AGREEMENT
This Agreement made and entered this 19th day of March 1999, by and between
VisitCom, Inc. 0000 X. Xxxxxx Xxx. Xxx Xxxxx, XX 00000 a Nevada corporation
("VisitCom") and The Venetian Casino Resort, LLC, 0000 Xxx Xxxxx Xxxx. Xxx
Xxxxx, XX 00000 ("Location"), each individually a "Party" and collectively the
"Parties."
WITNESSETH
WHEREAS, VisitCom with licensing rights with Ticketmaster, Inc. who has
developed and copyrighted a computerized ticketing system (the "System") for use
in selling show tickets, event tickets, sightseeing tours and other event or
performance admission tickets to the general public (collectively "Tickets");
and,
WHEREAS, VisitCom is authorized by Ticketmaster to lease the System to Location
(Exhibit "A") and is willing to lease the System to Location and Location is
desirous of leasing the System from VisitCom.
NOW, THEREFORE, in consideration of the above and of the terms, covenants and
conditions set forth herein, and other good and valuable consideration, receipt
of which is hereby acknowledged, the Parties hereto covenant and agree as
follows:
1. RECITALS INCORPORATED: The recitals set forth hereinabove are hereby
incorporated and merged into this Agreement as if repeated herein in full.
2. USE OF SYSTEM AND EQUIPMENT TO BE LEASED TO LOCATION BY
VISITCOM: For the consideration, and upon the terms and conditions set forth
herein, VisitCom hereby leases the use of its System to Location. Location
recognizes and agrees that the System shall remain under the sole and exclusive
control of VisitCom at all times during the term of this Agreement and that,
pursuant to the terms hereof, Location is only acquiring computer access (via
modem) to the information maintained in the System by VisitCom. During the term
hereof, Location shall be entitled to use the System to print Tickets in
VisitCom's inventory, sell said Tickets to the public and print and sell
Venetian tickets. Location shall not sell non-Venetian tickets in the VisitCom
inventory at a greater price than indicated by VisitCom.
(a) Equipment Required: VisitCom will provide Location with the
following equipment (on a per-workstation basis) at a monthly rental fee as
outlined in Section 5(a) herein:
1. Two (2) Computer terminals.
2. Two (2) Ticketmaster CPU/Thermal ticket printers.
3. Two (2) Modems.
4. All Necessary cables.
5. Two (2) 110 VAC surge suppressers.
6. Blank Ticket stock, in a format and design
preapproved by Location, pursuant to Location's
ongoing needs throughout the life of this Agreement.
7. Two (2) computer work stations.
Location hereby covenants and agrees that the equipment furnished to it by
VisitCom pursuant to the terms of this Agreement shall forever remain the
property of VisitCom and is only being provided to Location to facilitate the
terms of this Agreement. Location further agrees not to take any action which
may impede or impair VisitCom's title to said equipment nor allow any lien or
charges to be placed against said equipment. Equipment is to be provided to
Location by VisitCom in good working condition and, but for reasonable wear and
tear, Location shall keep equipment in same condition during the term of this
agreement. (Refer to Section 4 for equipment maintenance responsibilities.) In
the event that, through normal wear and tear, said equipment becomes inoperative
during the term of this agreement, it shall be replaced by VisitCom at its sole
and exclusive expense.
(b) Additional Expenses: Location agrees that it shall be solely
responsible for the cost of acquiring and installing telephone lines, electrical
outlets and/or any other cost associated with Location's use of the System
including, but not limited to, the cost of personnel necessary to operate the
System at Location.
3. TERM OF AGREEMENT: This Agreement shall be for twenty-four (24) months, the
term commencing on the 1st day of May 1999. Except as otherwise set forth
herein, either Party, upon thirty (30) days written notice, may cancel this
Agreement at any time.
4. TRAINING AND MAINTENANCE: VisitCom agrees to provide on-site training in the
use of the System to Location's designated employees, at no cost to Location.
Additionally, during the term of this Agreement, VisitCom shall maintain the
computer hardware and software provided to Location on an "as needed" basis at
no cost to Location, unless the repairs are necessitated by the malicious acts
of Location, its agents, employees, servants or invites, in which event Location
shall solely be responsible for the cost of any necessary repairs at the rate of
$95.00 per hour plus the actual cost of replacement parts.
5. FEES PAYABLE BY LOCATION: In consideration of the license of hardware and
software to Location and VisitCom's continuing services to be performed in
connection herewith, VisitCom shall be entitled to a per Ticket service fee on
all non-Venetian Tickets sold by the Venetian from VisitCom's inventory. The
amount of the Service Fee shall be $3.50 per Ticket. Location shall retain the
Ticket commissions less any credit card fees. The current credit card "merchant
discount" fee is 2.25% of the amount of each transaction processed and is
subject to fluctuation up to 1% or higher.
6. PREMIUM TICKETS: VisitCom shall exclusively provide to Location any Tickets
that become available to it, but are not part of VisitCom's inventory,
hereinafter "Premium Tickets" & Concerts to location. Any commission fees
generated thusly shall be shared 75% VisitCom and 25% Location.
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7. REPORTING: VisitCom will provide Location with daily and weekly sales
reports.
8. UPDATE OF SYSTEM INFORMATION: VisitCom will utilize its best efforts to
insure that the information in the System is current, accurate, and up-to-date
at all times.
9. SALE OF TICKETS NOT INCLUDED IN SYSTEM PROHIBITED: Location
agrees that all non-Venetian events in VisitCom's inventory shall be sold
through the System. In the event that Location will make every effort to notify
VisitCom of the event's existence and, if VisitCom elects at its sole
discretion, VisitCom can add the event to the System.
10. NO AGENCY, PARTNERSHIP OR JOINT VENTURE: Location expressly
recognizes and agrees that even though the terms of this Agreement grant it
access to the System, Location is, and shall always remain, an independent
contractor and no form of agency, partnership, joint venture or the like shall
be created or result by virtue of the terms of this Agreement or Location's
access to the system. The Parties further expressly acknowledge that they have
no authority whatsoever to act for each other in any matter nor to bind or
commit each other to any act or course of conduct whatsoever.
11. NO MISREPRESENTATION, ADHERENCE TO RULES: The Parties further agree that
during the term of this Agreement, they, as well as their respective employees,
servants and agents shall take no action or make no statement or the like which
misrepresents, or tends to misrepresent, the other or damage, or tend to damage,
the other's relationship with their respective employees, agents, associates,
customers, suppliers, event sponsors, locations or venues. Additionally, during
the term of this Agreement, Location hereby agrees to be bound by, and to adhere
to, VisitCom's ticket sales, refund and exchange policy which provides that
VisitCom refunds/exchanges tickets up to one (1) hour prior to block release
(5:00 PM) for that day's event.
12. TICKETING: VisitCom, through its relationship with TicketMaster, will
provide top quality ticketing services to Location. Issued Tickets will be
pre-assigned seats for all show rooms that have assigned seats. In addition, the
seats assigned shall be very good to excellent in respect to each showroom.
13. OTHER EVENT TICKETING: VisitCom will, at its expense, customize other event
ticketing software as proscribed by Location to accommodate its individual
software ticketing needs.
14. DEFAULT BY LOCATION: Location hereby expressly agrees that its default of
any of the terms and provisions of this Agreement, including but not limited to
the payment of any sums to VisitCom when due, shall constitute a material breach
of this Agreement. Upon any material breach, and after providing Location with a
thirty (30) day notice to cure, VisitCom may terminate this Agreement, restrict
Locations access to the System and retake and repossess all of the equipment
provided to Locution pursuant to the terms hereof Upon termination, Location
hereby agrees to pay all undisputed sums then due VisitCom within five (3)
business days following termination.
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15. TRADE SECRETS, COPYRIGHT, NON-DISCLOSURE: Locution expressly recognizes,
covenants and agrees that the information contained in the System constitutes
privileged and confidential trade secrets. Location further recognizes,
covenants and agrees that VisitCom through Ticketmaster has copyrighted the
System and possesses valid and lawful copyrights rights in and to the
information contained in the System. At all times during the term of this
Agreement, Location shall fully protect and preserve the trade secret and
copyright rights of VisitCom and shall not, under any circumstances, disclose
the contents or method of operation of the System to any unauthorized third
party. The Parties covenant that they will treat all information received from
each other as they would the most confidential proprietary informa tion. Any
breach of this Section shall constitute a material breach of this Agreement and
shall further entitle the non-breaching Party to immediately cancel this
Agreement. Further, upon such termination, the breaching Party shall be liable
in damages or otherwise for all damages sustained by the non-breaching Party as
the result of Location's breach, including costs and actual attorney's fees
incurred or relating to the breach.
16. FAILURE OF, OR INTERRUPTION TO, SYSTEM: VisitCom shall not be liable to
Location in any regard during the term of this Agreement, the System fails, is
interrupted, or ceases to function in any manner. Location expressly recognizes
and agrees that in the event of such failure or interruption, VisitCom's sole
responsibility shall be to apply its best efforts to return the System to its
full operating capacity as rapidly as possible. However, it is the expectation
of the Parties that VisitCom continually provide services throughout the term of
this Agreement. In the event that VisitCom fails to provide said services, for
any reason (but for brief periods of service interruption not to exceed
seventy-two (72) hours), Location may terminate the Agreement. Upon termination,
Location agrees to pay all undisputed sums then due VisitCom, but nothing more.
17. AGREEMENT NOT ASSIGNABLE: This Agreement is not assignable by either Party
under any circumstances without the prior written consent of both Parties. Said
consent may be withheld by either Party and for any reason or no reason.
18. ENTIRE AGREEMENT: This is the entire agreement between VisitCom and Location
and supersedes all prior agreements or understandings with respect to the System
and/or the Parties' rights or remedies available at law. No alteration or
modification to the terms of this Agreement shall be valid unless signed in
writing by VisitCom and Location. In interpreting this Agreement, no rule of
construction shall be employed which may cause this Agreement to be more
strictly enforced against its drafter.
19. PARTIES BOUND: This Agreement shall be binding upon and inure to the benefit
of the Parties hereto, their heirs, executors, representatives, successors and
where permitted, assigns.
20. NOTICES: Whenever any notice is required or permitted to be given pursuant
to the terms of this Agreement, said notice shall be given in writing and shall
be presumed received three (3) days after deposit into the United States mails,
postage prepaid, certified return receipt or faxed.
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21. ATTORNEY FEES: In the event any Party to this Agreement commences legal
proceedings against any other Party to this Agreement, to enforce the terms
hereof, to declare rights hereunder or to dispute, question or raise any
question of fact, law or issue set forth in and resolved by the express terms of
this Agreement, as the result of a breach of any covenant, condition or
representation of this Agreement, or for any other reason, the prevailing Party
in any such proceeding shall be entitled to recover from the losing Party, its
costs of suit, including attorney's fees.
22. GOVERNING LAW: This Agreement has been entered into and executed in any
and/or all of the states and/or foreign countries as indicated directly above
the signature lines for the respective Parties executing this Agreement. Since
the Parties to this Agreement are so widely diverse geographically, as partial
consideration for the execution of this Agreement, the Parties hereto,
individually, jointly and collectively, hereby expressly acknowledge and agree
that for the ease and convenience of such Parties hereto, this Agreement shall
be interpreted in accordance with the laws of the State of Nevada and further
that in the event of dispute, jurisdiction and venue for the resolution of such
dispute shall properly lie in the state or federal courts of the County of
Xxxxx, State of Nevada.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
the day and year first above written.
VisitCom LOCATION
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By: By:
Title: Title:
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