any charges when due and payable, Customer
agrees that Sprinticket shall have the right to invoice and Customer
shall pay all costs, including reasonable attorneys' fees, expended
in collecting overdue charges and a late payment charge of one and
one-half percent per month but not in excess of the lawful maximum on
the unpaid balance.
Section 5.04 Taxes.
All of the prices and license fees provided for by this Agreement are
exclusive of all federal, state, municipal, or other political
subdivision taxes, including but not limited to excise, sales, use,
property, or like taxes now in force or enacted in the future and all
prices and license fees are therefore subject to increase equal to
any such taxes Sprinticket may be required to collect from Customer
upon the sale or delivery of the Products or services purchased or
licensed hereunder. This section shall not apply to taxes based on
Sprinticket's income.
Section 5.05 No Partnership or Joint Venture or Agency.
The parties acknowledge that no partnership or joint venture or
agency is intended or created with respect to this Agreement, each
other or the Software or the Equipment. Unless otherwise explicitly
provided thereunder, nothing herein shall be construed or interpreted
as appointing Sprinticket or Customer as an agent or representative
of the other and neither Sprinticket nor Customer shall have any
authority whatsoever to act for, or incur, any liability or
obligation on behalf of the other. Customer and Sprinticket shall
take such steps as are reasonably necessary in dealing with third
parties to negate any inference that a partnership or joint venture
or agency exists.
Section 5.06 Defense Against Infringement Claims.
A. Customer agrees to notify Sprinticket immediately, without any delay,
of any action or claim alleging that the Products or Customer's use
of the Products violates the trade secret, trademark, copyright,
patent, or other proprietary rights of any other party, and further
agrees to cooperate with Sprinticket in the investigation and
resolution thereof.
B. If Sprinticket is so notified, Sprinticket shall defend Customer
against any and all such claims at its expense and shall pay any
costs and damages awarded therein; provided that Sprinticket shall
have sole control of the defense of any such action and all
negotiations for its settlement or compromise.
C. Subject to the limitations in Sections 5.07, 5.13, and 5.15 of this
Agreement, Sprinticket shall indemnify and hold Customer harmless
from any liability damage, costs, or other loss incurred by Customer
in connection with such claims.
D. Sprinticket shall not indemnify Customer against any claim, costs, or
liability based on Customer's modification or conversion of the
Equipment or Software and/or the subsequent use of that modification
or conversion. Sprinticket shall not have any liability to Customer
if the infringement or violation, or the claim thereof, is based upon
the use of Products in combination with other equipment or software
not provided by Sprinticket pursuant to Schedule A.
E. At any time during the course of any litigation arising out of a
claim that a Product infringes a patent or copyright or other
proprietary right, or, if in Sprinticket's opinion, a Product is
likely to become the subject of such a claim, Sprinticket may, at its
option and expense, either procure for Customer the right to continue
using the Product, replace or modify the Product so that it becomes
non-infringing, or grant Customer a credit or cash refund for the
Product as depreciated and accept its return. The depreciation shall
be an equal amount per year over the lifetime of the Product as
established by Sprinticket.
Section 5.07 Customer's Hold Harmless Agreement.
A. Customer shall indemnify, hold harmless and defend Sprinticket from
any claims by any third person(s) against Sprinticket arising out of
or based on any allegation that:
(1) Any patent, copyright, trademark, right of publicity, or right of
privacy was infringed or violated by Sprinticket's use of
designs, plans and specifications, images, text, or computer
programs furnished by Customer; or
(2) Any third person was harmed by the use of, or the presence of,
the Equipment on the sites and locations provided for in this
Agreement, or any other site or location to which the Equipment
may be moved or on which it may be located by or at the direction
and request of Customer. The claims which this Subparagraph shall
be deemed to include, but not limited to, are any personal injury
claims, any property damage claims, any wrongful death claims and
any trespass claims; provided, however, that Customer shall not
be held responsible for indemnity, hold harmless and defense
pursuant to this Subparagraph, if (1) Sprinticket is proven in
court to have been grossly negligent in causing the claims, and
such gross negligence is the primary cause of the harm for which
the claim is brought, or (2) the claim arises from a defect in
the design, manufacture or assembly of the internal electrical
components of the Equipment or from the process of installing the
Equipment.
B. No costs or expenses shall be incurred for or on behalf of
Sprinticket without Sprinticket's prior written consent.
Section 5.08 Confidentiality of Materials.
Except as otherwise provided in this Agreement, Customer agrees to
maintain in confidence and not to disclose, reproduce, or copy any
materials, data, documentation, or specifications that are provided
by Sprinticket pursuant to this Agreement and which are copyrighted,
patented, trademarked, or otherwise marked as confidential, secret,
or proprietary. Not withstanding the foregoing, Customer may make
copies of print materials as needed for training and maintenance
purposes, provided the copies are distributed only to Customer's
employees and provided the copies are destroyed on expiration or
termination of this Agreement.
Section 5.09 Support Services.
A. "Support Services" include assistance in implementation planning,
systems analysis and design, installation, evaluation, training of
Customer personnel, repair and maintenance of Equipment and Software,
and provision of parts and spares.
B. Customer shall be entitled to Support Services for Products provided
pursuant to this Agreement, subject to the limitations stated in
Schedule C, which lists both those Support Services which are to be
provided at no charge and those which are to be provided at hourly or
per item charges, including any minimum charges which may apply.
C. Provision of Support Services is subject to Customer's responsibility
to arrange (1) access to necessary electrical, telephone, and other
equipment and facilities, (2) the presence of any necessary
electrical or telephone utility personnel, and (3) the presence of
any necessary Customer personnel. Sprinticket may at its option xxxx
Customer, at the rate set forth in Table 2 of Schedule C, for time
spent by Sprinticket staff waiting on Customer site as a result of
the lack or failure of such arrangements.
Section 5.10 Default by Customer.
A. Any of the following shall constitute events of default if not
remedied by Customer within thirty days following receipt of written
notice, as provided in Section 5.17 below:
(1) Customer's failure to make financial arrangements satisfactory to
Sprinticket for the purchase of Products or services;
(2) Customer's failure or neglect to perform or observe any of its
existing or future obligations under this Agreement, including,
without limitation, the timely payment of any sums due
Sprinticket;
(3) Any assignment of Customer's business for the benefit of
creditors;
(4) The filing of a petition in bankruptcy by or against Customer;
(5) The appointment of a receiver, trustee in bankruptcy, or similar
officer to take charge of all or part of Customer's property;
(6) The adjudication of Customer as a bankrupt or insolvent;
(7) Customer's violation of any of the Software licensing provisions
stated in Article 3 of this Agreement.
Section 5.11 Sprinticket's Remedies.
In the event of Customer's default pursuant to Section 5.10 above,
Sprinticket shall have the right, at its option, to terminate this
Agreement, to suspend part or all of its performance under this
Agreement, and/or to bring a claim for damages. No remedy of
Sprinticket pursuant to this Paragraph shall be exclusive of any
other remedy it has, whether under this Agreement or as provided by
law, but each shall be cumulative and in addition to every other
remedy.
Section 5.12 Default by Sprinticket.
A. Any of the following shall constitute events of default if not
remedied by Sprinticket within thirty days following receipt of
written notice, as provided in Section 5.17 below:
(1) Sprinticket's failure or neglect to perform or observe any of its
existing or future obligations under this Agreement;
(2) The Software provided pursuant to this Agreement fails to perform
the function described in this Agreement.
Section 5.13 Customer's Remedies.
A. In the event of Sprinticket's default pursuant to Section 5.12 above,
Customer shall have the right to terminate this Agreement.
B. Such termination right, if asserted by Customer, shall be in lieu of
any other rights or claims which Customer may have against
Sprinticket, except for processing of transaction data generated by
transactions completed prior to termination, pursuant to the
Provisions of Article 4 above. Such termination right, if exercised
by Customer, shall not preclude Sprinticket either from completing
its responsibilities of processing transaction data generated by
transactions completed prior to termination, or from invoicing
Customer for the resulting Service Fees pursuant to the provision of
Article 4 above and Schedule D below. Customer shall remain liable to
Sprinticket for all invoices reflecting Services Fees for
transactions completed prior to termination.
Section 5.14 Limitation of Customer's Remedies.
A. Customer agrees that the sole remedies for the breach of any of the
warranties contained in this Agreement and the sole remedies for
Sprinticket's liability of any kind with respect to the Products or
services provided pursuant to this Agreement shall be limited to the
remedies provided in this Agreement. Customer further agrees that in
no event shall Sprinticket's liability to Customer for damages of any
nature exceed:
(1) The total charges paid or payable for Support Services during one
year under this Agreement if the liability arises from Support
Services; or
(2) The purchase price of any specific Product if the liability
results from use of that specific Product.
Section 5.15 Consequential Damages.
CUSTOMER AGREES THAT SPRINTICKET SHALL NOT BE LIABLE FOR ANY SPECIAL,
INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OR FOR THE LOSS OF
PROFIT, REVENUE, OR DATA ARISING OUT OF THE SUBJECT MATTER OF THIS
AGREEMENT, EVEN IF SPRINTICKET SHALL HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
Section 5.16 No Responsibility of Sprinticket For Products or Services of
Others.
Customer agrees that Sprinticket shall have no responsibility for any
hardware, software, or other items, or any services provided by any
persons other than Sprinticket.
Section 5.17 Notices.
Unless otherwise provided in this Agreement, any notice required or
permitted by this Agreement to either party shall be deemed to have
been duly given if in writing and delivered personally or mailed by
registered or certified mail, postage prepaid and addressed (when
intended for Customer) to V.P. of Finance, 000 Xxxxxx Xxxx Xx.,
Xxxxxx Xxxx,
Xxxxxxxx 00000 or (when intended for Sprinticket) to The Pathways
Group, Legal Department, 00000 XX 000xx Xx., Xxxxxxxxxxx, Xxxxxxxxxx
00000.
Section 5.18 No Assignment of Contract by Customer.
This Agreement and Customer's rights thereunder shall not be assigned
without the prior written consent of Sprinticket. Any attempt to make
such an assignment without Sprinticket's written consent shall be
void.
Section 5.19 Sprinticket's Right of Assignment.
This Agreement and Sprinticket's rights thereunder may be assigned,
pledged, mortgaged or otherwise disposed of by Sprinticket, provided
that Customer shall not be obligated to any assignee of Sprinticket
except after written notice of such assignment from Sprinticket.
Sprinticket's assignment of this Agreement or the Service Fees due or
to become due hereunder, or any other interest herein, shall not
release or relieve Customer from its Service Fees and other
obligations hereunder. Customer agrees unconditionally that if so
requested by Sprinticket, Customer will pay the Service Fees and all
other sums due under this Agreement directly to the
creditor/assignee, provided the Service Fees and/or other sums which
are asserted to be due have been billed to Customer, and provided
further that rights to such proceeds have been assigned to the
creditor/assignee by Sprinticket. The receipt by such assignee of
such payments shall discharge the obligations of Customer to
Sprinticket hereunder to the extent thereof. Customer agrees to
execute any and all documents including consent to assignment
presented to it by Sprinticket to enable Sprinticket to effect any
such assignment as described in this Section.
Section 5.20 Nonwaiver.
Customer and Sprinticket agree that no failure to exercise, and no
delay in exercising any right, power, or privilege under this
Agreement on the part of either party shall operate as a waiver of
any right, power, or privilege hereunder. Customer and Sprinticket
further agree that no single or partial exercise of any right, power,
or privilege hereunder shall preclude further exercise thereof.
Section 5.21 Severability.
If any part of this Agreement shall be adjudged invalid or
unenforceable by any court of competent jurisdiction, that judgment
shall not affect or nullify the remainder of this Agreement and its
effect shall be confined to the part immediately involved in the
controversy adjudged. Furthermore, Sprinticket shall have the right
to add, in lieu of such invalid or unenforceable provisions,
provisions as similar in terms to such invalid or unenforceable
provisions as may be valid and enforceable.
Section 5.22 Governing Law.
This Agreement shall be deemed to have been made in, and shall be
construed pursuant to, the laws of the State of Washington.
Section 5.23 Jurisdiction and Venue.
Any suit or proceeding brought by Sprinticket to enforce Section 3.04
of this Agreement shall be commenced in the King County Superior
Court of the State of Washington or the United States District Court
for the Western District of Washington, at Seattle, Washington, and
Customer consents to service of process by certified mail, return
receipt requested, addressed to Customer at the address set forth in
Section 5.17 above.
Section 5.24 Attorney's Fees.
If any legal action is commenced to enforce the terms of this
Agreement, the prevailing party shall be entitled to reasonable
attorney's fees in addition to any other relief to which that party
may be entitled. This provision shall be construed as applicable to
the entire Agreement.
Section 5.25 Injunctive Relief.
A. The parties recognize and agree that if Customer were to violate any
of the provisions of Paragraph A of Section 3.04 above, whether
during the term of the Software license or following its expiration
or termination pursuant to Section 3.05, whether directly or
indirectly, and whether voluntarily or under compulsion by subpoena
or other legal process, that the violation would cause irreparable
harm to Sprinticket and or its related corporations and that
Sprinticket would have no adequate remedy at law. Therefore, Customer
and Sprinticket agree that if Sprinticket believes in good faith that
Customer may be violating or about to violate any of the provisions
of Paragraph A of Section 3.04, whether during the term of the
Software license or following its expiration or termination pursuant
to Section 3.05 above, and whether voluntarily or involuntarily, then
Sprinticket shall be entitled to obtain a temporary restraining order
without delay, and proceed to obtain a preliminary injunction and
permanent injunction to prevent such violation or if necessary,
proceed to obtain a suitable Court Order to prevent the violation.
This provision is not intended to be exclusive; Sprinticket shall
also be entitled to bring a claim for damages or any other
appropriate relief for violations of Paragraph A of Section 3.04.
B. However, if Customer has violated the provisions of Paragraph A of
Section 3.04 while acting under compulsion by subpoena or other legal
process and has first notified Sprinticket as promptly as was
reasonably possible in order to allow Sprinticket an opportunity to
obtain a suitable Court Order to prevent the compelled violation, the
compelled violation shall not be deemed an event of default and shall
not entitle Sprinticket to bring a claim for damages.
Section 5.26 Amendments.
Customer and Sprinticket agree that this Agreement shall be modified
only by a written agreement duly executed by persons authorized to
execute agreements on behalf of Customer and Sprinticket. The parties
further agree that the terms, conditions, and prices contained in
this Agreement shall prevail notwithstanding any variations or
additional terms on any purchase orders or other notifications
submitted by Customer.
Section 5.27 Binding Effect.
This Agreement shall be binding upon the parties herein, their
successors, assigns and legal representatives.
Section 5.28 Counterparts.
This Agreement may be executed in counterparts, each of which shall
be deemed an original.
Section 5.29 Entire Agreement.
Customer and Sprinticket acknowledge and agree that this Agreement is
the complete and exclusive statement of the mutual understanding of
the parties and that this Agreement supersedes and cancels all
previous written and oral agreements and communications relating to
the subject matter of this Agreement.
Section 5.30 Y2K.
Sprinticket guarantees Y2K compliance. /s/ CP /s/ BH Executed and accepted this
1st day of October, 1998, at Woodinville, Washington.
SPRINTICKET CUSTOMER
Sprinticket, a Division of The Pathways Group, Inc. Winter Park Recreation Association
[name of corporation or entity]
By: By:
/s/ Xxx Xxxxxx /s/ Cray Xxxxxxx
[signature] [signature]
Xxx Xxxxxx Cray Xxxxxxx
[printed name] [printed name]
SR VP Sales & Marketing VP - Finance
[printed title] [printed title]
