AMENDED AND RESTATED CONCESSION AGREEMENT
Exhibit 10.5
AMENDED AND
RESTATED
This
AMENDED AND RESTATED CONCESSION AGREEMENT (this “Agreement”) is entered into and
effective as of March 26, 2002, by and among XXXX DISNEY WORLD CO., with a
mailing address of X.X. Xxx 00000, Xxxx Xxxxx Xxxxx, Xxxxxxx 00000, and XXXX DISNEY WORLD HOSPITALITY &
RECREATION CORPORATION, with a mailing address of X.X. Xxx 00000, Xxxx
Xxxxx Xxxxx, Xxxxxxx 00000 (collectively, “Disney”), and CRYSTAL MAGIC, INC., with a
mailing address of 0000 Xxxxxx Xxxx Xxxx, Xxxxxx, Xxxxxxx, 00000 (“Vendor”), and
hereby amends and restates the Concession Agreement between Vendor and Xxxx
Disney World Co. dated as of December 7, 1999 (the “Prior Agreement”). Pursuant
to this Agreement, Vendor shall provide certain services and/or merchandise for
sale to guests of EPCOT® and the MAGIC KINGDOM® Park (collectively, the
“Premises”), located at the XXXX DISNEY WORLD® Resort.
IN
CONSIDERATION of the mutual covenants contained herein, the parties agree as
follows:
1. Grant of
License; Status of Prior Agreement. Disney hereby grants to Vendor a
non-exclusive, non-transferable license to enter upon the Premises to perform
the services described on Exhibit
A, attached hereto and made a part hereof (the “Services”), and for no
other purpose. Vendor shall provide the Services at the Premises at the Imagination Institute in
EPCOT® commencing on December 7, 1999 and at the Tomorrowland Arcade in the MAGIC KINGDOM®
Park commencing on March 26, 2002 (collectively, the “Concession”). The
provisions of this paragraph shall be deemed to create a mere license only, and
shall not be construed to be a lease, sublease, assignment, easement or any
other conveyance of any interest in or to the Premises or in or to anything
contained therein or thereon. Vendor shall not make any alterations or
modifications to the Premises or the Concession without the prior written
approval of Disney, which approval may be withheld by Disney in its sole
discretion. Disney may enter the Concession at any time for any purpose
including, without limitation, ensuring that Vendor is complying with the terms
of this Agreement. Upon the effective date of this Agreement set forth above,
the Prior Agreement will no longer be in force or effect and this Amended and
Restated Concession Agreement will, without any lapse of time between the grant
of license previously granted under the Prior Agreement and the license granted
hereunder, supersede the Prior Agreement in all respects.
2. Name of
the Concession. The name and any changes to the name of the Concession
must be pre-approved in writing by Disney in its sole discretion. The parties
hereto acknowledge and agree that Disney owns the name of the Concession. Disney
hereby grants to Vendor a revocable non-transferable, royalty-free,
non-exclusive license to use such name during the Term (as hereinafter defined)
only at the Concession. Vendor shall not use such name at any other location or
for any other purpose, unless approved by Disney in its sole discretion. Unless
otherwise agreed in writing by Disney, in its sole discretion, in providing the
Services, Vendor shall not identify the name of Vendor or the brand name of the
merchandise, products or services being offered by Vendor at the
Concession.
3. Days and
Times of the Services. Vendor shall provide the Services at the
Concession on the days and times as set forth on Exhibit
A, or such other days and times as Disney shall designate in its sole
discretion.
4. Term.
The term of this Agreement shall commence on December 7, 1999, and continue
through and including XXXX the “Term”), unless any party terminates this
Agreement, with or without cause (i.e., in the terminating party’s sole
discretion), by providing the other parties with sixty (60) days’ prior written
notice. In addition, Disney may terminate this Agreement for cause (e.g., if
Vendor fails to perform any of its obligations under this Agreement) immediately
by giving notice to Vendor. The parties mutually agree that there may be a
period during the Term during which the Concession will be closed by Disney for,
among other reasons, inclement weather, maintenance and rehabilitation of the
Premises or special events (the “Closed Period”). The existence of the Closed
Period shall not extend the Term or release the parties from their obligations
hereunder.
5. Merchandise/Other
Products/Services. Vendor shall provide the merchandise, other products
and/or services in connection with the Services, as identified in Exhibit
B, attached hereto and made a part hereof. All changes in the
merchandise, other products and/or services shall be approved by Disney in
writing in its sole discretion. Disney shall have the right, in its sole
discretion, to require Vendor to remove any merchandise, other products and/or
services from the Concession and/or to add any merchandise, other products
and/or services to the Concession; provided, however, that Disney shall not have
the right to require Vendor to remove xxxxxxx xxxxx cubes completely from the
Concession without the prior written approval of Vendor.
6. Inventory/Equipment/Supplies.
Vendor will provide all inventory, equipment and supplies necessary to provide
the Services including, but not limited to, the equipment described on Exhibit
C, attached hereto and made a part hereof (the “Equipment”). All of the
inventory, Equipment and supplies shall be subject to the prior approval of
Disney in its sole discretion Vendor shall keep the Concession fully supplied at
all times. Vendor shall regularly inspect and service the Equipment, keeping
each piece of Equipment in good working order. Vendor will be responsible for
cleaning below, above and behind the Equipment and for complying with all other
applicable rules and regulations relating to the Equipment. During the Term,
Vendor shall retain ownership of all of the inventory, Equipment and supplies
necessary to provide the Services and all risk of loss thereto shall be borne
solely by Vendor, except to the extent such loss is caused solely by Disney’s
gross negligence or willful misconduct. Maintenance of the Equipment during the
Term shall be Vendor’s sole responsibility. Upon the expiration or sooner
termination of this Agreement, Vendor shall promptly remove all of its
inventory, Equipment and supplies from the Premises. If Vendor shall fail to
remove any of its inventory, Equipment or supplies from the Premises, Disney
may, at its option, either remove and dispose of any or all of the same at
Vendor’s expense or retain the same, in which latter event all right, title and
interest therein shall pass to and vest in Disney.
7. License
To Use Disney Characters.
a. Disney
hereby grants to Vendor a revocable, non-transferable, royalty-free,
non-exclusive license to use the characters identified on Exhibit
B only on the merchandise identified on Exhibit
B (the “Disney Merchandise”), Vendor acknowledges that Disney has adopted
the Code of Conduct for Manufacturers (the “Code”) set forth on Exhibit
D, attached hereto and made a part hereof. If Vendor, at any time,
desires to utilize a third party to manufacture or produce any of the Disney
Merchandise, Vendor will notify Disney of the names and physical street
addresses of such third parties (individually, a “Third Party” and collectively,
the “Third Parties”), Disney shall have the right, in its sole discretion, to
approve in writing all of the Third Parties. If Disney does not approve in
writing any Third Party, Vendor shall not use such Third Parry to manufacture or
produce the Disney Merchandise. If Disney approves a Third Party in writing,
Vendor may use such Third Party to manufacture or produce the Disney
Merchandise.
b. To
the extent Vendor wishes to manufacture or produce any of the Disney Merchandise
itself, Vendor shall adopt the Code and shall evidence such adoption by
executing a copy of the Code and delivering the originally executed copy of the
Code to Disney prior to Vendor’s commencement of the manufacture or production
of the Disney Merchandise.
x. Xxxxxx
shall have the right, in its sole discretion, to withdraw its approval of any
Third Party at any time. If Disney withdraws its approval of any Third Party,
Vendor shall immediately stop using such Third Party to manufacture or produce
the Disney Merchandise, provided, however, that Vendor shall be permitted to
sell all of such Disney Merchandise in its inventory, unless Disney provides
otherwise in writing to Vendor.
x. Xxxxxx
shall have the right to evaluate and monitor Vendor to ensure that Vendor is
only using Third Parties approved by Disney hereunder to manufacture and produce
the Disney Merchandise, including, but not limited to, on-site inspections and
reviews of books and records.
e. Vendor
shall not sell or use the Disney Merchandise at any other location or for any
purpose other than in connection with the Services, unless approved by Disney in
its sole discretion. Upon the expiration or sooner termination of this
Agreement, Vendor shall return to Disney any remaining inventory of such Disney
Merchandise.
8. Signage.
a. Disney
shall provide, at its sole cost and expense, such signage and promotional
materials for the Concession at Imagination Institute in
EPCOT® as Disney deems necessary, in its sole discretion. Vendor shall not
display or distribute any other signage or promotional materials at such
Concession.
b. Vendor
shall provide, display in location(s) designated by Disney and distribute, at
its sole cost and expense, such signage and/or promotional materials for the
Concession at the Tomorrowland
Arcade in the MAGIC KINGDOM® Park as Disney may approve in its sole
discretion. Vendor shall not display or distribute any other signage or
promotional materials at such Concession without the prior written approval of
Disney, which approval may be withheld by Disney in its sole
discretion.
9. Uniforms.
Disney will provide all uniforms for Vendor and its employees (as hereinafter
defined). Vendor acknowledges and agrees that Vendor has no ownership rights in
the uniforms. Vendor shall return the uniforms to Disney for cleaning and
maintenance as Disney may require during the Term. Vendor shall keep such
uniforms clean and professional at all times in accordance with Disney’s safety
and appearance standards whenever Vendor or its employees are performing the
Services. Upon the expiration or sooner termination of this Agreement, Vendor
shall immediately return the uniforms to Disney, Vendor will be responsible for
reimbursing Disney for Disney’s uniform cleaning, maintenance and/or replacement
costs for Vendor and Vendor’s employees upon receipt of a monthly invoice from
Disney. To the extent any of the uniforms are lost or substantially damaged, as
determined by Disney in its sole discretion, Vendor agrees to reimburse Disney
for the replacement costs of such uniforms.
10. Disney’s
Responsibilities. During the Term, Disney shall be responsible for the
following, at its sole cost and expense:
a. Utilities
(other than telephone). In no event shall Disney be liable or responsible for
any interruption or disruption of utility service and Vendor hereby waives any
and all claims against Disney for any loss, damage or expense arising out of, or
incurred in connection with, any such interruption or disruption.
b. Trash
pick up.
11. Vendor’s
Responsibilities. During the Term, Vendor shall be responsible for the
following, at its sole cost and expense:
a. Telephone
service.
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b.
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Keeping
the Concession clean, sanitary and free from trash and
debris.
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12. Compensation
for the Services.
a. Vendor’s
compensation for the Services shall be based solely on the Services provided,
provided.
b. All
sales at the Concession are to be handled by Disney’s personnel whether on site
or by mail order or drop shipping. Vendor shall not accept any money from guests
but shall refer all sales
transactions, including special orders and mail orders, to Disney personnel for
processing through cash registers in accordance with Disney’s standard sales
procedures.
x. Xxxxxx
shall collect the compensation from the guests and shall pay to Vendor sixty
percent (60%) of gross revenues from retail sales from the Services, less
applicable sales, use excise or other taxes. Disney shall retain the remaining
gross revenues from retail sales from the Services. The term “gross revenues
from retail sales from the Services” is defined as all monies and other things
of value received by, or paid to, Disney and all credit extended by Disney,
arising upon, out of or in connection with the Services at the Concession during
the Term, plus the amount of any applicable sales, use, excise or other taxes,
less the amount of any of Vendor’s merchandise or products which are returned to
Disney or replaced by Disney, less the amount of any refunds made by Disney in
connection with the Services, less the amount of any cancelled orders for
Vendor’s merchandise or products. Such fee shall be payable on or before
Thursday of each week with respect to gross revenues from retail sales from the
Services made during the preceding week (Sunday through Saturday), through and
including the calendar week immediately following the expiration or sooner
termination of this Agreement.
x. Xxxxxx
shall maintain complete and accurate records evidencing the gross revenues from
retail sales from the Services. Disney agrees to make available to Vendor once
each calendar year, upon thirty (30) days’ prior written request by Vendor, a
full, permanent and accurate set of Disney’s accounting books and records
relating solely to gross revenues from retail sales from the Services. Vendor
will have the right, at its sole cost and expense, to audit said books and
records. Disney agrees to keep all such books and records for at least three (3)
years following the expiration or sooner termination of this
Agreement.
13. Taxes.
a. Amounts
retained by Disney under this Agreement are subject to tax. Accordingly, the
applicable sales, use, excise or other taxes on such amounts shall be deducted
from Vendor’s compensation and remitted by Disney to the State of
Florida.
x. Xxxxxx
shall be responsible for remitting directly to the State of Florida all sales
taxes applicable to the gross revenues from retail sales from the Services,
according to the provisions of Disney’s Florida Direct Payment Authority
Certificate #TPP-0038, attached hereto as Exhibit
E.
14. Exhibits.
The exhibits referred to in, and attached to, this Agreement are hereby
incorporated herein by reference. Unless otherwise expressly provided in the
exhibit or the body of this Agreement, in the event of any conflict or
inconsistency with the provisions contained in the body of this Agreement and
the exhibits, the provisions contained in the body of this Agreement shall
prevail.
15. Miscellaneous.
The GENERAL TERMS AND
CONDITIONS attached to this Agreement are hereby incorporated herein by
reference. This Agreement constitutes the entire agreement of the parties hereto
with respect to the subject matter of this Agreement and supersedes any and all
previous agreements, negotiations and understandings among the parties, whether
written or oral, with respect to such subject matter. Any modification of this
Agreement shall be in writing and signed by all of the parties hereto. If any
provision of this Agreement is deemed to be invalid, it shall be considered
deleted herefrom and shall not invalidate the remaining provisions.
16. Signature
Authority. The person who executes this Agreement on behalf of any party
hereto expressly represents and warrants that he/she has full and complete
authority to do so, knowing that the other parties intend to rely solely
thereon.
17. No
Offer. This instrument does not constitute an offer by Disney. When
executed by Vendor, it shall constitute an offer by Vendor to Disney irrevocable
for a period often (10) days after receipt by Disney and, upon execution by
Disney and delivery to Vendor, shall constitute a binding agreement among the
parties.
IN
WITNESS WHEREOF, the panics have executed this Agreement as of the date first
above written.
(“DISNEY”)
(“VENDOR”)
XXXX
DISNEY WORLD
CO. CRYSTAL
MAGIC, INC.
By: /s/ Xxxx
Mrozinsko
By: Xxxxxx X. Xxxxxx
Title: Vice
President
Title: President
XXXX
DISNEY WORLD HOSPITALITY
&
RECREATION CORPORATION
By: /s/ Xxxx
Xxxxxxxxx
Title: Vice
President
GENERAL TERMS AND
CONDITIONS
A. Control
of the premises. Nothing in this Agreement is intended or shall be deemed
or construed to grant to or confer upon Vendor any rights whatsoever in respect
of the Premises, including, without limitation, rights in connection with the
closing, alteration, discontinuance, condemnation or casualty loss thereof.
Accordingly, without limiting the generality of the foregoing. Disney shall have
ultimate and unfettered control over the Premises.
B. Themed
Cart. If requested by Disney, Vendor shall provide a cart for use in
connection with the Services. Disney shall have the right to approve every
aspect of the Cart, including, without limitation, design, theming and signage,
such approval to be in Disney’s sole and absolute discretion; provided, however,
that by giving any such approval, Disney shall not assume responsibility for the
quality, workmanship and/or safety of such cart. Once approved, Vendor shall not
change the design, theming or any other aspect of the cart without the express
written approval of Disney, which approval may be withheld by Disney in its sole
discretion. Vendor’s expenditure of any monies in connection with the design,
construction, installation, removal, acquisition and/or operation of the cart
shall be at Vendor’s sole risk. Upon the expiration or sooner termination of
this Agreement, Disney shall have the right to request that Vendor remove any
theming from the cart and Vendor shall remove the cart from the Premises at its
sole cost and expense. If Vendor shall fail to remove the cart from the
Premises, Disney may, at its option, either remove and dispose of the cart at
Vendor’s expense or retain the same, in which latter event all right, title and
interest therein shall pass to and vest in Disney.
X. Xxxxxx’x
Approval of Cart Manufacturer. The architects, engineers, consultant and
general contractors selected by Vendor for the design and production of the cart
shall be licensed in the State of Florida and shall be subject to the prior
written approval of Disney, which approval may be withheld by Disney in its sole
discretion. If requested by Disney, Vendor shall furnish to Disney copies of all
contracts for any work in connection with the design and construction of the
cart (including, without limitation, all contracts for the purchase of materials
and supplies in connection therewith).
D. No
Representations or Warranties by Disney. Disney makes no representations
or warranties whatsoever in connection with this Agreement, including, without
limitation, the condition of the Premises, its suitability for the use described
herein or for any other use, the visibility, of the Concession to the guests of
the Premises, the profitability of the Services to be provided at the Concession
or the success or failure of the Services to be provided at the
Concession.
E. Participants.
Vendor acknowledges that Disney and its parent, related, affiliated and
subsidiary companies are parties to certain participant agreements and that
Disney and its parent, related, affiliated and subsidiary companies may enter
into additional participant agreements in the future. Vendor agrees to comply
with the provisions of such participant agreements as they exist from time to
time. Disney shall disclose the relevant provisions of such agreements to
Vendor.
F. Licenses.
Vendor and its employees shall be licensed as required by law. Vendor shall
obtain and maintain throughout the Term, all professional, occupational
equipment, and other licenses and permits required by law to perform the
Services and shall provide copies of such licenses to Disney upon
request.
X. Xxxxxx
Traditions/Guest Surveys/Meetings. If requested by Disney, Vendor and its
employees shall enroll in, at Vendor’s expense, and complete the Disney
Traditions class and any other Disney class that Disney deems necessary prior to
commencement of the Services or at any time thereafter as Disney may determine
in its sole discretion. Vendor and its employees shall, if requested by Disney:
(i) conduct or participate in guest evaluation and experience surveys at
periodic intervals relating to the Premises and/or the Concession and (ii)
attend meetings called by Disney.
H. Parking
Passes/ID Cards. Disney shall provide Vendor and its employees with
parking passes and ID cards to gain admission to the Premises and to the cast
parking lot at the Premises. Upon the expiration or sooner termination of this
Agreement, Vendor shall return to Disney all parking passes and ID cards issued
to Vendor and its employees pursuant to this Agreement.
I. Additional
Services/Disney Standard. Vendor shall pay Disney for any and all
services provided by Disney which are requested by Vendor, including, without
limitation, the installation of water lines and fixtures, electricity lines and
sanitary sewer. In addition, to the extent Disney determines that Vendor needs
additional equipment to provide the Services, including, without limitation,
lightning rods, Disney shall have the option of either requiring Vendor to
acquire and install such equipment at Vendor’s sole cost and expense or
acquiring and installing such equipment itself and then billing Vendor for such
equipment and installation. Further, to the extent Disney determines that any of
the equipment, supplies, signage or any other items or materials used by Vendor
in connection with the Services do not satisfy the Disney standard, as
determined by Disney from time to time, Disney shall have the option of either
requiring Vender to bring such equipment, supplies, signage or any other items
or materials into compliance at Vendor’s sole cost and expense or taking
whatever actions are required, as determined by Disney in its sole discretion,
to bring such equipment, supplies, signage or any other items or materials into
compliance and then billing Vendor for such actions.
J. Late
Charges. Any amounts payable by Vendor pursuant to this Agreement which
are not paid when due shall bear interest from the date due until the date paid
at the lesser of the maximum rate allowed by law or the annual rate of eighteen
percent (18%) and such interest shall be payable on demand. Vendor shall be
responsible for all costs and expenses that Disney, or its designee, may incur
in collecting any amount due from Vendor hereunder or in enforcing any of
Disney’s other rights or remedies under this Agreement, including, without
limitation, attorneys’ fees and fees of other professionals.
K. Credit
Cards/Charges. If so requested by Disney, Vendor will accept (in
accordance with procedures established by Disney from time to time) XXXX DISNEY
WORLD® hotel identification cards, Disney Dollars and/or other Forms of resort
cards, gift certificates and package coupons distributed by Disney and/or any of
Disney’s parent, related, affiliated or subsidiary companies to guests at the
XXXX DISNEY WORLD® Resort, for payment for the Services. Disney will pay Vendor
the total amount of all such card charges Disney Dollars, resort cards, gift
certificates and package coupons to the extent Vendor has complied with Disney’s
procedures, less a reasonable service fee (currently three and one-half percent
(3-1/2%) of the total amount of all such card charges, Disney Dollars, resort
cards, gift certificates and package coupons), and such amount paid by Disney to
Vendor shall be considered part of “gross revenues from retail sales from the
Services” for purposes of this Agreement. If so requested by Disney, Vendor will
also accept American Express, Visa, MasterCard, Discover Card, Diners; Club, JCB
(Japanese Credit Bureau) Card, and/or other credit cards in payment for the
Services.
L. Guest
Claims. Vendor shall promptly inform Disney of any guest claims or
complaints and any such claims or complaints will be handled exclusively by
Disne’s personnel in accordance with Disney’s policies and
procedures.
M. Change of
Concession. Disney reserves the right to change the location of the
Concession at which Vendor performs the Services upon seven (7) days prior
notice to Vendor. Additionally, Disney reserves the right to introduce new
vendors at any location at the, Premises who may or may not be in direct
competition with Vendor.
N. Personal
property. All personal property placed upon the Premises by Vendor or any
of its employees (including, but not limited to, inventory, Equipment and
supplies) shall remain Vendor’s or its employees’ property, and shall be placed
upon the Premises at Vendor’s or its employees’ sole risk. Disney shall not be
responsible for any loss (including, without limitation, theft) of or damage to
any of Vendor’s or its employees’ personal property on the Premises, except to
the extent such loss or damage was caused solely by the gross negligence or
willful misconduct of Disney. If requested by Disney, Vendor shall give Disney
prompt written notice of any occurrence, incident or accident occurring on the
Premises that causes, or threatens to cause, damage or loss to the Premises or
any property contained therein.
O. Vendor’s
Employees.
i. For
purposes of this Agreement, all references to “employees” of Vendor shall
include Vendor’s employees, agents, representatives and independent contractors
and any other person providing the Services hereunder.
ii. Vendor’s
employees, if any, shall be under Vendor’s direct supervision and control. In
addition, Vendor shall comply with, and Vendor shall ensure that each of its
employees complies with, all of Disney’s standards, rules, and regulations which
may be in effect from time to time and applicable to employees of entities
sponsoring attractions or corporate displays at the XXXX DISNEY WORLD® Resort,
or any part thereof, including, but not limited to, the rules of conduct and
personal appearance standards established by Disney for its own
employees.
iii. Vendor,
and its employees, shall; (a) not insult, use offensive or profane language or
gestures toward or in the presence of, or argue with or be discourteous to, any
guests of the Premises, or any of Disney’s employees or representatives; (b) not
use, possess or be under the influence of alcohol narcotics, drugs or other
hallucinatory agents while on Disney’s premises; and (c) otherwise comply with
any and all rules and regulations promulgated by Disney from time to time for
the protection and safety of Disney’s guests and for their comfort and
convenience.
iv. Vendor
hereby assumes, and releases Disney from, any and all risks to Vendor and its
employees in connection with the Services. Accordingly, Disney shall have no
obligation whatsoever to compensate Vendor, or its employees, on account of any
injuries or property damage which Vendor, or its employees, may sustain as a
result of the performance of the Services hereunder, except to the extent such
injuries or damage were caused solely by the gross negligence or willful
misconduct of Disney, and Vendor hereby waives, on its own behalf and on behalf
of any persons claiming by, through or under Vendor, any and all rights of
recovery which Vendor, or its employees, may now or hereafter have against
Disney on account of any such injury or property damage sustained by Vendor, or
its employees, as a result of the performance of the Services. The provisions of
this section shall survive the expiration or sooner termination of this
Agreement.
v. Any
persons that assist Vendor in the performance of the Services shall be Vendor’s
employees and not the employees of Disney or its parent, related, affiliated or
subsidiary companies, and they, as well as Vendor, shall not be entitled to
participate in any of Disney’s employee benefit or welfare plans, or to receive
any of Disney’s employee benefits. Vendor will pay all salaries and all social
security taxes, federal and state unemployment insurance and any and all similar
taxes relating to Vendor and its employees. Vendor shall provide to Disney, upon
request, evidence that Vendor and its employees possess valid visas, passports
or other documentation to enable Vendor and its employees, respectively, to
perform the Services.
vi. Vendor
acknowledges that Disney has a policy relating to criminal background checks,
which policy is applicable to all prospective new employees and certain existing
employees of Disney and its parent, related, affiliated and subsidiary companies
employed in connection with the XXXX DISNEY WORLD® Resort, as well as all
prospective new employees and certain existing employees of third parties
operating businesses in the XXXX DISNEY WORLD® Resort. Accordingly, Vendor
agrees that, with respect to all prospective new employees of Vendor employed in
connection with the Premises and certain existing employees of Vendor that may
be assigned to work in the Premises from time to time during the Term. Vendor
will conduct, at its own expense, criminal background checks in compliance with
the requirements and procedures set forth in such policy, as the same may be
amended from time to time during the Term. Vendor shall comply with such
requirements and procedures to the minimum extent set forth in the policy and
Vendor may, consistent with all applicable laws, wish to conduct more
comprehensive or inclusive employee criminal background searches on its own
accord. Vendor shall, at Vendor’s expense, comply with all laws applicable to
the initial retrieval and subsequent use and disclosure of the information it
obtains from conducting such criminal background checks (including, without
limitation, the Fair Credit Reporting Act).
P. Representations
and Warranties. Vendor hereby warrants and represents to Disney that: (i)
Vendor has the experience, staff, skill and authority to perform the Services;
(ii) Vendor shall comply with all applicable federal, state and local laws,
rules, regulations, codes, statutes, ordinances, and orders of any governmental
or regulatory authority including, without limitation, the Xxxxx Creek
Improvement
District;
(iii) Vendor is adequately financed to meet any financial obligation Vendor may
be required to incur hereunder, (iv) Vendor has obtained all licenses and
permits required to observe and perform the terms, covenants, conditions and
other provisions on its part to be observed or performed under this Agreement;
(v) any material or work product provided by Vendor under this Agreement shall
not infringe upon any patent, trademark or copyright, or otherwise violate the
rights of, any person, firm or corporation; (vi) Vendor has obtained and will
maintain during the Term, all necessary licenses, consents, permissions and
releases (including, without limitation, any necessary licenses from third
parties for the artwork which is used in Vendor’s performance or the Services),
and will timely make all payments to third parties, that may be required to
provide the Services; (vii) to the extent Vendor is a corporation, Vendor is
duly organized, validly existing and in good standing in its State of
incorporation; (viii) in providing the Services, Vendor shall use good moral
judgment; (ix) there is no actual or potential conflict of interest between the
Services to be performed by Vendor under this Agreement and its family,
business, financial or other interests, and Vendor shall immediately notify
Disney of any actual or potential conflict of interest of which Vendor becomes
aware during the Term; and (x) Vendor will not engage any current employee of
Disney or any of its parent, related, affiliated or subsidiary companies or any
person who was employed by Disney or any of its parent, related, affiliated or
subsidiary companies within the past twelve (12) months to perform any part of
the Services.
Q. Recordation
of this Agreement. This Agreement shall not be recorded.
R. Liens.
i. The
Premises and the Concession shall not be subjected to liens of any nature by
reason of Vendor’s construction, alteration, repair, restoration, replacement or
by reason of any other act or omission of Vendor (or of any person claiming by,
through or under Vendor). All persons dealing with Vendor are hereby placed on
notice that such persons shall not look to Disney or to Disney’s credit or
assets for payment or satisfaction of any obligations incurred in connection
with the construction, alternation, repair, restoration, replacement, use or
reconstruction of the Concession by or on behalf of Vendor. Vendor has no power,
right or authority lo subject Disney to any lien or claim of lien including, but
not limited to, mechanics and other materialmen’s liens. Vendor shall not create
or permit to be created any lien, encumbrance or charge against the Premises or
any part of the Premises including, but not limited to, the
Concession.
ii. To
secure the payment of all compensation due and to become due hereunder and the
faithful performance of this Agreement by Vendor, Vendor hereby gives to Disney
an express first and prior contract lien and security interest on all property
(including, without limitation. Vendor’s merchandise, inventory, supplies,
Equipment, etc.) which may be placed in the Premises, and also upon all proceeds
of any insurance which may accrue to Vendor by reason of destruction of or
damage to any such property. Such property shall not be removed from the
Premises without the prior written approval of Disney (which approval may be
withheld by Disney in its sole discretion) until all arrearages in compensation
then due to Disney hereunder shall first have been paid. If requested by Disney,
Vendor shall execute and deliver to Disney, Uniform Commercial Code Financing
Statements in sufficient form so that when properly filed, the security interest
hereby given shall thereupon be perfected.
S. Confidentiality.
i. Vendor
and/or its employees may, during the course of this Agreement, have access to,
and acquire knowledge of or from, materials, data, strategies, systems, or other
information relating to Disney, or its parent, related, affiliated or subsidiary
companies, which may not be accessible or known to the general public. All such
knowledge acquired by Vendor, or its employees, shall be kept confidential and
shall not be used, published or divulged by Vendor, or its employees, (a) to any
other person, firm or corporation, (b) in any advertising or promotion regarding
Vendor, its employees, or its services, or (c) in any other manner or connection
whatsoever without first having obtained Disney’s prior written permission,
which permission Disney may withhold in its sole discretion.
ii. Vendor
agrees that any suggestions, ideas, information, documents or things which it
discloses to Disney shall not be subject to an obligation of confidentiality by
Disney, and Disney shall not be liable for any use or disclosure thereof, unless
there is a prior written agreement to the contrary among the
parties.
iii. The
provisions of this section shall survive the expiration or sooner termination of
this Agreement.
X. Xxxxxx’x
Promotion Rights. Notwithstanding any other provision of this Agreement
to the contrary, Disney shall have the right, without obtaining Vendor’s
approval, to photograph, take motion pictures of and televise in any manner or
through any media, the Concession and any parts thereof, either individually or
as an integral part of the XXXX DISNEY WORLD® Resort or any part thereof such
right shall include the right to use Vendor or any of its employees or
representatives. Disney may display, use, sell, license or otherwise exploit any
such photographs or pictures for promotional purposes, both during and after the
Term, and all of the foregoing materials and all benefits and revenues obtained
therefrom shall be Disney’s sole and exclusive property. If requested by Disney,
Vendor shall (other than the payment of money) obtain, for Disney’s benefit,
releases, clearances or other instruments from any of Vendor’s employees and
representatives necessary to permit Disney to make and use or cause to be made
and used any such photographs or pictures for any of the purposes herein
provided. The provisions of this section shall survive the expiration or sooner
termination of this Agreement.
U. No Use of
the Disney Name. Vendor shall acquire no rights under this Agreement to
use, and Vendor shall not use: (i) the XXXX DISNEY WORLD or “Disney” xxxx, name
or symbol; (ii) the name “Xxxxxx X. Xxxxxx” or any variation thereof; (iii) any
xxxx, name, symbol, photograph, film or other representation of any theme park,
water park, hotel, restaurant, nightclub, or any other facility located in the
XXXX DISNEY WORLD® Resort; or (iv) any “Disney” fanciful characters (such as
MICKEY MOUSE), designs, symbols, representations, figures, drawings, ideas or
other matter owned, developed or created by The Xxxx Disney Company, or any of
its related, affiliated or subsidiary companies. The provisions of this section
shall survive the expiration or sooner termination of this
Agreement.
V. Insurance.
Vendor shall provide and keep in force during the Term the following
coverages:
i. Commercial
General Liability Insurance (including, without limitation, contractual and
product liability coverages) and Automobile Liability Insurance (for all
vehicles), with minimum limits of $2,000,000 and $1,000,000, respectively,
combined single limit per occurrence, protecting Vendor, Disney, Disney’s
parent, related, affiliated and subsidiary companies and the officers,
directors, agents, employees and assigns of each, from and against claims for
personal injury, bodily injury (including, without limitation, death) and
property damage that may arise from or in connection with the performance of the
Services hereunder or from or out of any act or omission of Vendor, its
officers, directors, agents or employees;
ii. Workers’
Compensation Insurance as required by applicable law, and Employer’s Liability
Insurance with minimum limits of $1,000,000 per occurrence; and
iii. Such
further insurance, in adequate amounts, against risks commonly insured against
in the case of similar operations.
All such
insurance required in this section shall (a) be in companies with a Best Guide
Rating of B+VII or better and on forms acceptable to Disney, (b) provide that
the coverage thereunder may not be reduced or canceled unless thirty (30) days’
unrestricted prior written notice thereof is furnished to Disney, (c) be primary
and not contributory, and (d) be on an occurrence basis. Certificates of
Insurance (or copies of policies, if required by Disney) shall be furnished to
Disney, at least thirty (30) days prior to commencement of the Services
hereunder, naming Disney, its parent, related, affiliated and subsidiary
companies and the officers, directors, agents, employees and assigns of each, as
additional insureds, and shall contain a waiver of subrogation with respect to
the additional insureds.
W. Indemnification.
Vendor shall defend (if requested by Disney), indemnify and hold harmless,
Disney, its parent, related, affiliated and subsidiary companies and the
officers, directors, agents, employees and assigns of each, from and against any
and all damages, claims, demands, suits, judgments, losses or expenses
(including, without limitation, attorneys’ fees and fees of other professionals)
of any nature whatsoever (whether based on tort, breach of contract, product
liability, patent or copyright infringement or otherwise) arising directly or
indirectly from or out of: (i) the sale, use, provision or consumption of any
products or services offered for sale or otherwise obtained in connection with
the Services; (ii) any act or omission of Vendor its officers, directors,
agents, suppliers or employees; (iii) any failure of Vendor to perform the
Services hereunder in accordance with generally accepted industry standards;
(iv) any breach of Vendor’s representations as set forth in this Agreement; (v)
any injuries to, or death of, any of Vendor’s employees; or (vi) any other
failure of Vendor to comply with the obligations on its part to be performed
hereunder. The provisions of this section shall survive the expiration or sooner
termination of this Agreement.
X. Limitations
on Disney’s Liability. Disney shall not be liable to any person, firm or
corporation as a result of any act or omission by Vendor or any other person,
firm or corporation associated with Vendor, nor upon any occurrence arising out
of or related in any way to this Agreement or any use of the Premises by Vendor.
IN NO EVENT SHALL DISNEY BE LIABLE TO VENDOR FOR ANY INDIRECT, SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS
AGREEMENT.
Y. Independent
Contractor. In the performance of the Services hereunder, Vendor shall be
an independent contractor and not an agent, employee, partner or joint venturer
of Disney or its parent, related, affiliated or subsidiary companies, and Vendor
shall not interfere with Disney’s operations.
Z. Personal
Services. This Agreement is for the personal services of Vendor and may
not be subcontracted or assigned by Vendor in any fashion, whether by operation
of law, or by conveyance of any type including, without limitation, transfer of
stock in Vendor, without the prior written consent of Disney, which consent
Disney may withhold in its sole discretion. Disney retains the right to assign
all or any portion of this Agreement at any time. Upon such assignment, and
provided the assignee shall, in writing, assume Disney’s obligations under this
Agreement, Disney shall be automatically released and discharged from any and
all of its obligations under this Agreement, and Vendor shall thenceforth look
solely to the assignee for performance of Disney’s obligations under this
Agreement.
AA. Broker
and Commission. All negotiations relating to this Agreement have been
conducted by and among Disney and Vendor without the intervention of any person
or other party as agent or broker. Disney and Vendor represent and warrant to
each other that there are and will be no broker’s commissions or fees payable in
connection with this Agreement by reason of their respective dealings,
negotiations or communications.
BB. Notices.
All notices and approvals submitted hereunder may be sent by certified mail,
return receipt requested to the addresses set forth on the first page of this
Agreement, or delivered by hand to the Concession at the Premises, or any party
hereto may also deliver any such notices and/or approvals by depositing such
notices with a reliable air courier service marked and prepaid for overnight
delivery and addressed as provided on the first page of this Agreement. If such
notice is sent by certified mail, notice shall be deemed given three (3) days
following mailing; if such notice is delivered by hand, such notice shall be
deemed given when delivered to the Concession; and if such notice is sent by air
courier, notice shall be deemed given one (1) day following deposit with such
air courier service.
CC. Force
Majeure. If the performance by any party of its obligations under this
Agreement is delayed or prevented in whole or in part by any cause not
reasonably within its control, it shall be excused, discharged and released from
performance to the extent such performance is so limited or prevented without
liability of any kind. Nothing herein contained shall be construed as requiring
any party to accede to any demands of labor or labor unions, suppliers or other
entities which it considers unreasonable.
DD. Governing
Law. This Agreement shall be construed, regulated and enforced under and
by the laws of the State of Florida without regard to conflicts of laws
principles. Venue for any legal action arising out of this Agreement shall be in
Orange County, Florida and jurisdiction shall be vested exclusively in the
Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida
(or if the Circuit Court shall not have jurisdiction over the subject matter
thereof, then to such other court sitting in said county and having subject
matter jurisdiction). The parties hereby consent to the jurisdiction of such
court and to the service of process outside the State of Florida pursuant to the
requirements of such court in any matter so to be submitted to it, and expressly
waive all rights to trial by jury regarding any such matters.
EE. Waiver of
Rights. The failure of any party hereto to insist upon the Strict
performance of this Agreement, or any of the terms, covenants, representations
and conditions hereof, shall not be deemed a waiver of any rights or remedies
that such party may have and shall not be deemed a waiver of any subsequent
breach in respect of any such terms, covenants, representations and
conditions.
FF. Regulatory
Inspection Reports. Vendor shall deliver to Disney, immediately following
receipt by Vendor, copies of any inspection or evaluation report or any notice
of violation of or failure to comply with any law, rule or regulation applicable
to the Premises or Vendor’s operation of the Concession, which is delivered to
Vendor by any governmental authority (including, without limitation, any agency
of the Florida Department of Business and Professional Regulation).
GG. HACCP.
If, in accordance with Vendor’s permitted use of the Premises under this
Agreement, Vendor prepares and serves to the public any “Potentially Hazardous
Food” (as such term is defined in the Food and Drug Administration Food Code)
then Vendor shall adopt and implement a Hazard Analysis and Critical Control
Point (“HACCP”) program which shall be used by Vendor in the operation of its
business. Upon receipt of a written request, Disney shall provide Vendor a copy
of the Xxxx Disney World Co. HACCP plan for informational, comparative and
illustrative purposes only.
EXHIBIT
A
SCOPE OF
SERVICES
Vendor
will assist Disney, as an independent contractor, in setting up a display area
within the Premises, to provide the following services for sale to the guests of
the Premises:
Generating
guest portraits and 3-D characters, logos and/or artwork (Mickey Mouse, Xxxxxx
Mouse, Xxxxxx Duck, Goofy, Pluto, Figment, Imagination Institute logo, Epcot®
logo, Space Mountain, Cinderella Castle and any other characters, logos and
artwork approved by Disney in writing) sculpture reproductions inside optically
transparent material (a xxxxxxx xxxxx cube).
Vendor
shall also provide the entertainment and show aspects associated with the
Services. Vendor will provide the Services at the times and on the dates that
the Premises are open to the public.
Vendor
agrees that to the extent Vendor uses photographic materials (including, without
limitation, film and photographic paper) in connection with the Services, Vendor
will only use Kodak products. Any substitutions which may be available from
other companies require Disney’s prior written approval in each instance, which
approval Disney may withhold in its sole discretion.
EXHIBIT
B
MERCHANDISE/OTHER
PRODUCTS/SERVICES
Vendor
agrees to provide only the following merchandise/other products/services for
sale:
Merchandise/Other
Products/Services
Optically
transparent material (a xxxxxxx xxxxx cube) which contains guest portraits and
3-D characters, logos and/or artwork (Mickey Mouse, Xxxxxx Mouse, Xxxxxx Duck,
Goofy, Pluto, Figment, Imagination Institute logo, Epcot® logo, Space Mountain,
Cinderella Castle and any other characters, logos and artwork approved by Disney
in writing).
EXHIBIT
C
EQUIPMENT
Vendor
shall provide the following equipment at each of the locations at which it
provides the Services at the Premises:
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1.
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Laser
safety provisions:
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ANSI
Class IV laser system
Interlocked
and labeled enclosure per ANSI ZI36.1
Keyswitch
and emergency stop
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2.
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Laser
Subsystem
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Ultra GRM
1064, standard specifications
Wavelength:
1064 nm (Nd: YAG fundamental)
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3.
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Positioner
Subsystem
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Stepper-driven
3-axis positioning system with motors, drives, and indexer
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4.
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System
Controller
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PC-platform
including, but not limited to
Intel
PII-350 MHz or better processor
128 MB
RAM
10 GB
internal mass storage (hard drive)
1.44MB
removable mass storage (floppy drive)
Multi-protocol
network card
Frame
grabber card
17” color
monitor
Keyboard
RS-232
serial interface
Operating
system: Windows 98
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5.
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Video
Display System
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Color CCD
camera and macro lens
Incandescent
“top light”
Visible
red targeting diode laser
Video
output signal
EXHIBIT
D
CODE OF CONDUCT FOR
MANUFACTURERS
At The
Xxxx Disney Company, we are committed to:
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a
standard of excellence in every aspect of our business and in every corner
of the world;
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ethical
and responsible conduct in all of our
operations;
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respect
for the rights of all individuals;
and
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respect
for the environment.
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We expect
these same commitments to be shared by all manufacturers of Disney merchandise.
At a minimum, we
require that all manufacturers of Disney merchandise meet the following
standards:
Child
Labor Manufacturers
will not use child labor.
The term
“child” refers to a person younger than 15 (or 14 where local law allows) or, if
higher, the local legal minimum age for employment or the age for completing
compulsory education.
Manufacturers
employing young persons who do not fall within the definition of “children” will
also comply with any laws and regulations applicable to such
persons.
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Involuntary
Labor
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Manufacturers
will not use any forced or involuntary labor, whether prison, bonded,
indentured or otherwise.
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Coercion
and
Harassment
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Manufacturers
will treat each employee with dignity and respect, and will not use
corporal punishment, threats of violence or other forms of physical,
sexual, psychological or verbal harassment or
abuse.
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Nondiscrimination
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Manufacturers
will not discriminate in hiring and employment practices, including
salary, benefits, advancement, discipline, termination or retirement, on
the basis of race, religion, age, nationality, social or ethnic origin,
sexual orientation, gender, political opinion or
disability.
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Association
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Manufacturers
will respect the rights of employees to associate, organize and bargain
collectively in a lawful and peaceful manner, without penalty or
interference.
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Health and
Safety
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Manufacturers
will provide employees with a safe and healthy workplace in compliance
with all applicable laws and regulations, ensuring at a minimum reasonable
access to potable water and sanitary facilities; fire safety; and adequate
lighting and ventilation. Manufacturers will also ensure that the same
standards of health and safety are applied in any housing that they
provide for employees.
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Compensation
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We
expect manufacturers to recognize that wages are essential to meeting
employees’ basic needs. Manufacturers will, at a minimum, comply with all
applicable
wage and hour laws and regulations, including those relating to minimum
wages, overtime, maximum hours, piece rates and other elements of
compensation, and provide legally mandated benefits. Except in
extraordinary business circumstances, manufacturers will not require
employees to work more than the lesser of (a) 48 hours per week and 12
hours overtime or (b) the limits on regular and overtime hours allowed by
local law or, where local law does not limit the hours of work, the
regular work week plus 12 hours overtime. In addition, except in
extraordinary business circumstances, employees will be entitled to at
least one day off in every seven-day period.
Manufacturers
will compensate employees for overtime hours at such premium rate as is
legally required or, if there is no legally prescribed premium rate, at a
rate at least equal to the regular hourly compensation rate.
Where
local industry standards are higher than applicable legal requirements, we
expect manufacturers to meet the higher
standards.
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Protection of
the
Environment
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Manufacturers
will comply with all applicable environmental laws and
regulations.
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Other
Laws
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Manufacturers
will comply with all applicable laws and regulations, including those
pertaining to the manufacture, pricing, sale and distribution of
merchandise. All references to “applicable laws and regulations” in this
Code of Conduct include local and national codes, rules and regulations as
well as applicable treaties and voluntary industry
standards.
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Subcontracting
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Manufacturers
will not use subcontractors for the manufacture of Disney merchandise or
components thereof without Disney’s express written consent, and only
after the subcontractor has entered into a written commitment with Disney
to comply with this Code of
Conduct.
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Monitoring
and
Compliance
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Manufacturers
will authorize Disney and its designated agents (including third parties)
to engage in monitoring activities to confirm compliance with this Code of
Conduct, including unannounced on-site inspections of manufacturing
facilities and employer-provided housing; reviews of books and records
relating to employment matters; and private interviews with employees.
Manufacturers will maintain on site all documentation that may be needed
to demonstrate compliance with this Code of
Conduct.
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Publication
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Manufacturers
will take appropriate steps to ensure that the provisions of this Code of
Conduct are communicated to employees, including the prominent posting of
a copy of this Code of Conduct, in the local language and in a place
readily accessible to employees, at all
times.
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