1
EXHIBIT 10.1
CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BASED UPON A REQUEST FOR
CONFIDENTIAL TREATMENT; SUCH PORTIONS HAVE BEEN FILED SEPARATELY WITH THE SEC
TICKET CENTER AGREEMENT
THIS TICKET CENTER AGREEMENT ("Agreement") is entered into as of the 1st
day of August, 1998, by and between Ticketmaster-Oregon, an Oregon general
partnership of Xxx Xxxxxx, Xxxxx Orkney, Xxxxx Xxxxxx, Xxxxx Xxxxxxx and Xxxx
Xxxxxxx, and G. I. Joe's, Inc., an Oregon corporation ("Ticket Center"), with
reference to the following facts:
WHEREAS, Ticketmaster is in the business of, among other things,
designing, building, operating and servicing computerized systems for the
purposes of producing, selling, auditing and controlling sales of admission
tickets to public events;
WHEREAS, Ticketmaster is engaged from time to time by, among others,
entertainment artists, concert promoters, theatrical groups, symphonies, operas,
ballets, radio stations, colleges and universities and professional athletic
clubs to produce and sell tickets to events promoted or sponsored by such
individuals or organizations; and
WHEREAS, Ticket Center desires to, and Ticketmaster desires to permit
Ticket Center to, utilize certain aspects of the TM System (as defined in
Section 1.(j) below) and other services of Ticketmaster for the purposes of
producing, selling, auditing and controlling the sale of admission tickets to
such events, said sales being conducted from the Locations (as defined Section
1. (f) below).
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein, the parties hereby agree as follows:
1. Definitions: As used in this Agreement, the following terms shall
have the respective meanings indicated below unless the context otherwise
requires:
(a) Attraction: A sporting event or other entertainment feature
of any nature or description for which Tickets are sold.
(b) Commission: The amount of compensation to Ticket Center
determined in accordance with Section 4(d) of this Agreement.
Commissions shall be the only portion of the total revenues the Ticket
Center collects from the sale of Tickets which are not considered funds
to be held in trust for remittance to Ticketmaster.
(c) Customer Convenience Charge: The amount charged to a Ticket
purchaser by Ticketmaster for the use of the TM System.
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(d) Equipment: Those items of tangible personal property to be
provided by Ticketmaster to Ticket Center pursuant to this Agreement.
(e) Floor Space: The floor space supplied in each Location to
Ticketmaster by Ticket Center for the installation of the Equipment.
(f) Location: The business locations owned or controlled by
Ticket Center. Locations may be added from time to time by mutual
agreement. Locations shall be deleted if no longer owned or controlled
by Ticket Center.
(g) Location Employees: The employees of Ticket Center at a
particular Location.
(h) Payment Schedule: The schedule as set forth in Exhibit B
[sic] attached hereto and incorporated herein, which governs the
remittance of the proceeds of sales of Tickets by Ticket Center to 5.
(i) TM System: The equipment and procedures established and
maintained by Ticketmaster for the purpose of selling, auditing and
controlling sales of Tickets for Attractions.
(j) Ticket: A printed evidence of the right to occupy space at or
participate in an Attraction.
(k) User: Any natural person, partnership, corporation, joint
venture or other entity which operates an Attraction for which Tickets
are sold through the TM System.
2. Equipment and Software.
(a) Ticketmaster shall supply, deliver, initially install,
maintain and service the Equipment at each Location. The Equipment at
each Location shall include such items as are required for the
performance of Ticket Center's obligations hereunder, and such items may
be supplemented or replaced by Ticketmaster in accordance with the
provisions of this Agreement and the standard service procedures of
Ticketmaster. With the exception of those costs paid by Ticket Center in
accordance with the provisions of Section 3(a) hereof, Ticketmaster
shall pay the cost of supplying, delivering and installing the Equipment
at each of the Locations.
(b) Ticketmaster shall provide supporting equipment at a central
computer center at such location or locations as it shall deem necessary
for the operation of the TM System which shall be connected by telephone
lines to the Equipment at each of the Locations. The computer center
equipment will be
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available and operate during the Normal Business Hours of each Location.
Ticket Center shall pay the cost of all telephone line connections
between the central computer center and each of the Locations and all
telephone monthly costs with respect to the operation of the Equipment
during the term hereof.
(c) Ticketmaster shall maintain the Equipment in good serviceable
and operable condition. Maintenance and service costs shall be paid by
Ticketmaster except under the terms and conditions specified herein.
Ticketmaster shall make prompt and reasonable effort to repair or
correct any problems which render the Equipment inoperable. In the event
of the malfunction or inoperability of the Equipment, Ticket Center's
exclusive remedy shall be that Ticketmaster make the necessary repairs,
corrections or replacements. Ticketmaster shall have full and free
access to the Equipment during Normal Business Hours at each of the
Locations for the purpose of making service or maintenance calls. NO
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF
MERCHANTABILITY AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE,
SHALL APPLY TO THE EQUIPMENT OR ANY SOFTWARE. UNDER NO CIRCUMSTANCES
SHALL TICKETMASTER BE LIABLE FOR ECONOMIC, INCIDENTAL OR CONSEQUENTIAL
DAMAGES RESULTING FROM EQUIPMENT FAILURE OR ANY CLAIM TICKETMASTER HAS
BREACHED ITS DUTY TO REPAIR THE EQUIPMENT AS PROVIDED HEREIN.
(d) Ticket Center shall use its best efforts to protect and keep
the Equipment in good working condition. Ticket Center shall promptly
notify Ticketmaster of any malfunction or damage to the Equipment or the
TM System. In the event of damage to or malfunction of the Equipment
caused by abuse, misuse or vandalism on the part of Ticket Center, its
agents, servants, employees or representatives, Ticket Center shall be
responsible for all costs of repairs or replacement.
(e) Ticket Center shall not encumber or cause or permit any liens
to be placed on any item of Equipment. Ticket Center shall give
Ticketmaster immediate notice of any attachment or other judicial
process affecting any item of Equipment and shall advise Ticketmaster of
the exact location of the Equipment.
(f) Neither Ticket Center nor its employees, agents, servants, or
representatives shall alter, change, modify, copy, duplicate or add to
the Equipment without the prior written consent of Ticketmaster. All
alterations and improvements of whatsoever kind and nature shall belong
to and become the property of Ticketmaster. Ticket Center acknowledges
that the TM System and Equipment represent and contain certain
proprietary and confidential data relating to the software and hardware
configurations and the unique methods by which Ticketmaster utilizes the
software and
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hardware to accomplish the overall results of the TM System, and Ticket
Center agrees that nothing of a technical or proprietary and
confidential nature will be copied, duplicated or disclosed to any
person or entity without the prior written consent of Ticketmaster.
(g) Ticket Center shall use the Equipment only for the purposes
specified in this Agreement and shall use and operate the Equipment in
compliance with the laws of the jurisdiction governing the Locations.
Ticket Center shall not move the Equipment from or between the Locations
without the prior written consent of Ticketmaster.
(h) Ticket Center acknowledges and agrees that it has not, and by
the execution hereof, it does not have or will not obtain any title to
the Equipment or any property right or interest, legal or equitable,
therein, except its interest as Ticket Center under this Agreement. The
Equipment and the TM System shall at all times be and remain the sole
and exclusive property of Ticketmaster. Ticketmaster shall place labels
or other identifying signs on each item of Equipment or other property
of Ticketmaster in Ticket Center's possession. Ticket Center shall not
remove, cover, alter or obliterate such labels or signs.
(i) Upon termination of this Agreement or upon termination of a
particular Location, Ticketmaster shall have the right to immediately
remove Ticket Center or said Location, as applicable, from the TM
System. Upon such a termination, Ticket Center shall immediately return
the Equipment to Ticketmaster or make the Equipment available to be
easily retrieved by Ticketmaster. The Equipment shall be in as good
condition as when received by Ticket Center, ordinary wear and tear
alone excepted. If the Equipment is not returned or made available in
such manner, Ticket Center hereby agrees that Ticketmaster may enter any
premises wherein the Equipment is located, remove the same without being
in violation of any trespassing or similar laws, and charge the cost
thereof to Ticket Center.
3. Installation and Operation of Equipment and Software.
(a) Ticket Center shall supply Floor Space to Ticketmaster in
each Location for the proper installation and operation of the Equipment
and the TM System. Ticketmaster shall have the right to approve such
Floor Space, which approval shall not be unreasonably withheld. Floor
Space shall be wired for electricity and telephone services in
accordance with the specifications of Ticketmaster, and Ticket Center
shall pay the cost of providing and maintaining such services during the
term hereof Ticket Center shall equip each Location with suitable
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counter space, partitioning and/or other fixtures necessary to present
an attractive and easily accessible Ticket sales office, and Ticket
Center shall pay the cost of equipping and maintaining such Ticket sales
office. Ticket Center shall have the right to relocate Floor Space upon
giving written notification to Ticketmaster prior to such relocation.
(b) Ticketmaster shall use its best efforts to have each Location
operational as quickly as possible. The date on which the first Location
becomes operational is referred to hereinafter as the "Installation
Date."
(c) During the Normal Business Hours at each Location, Ticket
Center shall staff the Ticket sales office at each Location with
employees for the proper operation of the Equipment and the TM System.
Ticketmaster shall, at its cost, train each Location Employee as to the
operation and care of the Equipment and shall assist in training new
Location Employees if and when needed. Further, Ticketmaster agrees to
provide additional training to Location Employees should additional
training become necessary due to changes in or a modification of the
Equipment or Ticketmaster's method of operation.
(d) Ticket Center shall use its best efforts to sell Tickets and
shall make Tickets accessible to the public during the Normal Business
Hours at each Location of Ticket Center. All sales of Tickets shall be
made by Ticket Center to the general public only, and Ticket Center
shall not utilize the TM System to obtain Tickets for the benefit of
Ticket Center's officers, agents, employees or shareholders.
(e) Ticket Center may only sell Tickets to customers physically
present at a Location. Ticket Center may not accept orders for Tickets
or effect sales of Tickets by telephone.
(f) Ticketmaster shall give Ticket Center reasonable notice of
the date on which Tickets for each Attraction will be available for sale
through the TM Systems.
(g) Scalping or brokering of Tickets by Ticket Center or any
employee or agent of Ticket Center, or the providing of Tickets to third
party scalpers or brokers through preferential sale or otherwise, or the
providing of inside information concerning Attractions, will be
considered to be a material breach of this Agreement and, in the event
of such activity, Ticketmaster may terminate this Agreement immediately.
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(h) Ticket Center shall comply with all policies and procedures
reasonably promulgated by Ticketmaster in relation to sales of Tickets
at ticket centers, and in the event of any breach of any such policy or
procedure, Ticket Center shall be in default under this Agreement.
4. Accounting Procedure for Tickets.
(a) Ticket Center agrees, as Ticketmaster's agent, to produce and
sell Tickets to all Attractions, collect the proceeds from such sales
and remit all proceeds, less commissions to Ticketmaster in accordance
with the provisions of this Agreement and the Payment Schedule set forth
in Exhibit A hereto.
(b) Ticketmaster shall furnish Ticket Center with blank tickets
for sale to customers ("Ticket Stock"). Ticket Center shall be
responsible for the security of the Ticket Stock and risk of loss of the
Ticket Stock shall shift to Ticket Center upon the delivery to Ticket
Center or Ticket Center's authorized representative, agent or employee.
For all ticket sales made through the TM System, Ticket Center shall use
exclusively the Ticket Stock. Ticket Center shall make an accounting to
Ticketmaster for all unused Ticket Stock upon Ticketmaster's request,
and Ticketmaster shall have the right to inspect Ticket Center's
inventory of Ticket Stock during then normal business hours of each
Location as Ticketmaster deems necessary; provided, however, the
inspection shall not be conducted in a manner or during a time that
unreasonably interrupts Ticket Center's sales of Tickets. Ticket Center
shall return to Ticketmaster all Tickets which are returned to or voided
on the TM System or are canceled, defaced, mutilated or otherwise
rendered unsalable. Ticket Center shall be responsible for any and all
damages arising out of or resulting from missing or unaccounted for
Tickets, including, but not limited to, costs of Ticket Stock, printing,
and the face value of any such Tickets, if the face value is known, or
$20.00 per Ticket, if the face value is not known.
(c) Ticket Center shall, as Ticketmaster's agent, charge each
Ticket purchaser the face value of the Ticket as prescribed by
Ticketmaster plus a Customer Convenience Charge as specified by
Ticketmaster. Ticketmaster may change the amount of the Customer
Convenience Charge from time to time by giving Ticket Center notice
thereof in writing or via the TM System, whereupon Ticket Center shall
charge each Ticket purchaser such Customer Convenience Charge, as
adjusted, immediately upon such effective date. Ticket Center may not
change the amount of the Customer Convenience Charge otherwise than at
the direction of Ticketmaster and may not assess any other charge
against a Ticket purchaser.
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(d) Ticket Center agrees its sole compensation for producing,
selling and accounting for Tickets pursuant hereto shall be Commissions
of [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE SEC]
percent of the Customer Convenience Charge collected on each Ticket sold
by Ticket Center, but in no event more than $[CONFIDENTIAL PORTION
OMITTED AND FILED SEPARATELY WITH THE SEC] per Ticket. Ticket Center's
Commission may be deducted by it concurrently with the remittance by
Ticket Center of Ticket proceeds to Ticketmaster in accordance with the
terms of the Payment Schedule.
(e) Ticket Center shall accept only cash (not checks or credit
cards) in payment of Tickets for all Attractions. Notwithstanding the
foregoing, Ticketmaster may permit payment to be made by major credit
card with respect to any Attraction, on notice to the Ticket Center via
the TM System. Ticket Center shall bear any loss occasioned by
acceptance of checks or credit cards in violation of this provision.
(f) All receipts and proceeds from the sale of Tickets except for
Commissions shall remain the property of Ticketmaster, shall be
segregated from Ticket Center's other assets and shall be held in trust
by Ticket Center on behalf of Ticketmaster. Except for commissions,
Ticket Center shall have no right, title or interest in or to the Ticket
proceeds or receipts. Ticket Center shall deposit all proceeds less
commissions once a week in an account to be designated by Ticketmaster.
Ticket Center shall not use any amounts due Ticketmaster as its own
property, or to make loans to itself, or as collateral for loans from
third parties to itself or otherwise, and such funds shall not be
subject to assignment or alienation by Ticket Center or to the claims of
creditors of Ticket Center.
(g) Ticket Center acknowledges and agrees its obligations to
remit and pay to Ticketmaster all receipts or monies due from sold or
unaccounted for Tickets, less the Commission, and the rights of
Ticketmaster in and to such remittance and payment, shall be absolute
and unconditional and shall not be subject to any abatement, reduction,
set off, defense, counterclaim or recoupment due or alleged to be due
to, or by reason of, any past, or present or future claims which Ticket
Center may have against Ticketmaster, or against any person for any
reason whatsoever.
(h) In the event of the cancellation of an Attraction, Ticket
Center shall refund Tickets through its Locations in a manner and in an
amount to be determined by Ticketmaster at the time of refund. Ticket
Center shall not be required to make refunds unless directed in writing
by Ticketmaster to do so.
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5. Term. The term of this Agreement shall commence August 26, 1998, and
shall end on the tenth anniversary thereof. This Agreement shall be renewed for
additional five (5) year terms without any action necessary to be taken by the
parties hereto, unless either party notifies the other party, in writing, no
less than 60 days nor more than 120 days prior to the expiration hereof, of such
party's desire not to renew this Agreement.
6. Exclusivity and Restrictive Covenants.
(a) During the term of this Agreement, Ticket Center shall sell
only Tickets made available to it on the TM System, and no other tickets
of any kind.
(b) During the term of this Agreement, Ticket Center, any
affiliate of Ticket Center, or any corporation, firm, partnership,
company or entity which Ticket Center controls or is controlled by or is
under common control with Ticket Center shall not compete in any manner
whatsoever, directly or indirectly, with Ticketmaster or with any
subsidiary or affiliate of Ticketmaster with respect to the TM System or
any business or activity of Ticketmaster or of any subsidiary or
affiliate of Ticketmaster, which is of a type which Ticketmaster was
engaged in at the time of the execution hereof or of a type which it may
engage in during the term hereof, in those counties in which a TM System
is currently in operation or which may be in operation during the term
hereof.
(c) In the event Ticketmaster or Ticket Center shall cease to do
business, this Agreement may be terminated by Ticketmaster upon full and
complete settlement of all obligations between the parties hereto.
(d) Termination of this Agreement by either party shall not
terminate the continuing confidentiality obligations imposed upon Ticket
Center by the terms of this Agreement.
(e) If any provision hereof is adjudicated invalid or illegal or
otherwise unenforceable, but such provision may be made enforceable by a
limitation or reduction of its scope, Ticket Center agrees to abide by
such limitation or reduction as may be necessary to make such provision
enforceable to the fullest extent permitted by applicable law.
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7. Default by Ticket Center.
(a) If Ticket Center shall fail in the performance of any term,
covenant or condition described herein, other than those terms,
covenants and conditions described in Section 7(b), and such failure to
perform shall continue for a period of ten (10) days after Ticket Center
has received written notice thereof from Ticketmaster of such failure,
then any such failure shall constitute an ordinary default. Further,
from and after the date on which Ticketmaster shall have notified Ticket
Center of its default, the obligations of Ticketmaster hereunder shall
be suspended until such time as Ticket Center cures such default.
(b) If Ticket Center assigns, mortgages or encumbers, in any
manner whatsoever, its interest under this Agreement, or if Ticket
Center or any Location makes a bulk transfer of inventory and equipment,
or if Ticket Center shall dissolve or commence winding up its activities
to effect dissolution, liquidation or termination, or shall make an
assignment for the benefit of creditors, or shall admit, in writing, its
inability to pay its debts as they become due or shall file a voluntary
petition in bankruptcy, or shall be adjudicated a bankrupt or insolvent
or shall file any petition or answer seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or
similar relief under any present or future statute, law or regulation,
or shall file any answer admitting or not contesting the material
allegations of a petition filed against it in any such proceeding, or
shall seek, consent to, or acquiesce in, the appointment of any trustee,
receiver or liquidator of Ticket Center or of all or any substantial
part of the properties of Ticket Center, then and in any of such events,
Ticket Center shall be in immediate default hereunder, and Ticketmaster
shall not be required to give written notice to Ticket Center of such
default.
(c) In the event of any ordinary or immediate default by Ticket
Center, Ticketmaster may, at its option, seek any one or more of the
following remedies:
(i) Disconnect all terminals, Equipment and services from
the central computer center to any or all Locations.
(ii) Take immediate peaceful possession of the Equipment
wherever same may be located without demand, notice, or court order.
(iii) Xxx for and recover any and all damages and losses
resulting from Ticket Center's failure to perform the requirements of
this Agreement.
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(iv) Obtain injunctive relief for any breach or threatened
breach of the covenants contained in Section 2(f) or Section 6 hereof
(v) Terminate this Agreement.
(vi) Pursue any other remedy at law, in equity or
otherwise.
No remedy referred to herein is intended to be exclusive, but
each shall be cumulative and in addition to any other remedy above or
otherwise available to Ticketmaster at law, in equity or otherwise.
8. Default by Ticketmaster.
(a) If Ticketmaster shall fail in the performance of any term,
covenant or condition described herein and such failure to perform shall
continue for a period of ten (10) days after Ticketmaster has received
prior written notice thereof from Ticket Center of such failure, then
such failure shall constitute a default.
(b) In the event of any default by Ticketmaster, Ticket Center
may, at its option, seek any one or more of the following as its sole
remedies:
(i) Terminate this Agreement.
(ii) Notify Ticketmaster to pick up the Equipment from the
Locations and cease all services hereunder.
9. Insurance.
(a) Ticket Center shall, at its own expense, provide and
maintain, at all times during the term hereof, insurance to protect the
Equipment against loss caused by fire, extended coverage, vandalism,
malicious mischief and theft, with a policy limit of at least $5,000 per
Equipment set-up per Location, or if greater, the full replacement value
of the Equipment as determined by Ticketmaster. Should Ticket Center
become unable to provide or maintain such insurance coverage, Ticket
Center shall promptly notify Ticketmaster in writing prior to the
expiration of any such coverage, and, thereafter, Ticketmaster shall
have the right, but is not obligated, to provide insurance coverage for
the occurrences specified above and charge Ticket Center the costs of
such insurance coverage.
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(b) Ticket Center shall provide, at its sole expense, any and all
other forms of insurance, including, but not limited to, public
liability and property damage insurance, required for its protection and
the protection of Ticketmaster. Ticket Center shall indemnify and hold
Ticketmaster harmless from and against any and all risks, claims,
liabilities, expenses (including reasonable attorneys' fees) or causes
of action arising from Ticket Center's use, possession or operation of
the Equipment, except to the extent of damages caused by the negligence
of Ticketmaster in the repair or maintenance of the Equipment.
(c) All insurance provided and maintained by Ticket Center shall
be in such amounts, under such forms of policies, upon such terms, for
such periods and written by such companies or underwriters as
Ticketmaster may approve, in all cases naming Ticketmaster as an
additional named insured under the policy. All policies of insurance
shall provide for at least ten days prior written notice of cancellation
to Ticketmaster. Ticket Center shall furnish Ticketmaster with
certificates of such insurance or other evidence satisfactory to
Ticketmaster as to its compliance with the provisions of this Section.
Ticketmaster may act as attorney for Ticket Center in making, adjusting
and settling claims under and canceling such insurance and endorsing
Ticket Center's name on any drafts drawn by insurers. Notwithstanding
the foregoing, Ticketmaster may not settle any claim which would result
in the imposition of additional liability on Ticket Center without the
consent of Ticket Center.
(d) Ticket Center shall, in the event of loss, damage, theft or
destruction of Equipment covered by insurance pursuant to the terms of
this Section 9, promptly remit to Ticketmaster all proceeds received on
account thereof. In the event that such loss, damage, theft or
destruction of Equipment is not covered by insurance pursuant to the
terms of this Section 9, or to the extent of any deficiency in such
insurance coverage, Ticket Center shall bear the risk of loss, damage,
theft or destruction of such Equipment.
10. Advertising.
(a) Ticket Center agrees to permit Ticketmaster to use Ticket
Center's business name, logo and symbol and/or the business names of the
Locations in any advertising or promotion which Ticketmaster may do to
promote Ticket sales at such Locations.
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(b) Ticketmaster shall have the right to advertise or to sell
advertising to be placed on the back side of the Tickets and/or Ticket
envelopes. Advertising printed on Tickets or Ticket envelopes shall be
solely at the discretion of Ticketmaster; provided, however, the
advertiser(s) and advertising shall not, directly, be in competition
with Ticket Center. Ticketmaster shall receive the income derived from
such advertising, and Ticket Center shall have no claim or interest in
such income.
(c) Ticket Center may, during the term hereof, provide and place
advertisements in any form of media Ticket Center shall desire,
advertising the availability of Tickets utilizing the TM System at each
of the Locations. In all such advertisements, Ticket Center shall ensure
that the name "Ticketmaster", the logo of Ticketmaster then in use and
the central telephone number of Ticketmaster are displayed in the
advertisement, as well as the address of all Locations where the Tickets
may be purchased.
11. Indemnity. Ticket Center shall indemnify Ticketmaster against, and
hold Ticketmaster harmless from, any and all claims, actions, damages, expenses
(including reasonable attorneys' fees), obligations, liabilities and liens
imposed on or incurred by or asserted against Ticketmaster or its successors or
assigns, or any joint venturer in Ticketmaster occurring as a result of Ticket
Center's management, operation, or use of the Equipment or the TM System.
Ticketmaster shall indemnify Ticket Center against, and hold Ticket Center
harmless from, any and all claims, actions, damages, expenses (including
reasonable attorneys' fees), obligations, liabilities and liens imposed on or
incurred by, or asserted against Ticket Center or its successors or assigns
arising out of any claim for patent, trademark or copyright infringement on the
Equipment or the TM System or arising out of negligent maintenance or repair of
the Equipment by Ticketmaster.
12. No Joint Venture. The relationship of Ticketmaster and Ticket Center
hereunder shall in no way be construed to create a joint venture or partnership,
or to constitute Ticketmaster or Ticket Center as an agent or employee of the
other for any purpose other than as set forth herein.
13. Assignment and Sublease. Without the prior written consent of
Ticketmaster, Ticket Center shall not (a) assign, transfer, pledge or
hypothecate, the Equipment or any part thereof, or any interest therein or (b)
permit the Equipment or any part thereof to be used by anyone other than Ticket
Center or the Location Employees. Provided, however, upon giving prior written
notice to Ticketmaster, Ticket Center may assign its rights hereunder to any
other party with the prior written consent of Ticketmaster, which consent shall
not be unreasonably
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withheld, provided such assignment shall not relieve Ticket Center of any of its
obligations hereunder. Any assignment, transfer, pledge or hypothecation for
which consent is required hereby and which is made without such consent shall be
void.
14. Miscellaneous.
(a) Notices. Any notices permitted or required under this
Agreement shall be given by personal delivery, deposited in the United
States mail, postage fully prepaid, return receipt requested, addressed
to the parties at the addresses set forth below or any other address as
any party may, from time to time, designate by notice given in
compliance with this section, facsimile transmission or any other means
which results in actual notice.
(b) Effect of Waiver. No delay or omission to exercise any right
or remedy accruing to Ticketmaster upon any breach or default of Ticket
Center shall impair any such right or remedy or be construed to be a
waiver of any such breach or default; nor shall any waiver of any single
breach or default be deemed a wavier of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or
approval on the part of Ticketmaster of any breach or default under this
Agreement, or of any provision or condition hereof, shall be in writing
and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement, or by law or in
equity or otherwise afforded Ticketmaster, shall be cumulative and not
exclusive.
(c) Attorneys' Fees. In the event of any action at law or in
equity in relation to this Agreement, the prevailing party shall be
entitled to a reasonable sum for its attorneys' fees.
(d) Severability. In the event any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement,
but this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
(e) Binding Effect. The terms, conditions, provisions and
undertakings of this Agreement shall bind and benefit each of the
parties and their respective successors and permitted assigns.
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(f) Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Oregon.
(g) Additional Documents. Each of the parties hereto agrees to
execute and deliver such additional and further documents and
instruments as may be necessary or appropriate to carry out the intent
and purposes of this Agreement.
(h) Amendments. This Ticket Center Agreement shall not be amended
without the mutual consent of the parties hereto, which consent shall be
evidenced by a written amendment to this Agreement executed by the
parties.
(i) Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be an original and all
of which together shall constitute one and the same agreement.
(j) Suspension. The obligations of the parties hereunder shall be
suspended or, if applicable, of no further force or effect, to the
extent that they are hindered or prevented from complying therewith
because of labor disturbances, including strikes and lockouts, acts of
God, fires, storms, accidents, failure of the manufacturer to deliver
any unit of Equipment, shortage of parts for the repair and maintenance
of the Equipment, governmental regulations or interference or any cause
whatsoever not within the sole control of the party who is unable to
perform.
(k) No Representations Regarding Attractions. Ticketmaster does
not, by the execution of this Agreement and the delivery of the
Equipment and Tickets, make any representations or warranties of any
kind whatsoever with respect to the number and/or the nature of
Attractions for which Tickets are or will be sold through the TM System.
(l) Representations Regarding Authority. Ticket Center represents
and warrants to Ticketmaster Ticket Center has all requisite authority
and has taken all requisite action to execute and perform this Agreement
and the execution and performance of this Agreement by Ticket Center
will not (with or without the giving of notice or the passage of time)
conflict with, violate or breach any law, statute, rule or regulation,
Ticket Center's governing instruments or any agreement or contract to
which Ticket Center is a party or by which it or its assets are bound.
PAGE 14 - TICKET CENTER AGREEMENT
15
(m) Effective Date. This Agreement is effective as of August 1,
1998.
TICKETMASTER-OREGON, INC., G. I. JOE'S, INC. an Oregon General Partnership an
Oregon Corporation
By: /s/ Xxx Xxxxxx By: /s/ Xxxx Xxxxxxx
-------------------------- --------------------------------
XXX XXXXXX XXXX XXXXXXX
Its: Managing Partner Its: President
Address: Address:
0000 X.X. Xxxxxx Xxxxxx 0000 Xxxxxxxx Xxxx
Xxxxx 000 Xxxxxxxxxxx, XX 00000
Xxxxxxxx, XX 00000
Facsimile (000) 000-0000
Facsimile (000) 000-0000
with a copy to:
Xxxxx XxXxxxxx, Esq.
Brownstein, Rask, Arenz,
Sweeney, Xxxx & Grim, LLP
0000 X.X. Xxxx Xxxxxxxx
Xxxxxxxx, XX 00000
Facsimile (000) 000-0000
PAGE 15 - TICKET CENTER AGREEMENT
16
EXHIBIT A
PAYMENT SCHEDULE
Ticket Center shall make a daily accounting for Ticket sales and
unaccounted for Tickets based on computer, cash and related sales reports for
each Location. During the term of this Agreement, Ticket Center shall remit to
and pay Ticketmaster in cash the aggregate amount for all Ticket sales, plus the
Customer Convenience Charge for all such Ticket sales pursuant to Section 4(c),
plus the aggregate amount due for unaccounted for Tickets calculated pursuant to
Section 4(b), less the amount which Ticket Center is entitled to deduct pursuant
to Section 4(d), no later than Friday of each week for sales generated during
the week ending on the previous Saturday.
