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EXHIBIT 6.e
Neighborhood Box Office, Inc
The Company has entered into agreements with 40 malls owned by The Xxxxx
Company. The following list describes each mall. Following the list is a form of
common agreement for each mall.
The Xxxxx Company (40 Centers) Contract Term - [**] Year
Property Name Location
------------- --------
Augusta Mall Augusta, GA
Bayside Marketplace Mall Miami, FL
Beachwood Place Beachwood, OH
Bridgewater Commons Bridgewater, NJ
Cherry Hill Mall Cherry Hill, NJ
Echelon Mall Voorhees, NJ
Exton Square Exton, PA
Fanueil Hall Boston, MA
Fashion Place Mall Murray, UT
Fashion Show Mall Las Vegas, NV
Franklin Park Mall Toledo, OH
Harbor Place And The Gallery Baltimore, MD
The Gallery @ Market East Philadelphia, PA
Governor's Square Tallahassee, FL
Jacksonville Landing Jacksonville, FL
Mondawmin Mall Baltimore, MD
Moorestown Mall Moorestown, NJ
Oakwood Center Gretna, LA
Oviedo Marketplace Oviedo, FL
Xxxxxx Xxxxx Owings Mills, MD
Paramus Park Paramus, NJ
Park Xxxxxxx Littleton, CO
Perimeter Mall Atlanta, GA
Pioneer Place Portland, OR
Plymouth Meeting Mall Plymouth Meeting, PA
Randhurst Mt. Prospect, IL
Ridgedale Center Minnetonka, MN
Riverwalk Marketplace New Orleans, LA
South Street Seaport New York, NY
Southland Center Taylor, MI
Staten Island Mall Staten Island, NY
The Mall In Columbia Columbia, MD
The Mall In St. Xxxxxxxx Louisville, KY
Towson Town Center Towson, MD
Village Of Cross Keys Baltimore, MD
Westdale Mall Cedar Rapids, IA
Westlake Center Seattle, WA
[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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White Xxxxx Mall Baltimore, MD
Willowbrook Mall Wayne, NJ
Woodbridge Center Woodbridge, NJ
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Contract Services Agreement
THIS CONTRACT SERVICES AGREEMENT (this "Agreement") is entered into
effective as of __________________, 2000 (the "Effective Date") by and between
Neighborhood Box Office, Inc., a Utah corporation ("NBO"), with its principal
place of business at 0000 X. Xxxxxxxxxx Xxxxxx, Xxxxxxxx X, Xxxx Xxxx Xxxx, Xxxx
00000, and ___________________, a ________________ ("Customer"), with an address
c/o The Xxxxx Company, 00000 Xxxxxx Xxxxxxxx Xxxxxxx, Xxxxxxxx, XX 00000-0000.
NBO and Customer are sometimes each referred to herein as a "Party" and
collectively the "Parties."
RECITALS:
A. NBO is in the business of developing, marketing, owning and operating
remote gift certificate distribution systems.
B. Customer is in the business of owning, operating and managing the
[regional shopping center] [urban marketplace] known as ______________ located
in _______________ (the "Property").
C. The Parties desire to enter into a relationship whereby NBO will make
available to and install its remote gift certificate distribution machine (the
"Kiosk"), a "Counter Unit" [2 UNITS FOR FASHION SHOW] and related network
components (collectively, the "System") at the Property and to provide services
associated therewith, as further described in this Agreement.
NOW, THEREFORE, In consideration of the premises set forth above, the
mutual promises, covenants, agreements and benefits set forth hereinbelow, and
for other good and valuable consideration, the Parties agree as follows:
1. RIGHTS AND OBLIGATIONS OF CUSTOMER.
a. Distribution. Customer hereby grants to NBO the exclusive right to
offer and issue gift certificates (the "Mall Gift Certificates") which are
redeemable at all retail establishments located at the Property and at all other
participating shopping centers owned and/or managed by affiliates of The Xxxxx
Company, a Maryland corporation (the "Xxxxx Affiliates") through the System (the
"Mall Gift Certificate Program") and grants to NBO a license to install the
System at the Property, for the Term (defined below) and as further described in
this Agreement. During the Term, NBO will also have the exclusive right to issue
the Mall Gift Certificates through the Internet and via telephone to individual
and corporate customers; provided, however, the foregoing exclusive right shall
not preclude Customer from issuing Mall Gift Certificates to corporate customers
who desire to purchase Mall Gift Certificates at the Property.
b. Utility Access and Service. Customer will provide, or cause to be
provided, at points in the Customer's "Customer Service Booth" [OR CUSTOMER
SERVICE CENTER?] the facilities necessary to enable NBO to obtain and maintain
for the System the electricity and telephone service (the "Utility Services")
required for its operation, as specified on Addendum A part II. The installation
of such services will be at Customer's sole cost and expense and will be
completed on or before __________________, 2000. Such installation shall include
coordination with NBO so that NBO will order the frame relay circuit (described
in Addendum A part II) in time for it to be installed on or before
_________________, 2000.
c. Advertising. Customer agrees to advertise the Mall Gift Certificates
at the Property and assist NBO in the advertising and promotion of the Mall Gift
Certificates to the tenants, prospective tenants, individual and corporate
customers of the Property.
d. Maintenance and Training. Customer will provide, at no cost to NBO,
the personnel necessary to (i) periodically monitor the inventory of blank gift
certificate stock in the Kiosk, (ii) restock the blank gift certificate paper
stock as needed and (iii) notify NBO or its designated agent of any malfunction
with, or damage to the System or any component thereof. In addition, Customer's
personnel will cooperate with NBO in performing its periodic maintenance and
diagnostic procedures on
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the Kiosk and Counter Unit to determine if and when any periodic or preventative
maintenance is needed or if an NBO designated service organization should be
called. NBO will provide, or cause to be provided, all necessary maintenance and
repair within twenty-four (24) hours of Customer's request therefor. Customer
agrees to make available at each Property properly trained personnel to assist
users of the System in purchasing Mall Gift Certificates.
e. Financial Responsibility. Customer accepts full financial
responsibility for the collection of credit/debit card funds associated with the
issuance of Mall Gift Certificates at the NBO Counter Unit and for cash and
debit card funds associated with the issuance of Mall Gift Certificates at the
Kiosk. At the conclusion of each business day, Customer will assure that the
amounts collected for such business day and deposited or to be deposited in the
depository account described in Addendum B Section 1 (the "Depository Account")
(whether by cash or credit/debit card funds) correspond to the value of the Mall
Gift Certificates issued for such day. In the event that NBO determines that
there is a shortage, it will provide immediate notification thereof to
Customer's designee. In the event of a shortage, whether discovered by Customer
or NBO, Customer will cause the Depository Account to have sufficient funds to
cover all outstanding Mall Gift Certificates within thirty (30) days following
the discovery of the shortage.
f. Credit Card Fees. Customer agrees to reimburse NBO for all credit card
fees associated with the issuance of Mall Gift Certificates, whether generated
at the Counter Unit, Kiosk, through the Internet or as corporate issuances. NBO
will bill such credit card fees to Customer at the same rate charged to NBO by
the credit card company and Customer will reimburse the fees to NBO net 15 days
after receiving monthly billing statement; provided, however, in no event will
Customer be obligated to reimburse fees to NBO in excess of 1.87%. Should these
rates change, subject to the cap on fees stated in the preceding sentence, NBO
will provide a new rate structure to Customer. NBO currently accepts Visa and
MasterCard credit cards.
g. Internet. Customer and NBO will cooperate in designing and
implementing a so-called "hyperlink" which will allow visitors to Customer's
website the opportunity to obtain Mall Gift Certificates. Customer will provide
NBO with names of Customer's website administrators in order to complete all
programming requirements. NBO will pay for programming costs required for NBO to
provide style HTML frames with cascading sheets at Customer's website. NBO
agrees to provide fulfillment on each order that is transacted through the
hyperlink. As of the date hereof NBO is charging the following handling charges:
Number of Certificates Charge for Standard U.S. Mail Handling
---------------------- --------------------------------------
1-5 $1.95
6-15 $2.95
16-30 $3.95
More than 30 Certificates Charge
------------------------- ------
Up to 15 lbs. $4.95 for UPS Ground or
$9.95 for 2-day Federal Express or
$18.95 for overnight Fed. Ex.
Over 15 lbs. Priced based on weight and shipping zones
NBO shall not increase any of the foregoing charges more frequently than once
per year, and any such increase is subject to Customer's prior approval which
will not be unreasonably withheld.
h. Relocation. Customer shall have the right at any time during the Term
to cause NBO to relocate the Kiosk and/or the Counter Unit to another mutually
agreeable location in the Property upon giving NBO at least thirty (30) days
advance written notice of its intention to so relocate. In that event, Customer
shall at its expense bring the necessary utilities to the relocated Kiosk and/or
Counter Unit. NBO shall provide the technical expertise, at its expense, to
assure that the Kiosk and/or Counter Unit are functioning properly following the
relocation. In the event that Customer and NBO cannot agree on a location within
the thirty-day notice period, then this Agreement shall terminate at the end of
the thirty-day notice period.
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2. RIGHTS AND OBLIGATIONS OF NBO.
a. The System. NBO will install the System at the Property at no cost to
Customer and will cause the System to be operated only for the issuance of Mall
Gift Certificates and for no other purpose. All Mall Gift Certificates will be
issued through the Kiosks using cash or a debit card and through the Counter
Unit using credit/debit card. [FASHION SHOW: 2 UNITS.] NBO will cause the
Counter Unit to be fully operational and activated on _______________, 2000. NBO
will cause the Kiosk to be fully operational and activated on ______________,
2000. Customer shall have the right to request the installation of an additional
Counter Unit as part of the System, and NBO shall provide such additional
Counter Unit to Customer for such periods of time as are requested by Customer,
from time to time, at a cost to Customer of Two Hundred Fifty Dollars ($250.00)
per month, plus all shipping costs, within 45 days following Customer's request
therefor.
The System, including the Kiosk and Counter Unit, is the exclusive
property of NBO and will remain NBO's property throughout the Term and
thereafter. NBO is and shall be the sole owner of the tradename "Neighborhood
Box Office" and all other tradenames, trademarks and copyrights now used in or
in the future used by NBO in connection with the System.
b. Competing Installations. Customer understands and agrees that NBO has
the right to enter into agreements the same as or similar to this Agreement with
other companies who may own or manage competing retail establishments or malls
in the geographic vicinity of the Property, and to install its distribution
components in such establishments or malls and offer gift certificates thereat.
NBO acknowledges that Customer's registered name "Premier Shopper Club" will
appear prominently on the Mall Gift Certificates, and NBO agrees that it will
not produce gift certificates for any other companies (other than affiliates of
Customer) which use any name which may be confusingly similar to "Premier
Shopper Club".
c. Advertising. NBO has the right to engage in an on-going program of
advertising and promoting the services which it offers, including any components
of the System that may be installed at competing retail establishments or malls
located in the geographic vicinity of the Property. NBO may not, however, use
Customer's name or the name of any of its affiliates nor the name or likeness of
the Property in any advertising or promotion nor shall NBO engage in such
advertising and promotion at the Property without the express written consent of
Customer, which consent may be withheld in Customer's absolute and sole
discretion. Further, NBO agrees that it will solicit advertising to be printed
on the Mall Gift Certificates stock. All such advertising shall be subject to
Customer's approval, which Customer may withhold in its sole discretion. NBO
will remit to Customer one-half (1/2) of the net revenues generated by such
advertising, which shall be the gross revenues generated by the advertising less
NBO's costs directly attributable to the solicitation of such advertising.
d. Maintenance and Training. During the Term NBO will maintain or cause
to be maintained, and make all necessary repairs or cause such repairs to be
made to, the System, including all warranty work on all hardware and software
associated with the Kiosk and Counter Unit at no cost to Customer. NBO will
provide training to personnel designated by Customer in the operation of the
System, including, but not limited to, the method of reconciliation contemplated
by Section 1e of this Agreement. NBO will also conduct training sessions, as
requested and approved by Customer, for representatives of the Property's retail
establishments.
e. Convenience Fees. No convenience fees will be charged for the Mall
Gift Certificates except as may be mutually agreed upon by the Parties. Any such
fees are set forth in Addendum A, Part I, attached hereto. If the Parties agree
upon such fees, NBO shall pay to Customer its share of the fees monthly within
fifteen (15) days following the end of each calendar month.
f. Mall Gift Certificate Redemption. The Mall Gift Certificates will be
in the form of executable bank checks that can be redeemed for merchandise or
services at any retail establishment in the Property and deposited into the
account of such retail establishment. NBO will guarantee the redemption funds to
the retail establishment as long as said establishment follows the NBO Mall Gift
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Certificate redemption procedures. Such redemption procedures shall be mutually
agreed upon by the Parties and provided in writing to participating retail
establishments in the Property by Customer. All funds deposited into the bank
account may be monitored at any time by Customer through Automated Balance
Reporting via modem for a monthly fee of $75.00 or with no monthly fee through a
1-800 number direct with the bank.
g. Management of Depository and Related Accounts. Certain depository and
other accounts will be established by Customer and/or NBO as described in
Addendum B attached hereto. Each such account shall clearly indicate that
Customer and/or NBO, as appropriate, has no ownership interest in the amounts
deposited in the account and that such amounts are for the benefit of the
holders of Mall Gift Certificates, subject to redemption.
h. Financial Responsibility. NBO accepts full financial responsibility
for the collection of credit card funds associated with the issuance of Mall
Gift Certificates over the Internet or through the toll-free number established
by NBO. At the conclusion of each business day, NBO will assure that the amounts
collected for such business day and deposited or to be deposited in the FSB
Depository Account described in Addendum B Section 2 (whether by credit/debit
card funds) correspond to the value of such Mall Gift Certificates issued for
such day. In the event that NBO determines that there is a shortage, it will
provide immediate notification thereof to Customer's designee. In the event of a
shortage, whether discovered by Customer or NBO, NBO will cause the FSB
Depository Account to have sufficient funds to cover all such outstanding Mall
Gift Certificates within thirty (30) days following the discovery of the
shortage.
i. Unredeemed Mall Gift Certificates. As provided in Addendum B, NBO
shall be responsible for and will cause compliance with all applicable state
abandoned property or escheat laws. Any balance of unredeemed Gift Certificates
remaining after compliance with all applicable laws shall be paid to NBO as fees
for services provided by NBO pursuant to this Agreement. [NBO TO PROPOSE
LANGUAGE RE FEES COME OUT OF OTHERWISE ESCHEATED PROCEEDS TO THE EXTENT
PERMITTED BY LAW. CUSTOMER TO BE INDEMNIFIED AGAINST THIS.]
j. Insurance; Indemnity. NBO shall indemnify Customer and save it
harmless for, from and against any and all claims, actions, damages, liabilities
and expenses (including attorneys' and other professional fees) suffered by
Customer in connection with: (i) loss of life, personal injury and/or damage to
property or the environment suffered by third parties arising from or out of the
occupancy or use by NBO of the Property or any part thereof, occasioned wholly
or in part by any act or omission of NBO, its agents, contractors, invitees or
employees and (ii) the misappropriation or other loss of any funds held in any
of the accounts described in Addendum B to the extent such misappropriation or
other loss was occasioned by any act or omission of NBO, its agents, contractors
or employees. This indemnity shall survive any termination of this Agreement
with respect to any incident occurring during the Term. At all times on and
after the date of this Agreement, NBO will carry and maintain, at its expense, a
non-deductible (i) commercial general liability insurance policy, including
insurance against assumed or contractual liability under this Agreement to
afford protection with respect to personal injury, death or property damage of
not less than One Million Dollars ($1,000,000.00) per occurrence combined single
limit and Two Million Dollars ($2,000,000.00) general aggregate; (ii) all-risks
property and casualty insurance policy, including theft, written at replacement
cost value and with replacement cost endorsement, covering all personal property
of NBO located at the Property, including without limitation, all elements of
the System, including the Kiosk and Counter Unit and (iii) if and to the extent
required by law, worker's compensation insurance policy, or similar insurance in
form and amounts required by law. NBO shall continue in force its Chubb
Executive Protection Policy of insurance, or a similar policy issued by another
insurance company with a Bests rating similar to Chubb's rating. Such Policy
shall contain coverage for employee theft, premises, transit, and depositor's
forgery with respect to money and securities with a limit of not less than Five
Million Dollars ($5,000,000.00) per occurrence with no aggregate limit. NBO and
Customer agree that any proceeds of the Chubb Executive Protection Policy which
relate to funds associated with the Mall Gift Certificates shall be deposited
into an account as directed by Customer so as to cover outstanding Mall Gift
Certificates.
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Commercial general liability and all risks property and casualty
insurance policies evidencing such insurance shall, with respect to commercial
general liability policies, name Customer and/or its designee(s) as additional
insured, and shall be primary and non-contributory. The Chubb Executive
Protection Policy shall name Customer and/or its designee(s) as loss payees. The
commercial general liability policy, all risks property and casualty insurance
policy and the Chubb Executive Protection Policy shall each contain a provision
by which the insurer agrees that such policy shall not be canceled, materially
changed or not renewed without at least thirty (30) days' advance notice to
Customer at the Property management office and with a copy to The Xxxxx Company,
00000 Xxxxxx Xxxxxxxx Xxxxxxx, Xxxxxxxx, Xxxxxxxx, 00000, Attention: Risk
Manager, by certified mail, return receipt requested. A copy of such policies,
or certificates thereof, shall be deposited with Customer by NBO before NBO
shall be permitted to enter the Property.
Neither Customer nor NBO shall be liable to the other Party or to any
insurance company (by way of subrogation or otherwise) insuring the other party
for any loss or damage to any building, structure or other tangible property or
any resulting loss of income or losses under worker's compensation laws even
though such loss or damage might have been occasioned by the negligence of such
Party, its agents or employees. The provisions of this paragraph shall not limit
the indemnification for liability to third parties contained in the preceding
paragraph.
k. Reporting and Audit. Within twenty (20) days of the end of each month,
NBO will provide Customer with a report showing the volume of Mall Gift
Certificate issued during the preceding month and a report showing advertising
revenue and costs, as described in Section 2c. The Mall Gift Certificate report
shall indicate the entire volume of Mall Gift Certificates issued, and will have
a summary of which were issued for cash, credit card, debit card, check, or
otherwise. The Mall Gift Certificate report shall show the required information
for Customer and all other Xxxxx Affiliates which are then issuing Mall Gift
Certificates. The reports will be signed by an authorized officer or agent of
NBO. Customer shall have the right to examine or audit NBO's books and records
relating to the Mall Gift Certificates and advertising revenue and costs (for
the Property, only), at NBO's principal place of business and during normal
business hours, by informing NBO in writing of its desire to do so five (5) days
in advance. Within sixty (60) days of the end of each calendar year during the
Term, NBO will provide Customer with a statement of showing the volume of Mall
Gift Certificates issued during the preceding calendar year and the advertising
revenue generated and costs associated with such advertising during the
preceding calendar year (or, in each instance, a portion of the calendar if this
Agreement was in effect for less than the entire year), which shall be
accompanied by the signed certificate of an independent Certified Public
Accountant stating specifically that (i) s/he has examined the report of those
issuances and revenue/costs for such year, (ii) his/her examination included
such tests of NBO's books and records as s/he considered necessary or
appropriate under the circumstances, and (iii) that such report presents fairly
such issuances and revenue/costs.
l. Gift Certificate Stock and Processing. NBO shall be responsible for
providing to Customer, at NBO's expense, all gift certificate stock necessary to
generate the Mall Gift Certificates. Customer shall have the right to require a
change in the appearance of the stock one time per year upon at least six (6)
months' prior notice. All bank processing fees associated with the processing of
the Mall Gift Certificates shall be paid by NBO.
m. Laws Compliance. NBO shall comply and shall cause the Mall Gift
Certificate Program to comply with all federal, state, regional, county,
municipal and other governmental statutes, laws, rules, orders, regulations and
ordinances applicable to the Mall Gift Certificate Program, including, but not
limited to, applicable escheat statutes.
n. Billing. NBO agrees that all bills to be issued by it to Customer
shall be issued to Customer's address as shown in the first sentence of this
Agreement. All of Customer's bills will be aggregated with the bills of the
other Xxxxx Affiliates which are then issuing Mall Gift Certificates, but the
information pertaining to Customer only will be readily identifiable.
3. AGREEMENT TERM; TERMINATION.
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a. Term. The "Term" of this Agreement shall commence as of
__________________, 2000 and shall terminate _____________, 2003, unless earlier
terminated in accordance with the provisions of Section 5 below.
b. Termination. Upon the termination of this Agreement, NBO and Customer
will no longer issue Mall Gift Certificates through the System. NBO will remove
the Kiosk and the Counter Unit from the Property and will repair any damage to
the Property caused by the removal of the Kiosk and Counter Unit. Unless
Customer has terminated this Agreement due to an Event of Default by NBO in
accordance with Section 5, NBO will continue to process previously issued Mall
Gift Certificates until the expiration date of the last Mall Gift Certificate
issued. If Customer has terminated this Agreement due to an Event of Default by
NBO in accordance with Section 5, Customer shall have the right to direct NBO to
take all necessary steps so that Customer or Customer's designee may process
previously issued Mall Gift Certificates. NBO and Customer will destroy all
unused gift certificate stock in each of their possession.
4. ASSIGNMENT.
a. Assignment by Customer. Customer may delegate, assign, transfer or
encumber its rights, duties, interests or obligations under this Agreement to
any subsidiary or affiliate of Customer or to any person or entity which
acquires the Property. No such transfer or assignment of this Agreement will
constitute a termination of this Agreement. In the event that the Property is
acquired by a person or entity which is not a subsidiary or affiliate of
Customer (a "Third Party") Customer shall not be obligated to assign this
Agreement to such Third Party and the Third Party shall not be obligated to
assume Customer's obligations hereunder. In the event of a Third Party transfer,
Customer shall have the right to terminate this Agreement upon thirty (30) days
notice to NBO. Customer agrees (subject to any confidentiality agreement which
Customer may have with the Third Party) to disclose to NBO the name of and a
contact person associated with the Third Party purchaser so that NBO may contact
such Third Party concerning this Agreement and NBO's services.
b. Assignment by NBO. NBO may not delegate, assign, transfer or encumber
its rights, duties, interests or obligations under this Agreement (each an
"Assignment") except with the consent of Customer. Customer agrees that it will
not unreasonably withhold its consent to a proposed Assignment, provided the
proposed transferee: (i) possesses qualifications equivalent to those of NBO to
operate the business operated by NBO and shall have demonstrated recognized
experience in successfully operating such a business, including, without
limitation, experience in successfully operating a similar quality business in a
first-class shopping center; (ii) will not adversely affect the quality and type
of business operation which NBO has conducted theretofore; (iii) will continue
to operate the business in the same manner as NBO and pursuant to all provisions
of this Agreement; and (iv) assumes in writing, in a form acceptable to
Customer, all of NBO's obligations hereunder and NBO shall provide Customer with
a copy of such document.
5. DEFAULT AND TERMINATION.
The following events shall constitute an "Event of Default":
a. Bankruptcy. The adjudication of either Party as being bankrupt,
insolvent or unable to pay its debts and obligations as they become due or if
either Party places any of its property or assets in liquidation for the purpose
of meeting claims of its creditors or a trustee or receiver is appointed. If any
such adjudication is involuntary, it shall not be an Event of Default hereunder
if such Party is seeking to have the adjudication dismissed and in fact causes
it to be dismissed within sixty (60) days.
b. Failure to Perform. The failure of either Party to perform or fulfill
at the time and in the manner herein provided any duty, obligation or condition
required to be performed or fulfilled by that Party hereunder; provided,
however, that the non-performing Party shall have been given ten (10) days
written notice if such non-performance is the non-payment of money and thirty
(30) days' prior written notice for any other non-performance, specifying the
non-performance or non-fulfillment that it is charged with having committed and
shall have failed to cure such non-performance or non-fulfillment
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within such ten (10) day or thirty (30) day period, as the case may be;
provided, however, in the event of a non-monetary non-performance or
non-fulfillment, there shall not be an Event of Default hereunder if the
defaulting Party shall be diligently pursuing the curing of such non-performance
and in fact completes the cure within sixty (60) days from the date of the
notice.
Upon the occurrence of an Event of Default, the non-defaulting Party
shall have the right to terminate this Agreement upon written notice to the
other Party. If this Agreement is terminated pursuant to this Section, the
defaulting Party nevertheless shall remain liable for all damages which may be
due or sustained by the non-defaulting Party, including, but not limited to,
reasonable attorneys' fees, costs and expenses incurred by the non-defaulting
Party in pursuit of its remedies hereunder.
6. MISCELLANEOUS PROVISIONS.
a. Applicable Law. All matters pertaining to the validity, performance,
construction or effect of this Agreement, and the legal relations between the
Parties, shall be governed by and construed in accordance with the laws of the
State of Utah applicable to agreements made and wholly to be performed in said
State without regard to principles of conflicts of law. Any disputes arising
under this Agreement or the transactions contemplated hereunder shall be
resolved in the state and federal courts residing in Salt Lake City, Salt Lake
County, Utah.
b. Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the Parties with respect to the subject matter hereof, and
supersedes all prior agreements, arrangements and understandings related to the
subject matter hereof. No representation, promise, inducement or statement of
intention has been made by either of the Parties that is not embodied in this
Agreement, and neither of the Parties shall be bound by or be liable for any
alleged representation, promise, inducement or statement of intention that is
not specifically set forth in or referred to herein.
c. No Joint Venture. NBO and Customer are independent contractors. No
agency, partnership, joint venture or employee-employer relationship is intended
or created by this Agreement, and neither party shall hold itself out in a
manner that would indicate any such relationship exists in any matter, including
but not limited to, advertising.
d. Notice. Any notice or other communication required or permitted to be
given hereunder shall be effective upon receipt by the intended recipient at the
address indicated in the introductory paragraph above (or such other address as
either Party shall provide to the other Party by one of the means set forth
hereinbelow). Receipt shall be deemed to have occurred upon the earlier of (a)
the date of actual receipt by the intended Party by registered mail, (b) five
(5) days after such notice is deposited in the United States mail, certified or
registered, postage prepaid and properly addressed, (c) the date such notice is
sent to the other Party by telecopy (with receipt confirmation), provided such
notice is promptly provided to the other Party by United States mail, certified
or registered, postage prepaid and properly addressed, or (d) one (1) business
day after such notice is deposited with a recognized overnight courier service
with instructions for overnight delivery.
e. Force Majeure. Neither Party shall be responsible to the other Party
for non-performance or delay in performance of any of the terms, duties,
obligations or conditions contained in this Agreement due to acts of God, acts
of governments, wars, riots, strikes, accidents or other causes beyond the
control of the Parties. In no event shall financial inability excuse a Party's
performance hereunder.
f. Confidentiality. The Parties agree that the contents and existence of
this Agreement shall be considered confidential and shall not be disclosed to
any third person or entity by either Party except with the prior written
approval of the other Party or upon the order of a court of competent
jurisdiction.
g. Severability. In the event that any provision hereof shall be deemed
in violation of any
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applicable law, rule or regulation, or held to be invalid by any court in which
this Agreement shall be interpreted, the violation or invalidity of any
particular provision hereof shall not be deemed to affect any other provision
hereof, but this Agreement shall be thereafter interpreted as though the
particular provision so held to be in violation or invalid were not contained
herein.
h. Miscellaneous. The above Recitals and all Attachments attached hereto
are deemed to be incorporated herein by reference. Notwithstanding any rule or
maxim of construction to the contrary, any ambiguity or uncertainty in this
Agreement shall not be construed against either Party based upon authorship of
any of the provisions hereof.
IN WITNESS WHEREOF, the Parties have entered into this Agreement
effective as of the Effective Date.
CUSTOMER: NBO:
------------------------- Neighborhood Box Office, Inc.
By: By:
--------------------------------- -------------------------------------
Signature Signature
------------------------------------ -------------------------------------
Name (printed) Name (printed)
------------------------------------ -------------------------------------
Title Title
---------------- ---------------
Date Date
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ADDENDUM A
ATTACHED TO AND FORMING A PART OF THE CONTRACT SERVICES AGREEMENT DATED
__________________, 2000 BY AND BETWEEN NEIGHBORHOOD BOX OFFICE, INC. ("NBO")
AND __________________ ("CUSTOMER")
I. CONVENIENCE FEE. Customer and NBO agree to the following fee structure and
revenue share:
[**]
COUNTER UNIT - $[**] FOR EACH MALL GIFT CERTIFICATE
KIOSK - [**] FOR EACH MALL GIFT CERTIFICATE
INTERNET - TO BE AGREED UPON BY THE PARTIES
CORPORATE - TO BE AGREED UPON BY THE PARTIES
Revenue Share on Convenience Fees:
[**] CUSTOMER and [**] NBO
II. POWER AND TELEPHONE SPECIFICATIONS. The requirement for installation of
power at the Kiosk location is a dedicated 110 Volt, 20-amp circuit, either wall
mount or floor mount, (Customer will be responsible to insure that the power
requirements are installed at the designated Kiosk location prior to
installation of the hardware). The wall mount needs to be within 3 feet of the
center of the Kiosk location and the floor mount needs to be directly under the
Kiosk location, with a 4-inch variance allowed in any direction from the center
of the Kiosk location. The telephone requirement is a Frame Relay Circuit
needing Cat 5-telephone cable with a 4-wire RJ45 connector in a Surface Block.
The connector and housing can be either wall mount or on a pigtail. The wall
mount should be within 2 feet of the Kiosk location and the pigtail should be
between 2 and 3 feet long and not located under the Kiosk installation location.
The installed telephone must terminate at the building "demark" and be properly
identified for connection to the network. Proper coordination will need to occur
between Center Management and NBO's Vice President of Operations.
The Counter Unit will require installation of a Cat 5 cable between the Kiosk
location and the Counter Unit location that is less than three hundred (300)
cable feet. The requirement for installation of power at each Counter Unit
location is a dedicated 110 Volt, 15-amp circuit, either wall mount or floor
mount, but within a reasonable distance from the installation location.
(Customer will be responsible to insure that the power specification is
available at the Counter Unit prior to the installation of the hardware.) The
Counter Unit will share the Frame Relay circuit to the Kiosk.
Customer will need to insure that the Counter Unit has proper ventilation should
the computer be stored below the counter. The Counter Unit will need to be
secured against theft of the hardware. Customer will need to provide to NBO a
site plan that outlines specific location for both the Kiosk and Counter Unit in
order and install the Frame Relay.
[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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Neighborhood Box Office, Inc
ADDENDUM B
Banking Terms
ATTACHED TO AND FORMING A PART OF THE CONTRACT SERVICES AGREEMENT DATED
_____________________, 2000 BY AND BETWEEN NEIGHBORHOOD BOX OFFICE, INC. ("NBO")
AND ____________________ ("CUSTOMER") (the "Agreement").
The following described procedures will be implemented with the financial
institutions after the Agreement is signed by both Parties and prior to the
issuance of any Mall Gift Certificates by NBO.
1. [**]
2. [**]
3. [**]
[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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Neighborhood Box Office, Inc
[**]
4. [**]
5. [**]
6. [**]
7. [**]
8. [**]
[**] ALL SECTIONS MARKED WITH TWO ASTERISKS [**] REFLECT PORTIONS WHICH HAVE
BEEN REDACTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION BY NEIGHBORHOOD BOX OFFICE, INC. AS PART OF A REQUEST FOR
CONFIDENTIAL TREATMENT.
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