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EXHIBIT 6.h
Neighborhood Box Office, Inc
The Company has entered into agreements with 8 malls independently
managed. The following list describes each mall. Following the list is a form of
common agreement for each mall.
Independents (8 Centers) Contract Term -
Property Name Location
------------- --------
Xxxxxx Ridge Miami, FL
Fashion Outlet Las Vegas, NV
Foothills Mall Tucson, AZ
Monmouth Mall Xxxxx, NJ
Lincoln Mall Madison, IL
Mall Of Memphis Memphis, TN
Shops At Northridge Chicago, IL
Denver Pavilion Denver, CO
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Contract Services Agreement
THIS CONTRACT SERVICES AGREEMENT (this "Agreement") is entered into
effective as of August 21, 2000 (the "Effective Date") by and between The Gift
Certificate Company (TGCC) a wholly owned subsidiary of 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 XXXXXX RIDGE
MALL ("Customer") with an address at 00000 XXXXX XXXXX XXX, XXXXX, XX 00000,
TGCC and Customer are sometimes each referred to herein as a "Party" and
collectively the "Parties."
RECITALS:
A. TGCC 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 a
regional shopping center known as XXXXXX RIDGE MALL located in MIAMI, FL, (the
"Property").
C. The Parties desire to enter into a relationship whereby TGCC will
make available to and install its gift certificate distribution machine (a
"Counter Top Unit"), Call Center fulfillment via telephone toll-free at
1-877-GIFT-TO-GO (443-8864), and optional Internet fulfillment 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 TGCC the exclusive right to
offer and issue gift certificates (the "Mall Gift Certificates") which are
redeemable at all retail establishments located at the Property through the
"System" and grants to TGCC a license to install the System at the Property, for
the Term (defined below) and as further described in this Agreement. During the
Term, TGCC will also have the exclusive right to issue all Mall Gift
Certificates through the Internet, at retail points in the mall and via
telephone to individual and corporate customers.
b. Utility Access and Service. Customer will provide, or cause to be
provided, at points in the Customer's "Customer Service Booth" the facilities
necessary to enable TGCC 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 and all
on-going fees will be at Customer's sole cost and expense. Such installation
shall include coordination with TGCC.
c. Advertising. Customer agrees to advertise the Mall Gift Certificates
at the Property and assist TGCC 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 TGCC,
the personnel necessary to (i) periodically monitor the inventory of blank gift
certificate stock , (ii) restock the blank gift certificate paper stock as
needed and (iii) notify TGCC 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 TGCC in performing TGCC's periodic maintenance and
diagnostic procedures on the Counter Top Unit to determine if and when any
periodic or preventative maintenance is needed or if a TGCC designated service
organization should be called. TGCC will provide, or cause to be provided, all
necessary maintenance and repair within Twenty-four (24) hours of Customer's
request therefor.
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Customer agrees to make available at the Property personnel to assist users of
the System in purchasing Mall Gift Certificates at the customer service counter.
TGCC will provide training to personnel.
e. Financial Responsibility. Customer accepts full financial
responsibility for the collection of all funds associated with the issuance of
Mall Gift Certificates at the TGCC Counter Top Unit. At the conclusion of each
business day, Customer will assure that the amounts collected for such business
day are deposited in (The "Depository Account") (whether by cash or credit/debit
card funds) and will assure the amounts deposited, plus amounts in transit from
credit cards, correspond to the value of the Mall Gift Certificates issued for
such day. In the event that TGCC 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 TGCC, Customer will deposit
sufficient funds to cover the shortage into the Depository Account within (15)
fifteen days following the discovery of the shortage.
f. Credit/Debit Card Fees. Customer agrees to reimburse TGCC for all
credit card fees associated with the issuance of Mall Gift Certificates. TGCC
will bill such credit card fees to Customer at the same rate charged to TGCC by
the credit card company. Said billing statements will be sent directly to the
Customer's management office unless otherwise directed by the Customer. Customer
will reimburse the fees to TGCC net 15 days after receiving monthly billing
statements. Should these rates change, TGCC will provide a new rate structure to
Customer. Current credit/debit card rates are disclosed in Addendum A lll.
g. Gift Certificate Stock and Bank Processing. TGCC will provide to
Customer, gift certificate stock and document printing at [**] and bank
processing at [**] per document for each gift certificate redeemed. Said fees
will be payable fifteen (15) days following the end of each calendar month.
h. Software Licensing Fee. TGCC will provide proprietary software for
Counter Top Unit including maintenance and upgrades at a charge to the Customer
of [**] per month. Said fees will be payable net fifteen (15) days following
the receipt of billing statement.
j. Internet. Customer has the option of, and TGCC will cooperate in
designing and implementing a so-called "HTML Frame" which will allow visitors to
Customer's website the opportunity to obtain Mall Gift Certificates via the
Internet. Customer will provide TGCC with names of Customer's website
administrators in order to complete all programming requirements. Customer will
pay for all programming costs to establish the "HTML Frame" in Customers website
and TGCC will pay for programming costs required for TGCC to gain access to and
connect with Customer's websites. TGCC will charge a one-time fee of [**] for
the Internet connection and an on-going fee of [**] per month for website
updating and maintenance. TGCC agrees to provide fulfillment on each order that
is transacted through the Internet with shipment direct to the consumer or it's
designee.
k. Relocation. Customer shall have the right at any time during the Term
to cause TGCC to relocate the Counter Top Unit to another mutually agreeable
location in the Property upon giving TGCC 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 Counter Top Unit.
TGCC shall provide the technical expertise, via telephone to assure that the
Counter Top Unit is functioning properly following the relocation.
2. RIGHTS AND OBLIGATIONS OF TGCC.
a. The System. TGCC will install the System at the Property 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
Counter Top Unit using cash, credit/debit card. TGCC will cause
[**] 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
the Counter Top Unit to be fully operational and activated. Customer shall have
the right to request the installation of an additional Counter Top Unit as part
of the System, and TGCC shall provide such additional Counter Top Unit to
Customer for such periods of time as are requested by Customer, from time to
time, at a cost to Customer of [**] per month, plus all shipping costs, within
45 days following Customer's request therefor.
The current System hardware for the Counter Top Unit, will become the
exclusive property of the Customer, once the sum of [**] plus shipping costs,
have been received from Customer by TGCC, and will remain its property
throughout the Term and thereafter. TGCC is and shall be the sole owner of the
tradename "The Gift Certificate Company" and all other tradenames, trademarks
and copyrights used now or in the future in connection with the System. TGCC
retains all rights to the System software it has developed. Software supplied
with the System may not be copied, sold or used except as authorized by TGCC.
b. Competing Installations. Customer understands and agrees that TGCC
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.
c. Advertising. TGCC 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. TGCC 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 TGCC 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, TGCC 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. TGCC
will remit to Customer one-third (1/3) of the net revenues generated by such
advertising, which shall be the gross revenues generated by the advertising less
TGCC's costs directly attributable to the solicitation of such advertising.
d. Maintenance and Training. During the Term TGCC 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 Counter Top Unit. TGCC 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. TGCC will also conduct training sessions via telephone, as requested
and approved by Customer, for representatives of the Property's retail
establishments.
e. Convenience Fees. Convenience fees will be charged for the Mall Gift
Certificates as 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,
TGCC 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. TGCC will guarantee the redemption funds
to the retail establishment as long as said establishment follows the TGCC Mall
Gift 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. Customer through Automated
Balance Reporting may monitor all funds deposited into the bank account at any
time via modem for a monthly fee of approximately $75.00 (Subject to change), 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
[**] 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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accounts will be established by TGCC. Each said account shall clearly indicate
that Customer and/or TGCC, 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. TGCC 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 TGCC. At the conclusion of each business day, TGCC will assure that the
amounts collected for such business day are deposited in the Depository Account.
(whether by credit/debit card funds) correspond to the value of such Mall Gift
Certificates issued for such day. In the event that TGCC 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 TGCC,
TGCC will cause the Depository Account to have sufficient funds to cover the
daily shortage against the outstanding Mall Gift Certificates within thirty-days
following the discovery of the shortage.
i. Unredeemed Mall Gift Certificates. TGCC shall be responsible for and
will cause compliance with all applicable local abandoned property or escheat
laws. Any balance of unredeemed Gift Certificates remaining after compliance
with all applicable laws shall be paid to TGCC as fees for services provided by
TGCC pursuant to this Agreement.
j. Insurance; Indemnity. TGCC 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 TGCC of the Property or any part thereof, occasioned wholly
or in part by any act or omission of TGCC, its agents, contractors, invitees or
employees and (ii) the misappropriation or other loss of any funds held in any
of the accounts to the extent such misappropriation or other loss was occasioned
by any act or omission of TGCC, 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, TGCC 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 TGCC
located at the Property, including without limitation, all elements of the
System, including the Counter Top 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. TGCC 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. TGCC 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.
Commercial general liability and all risks property and casualty
insurance policies evidencing such insurance shall, with respect to commercial
general liability policies, TGCC shall be primary and 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 XXXXXX
RIDGE Mall with an address at 00000 XXXXX XXXXX XXX, XXXXX, XX 00000, Attention:
Director of Operations,
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by certified mail, return receipt requested. A copy of such policies, or
certificates thereof, shall be deposited with Customer by TGCC.
Neither Customer nor TGCC 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, TGCC 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. The reports will be signed by an authorized officer or agent of
TGCC. Customer shall have the right to examine or audit TGCC's books and records
relating to the Mall Gift Certificates and advertising revenue and costs (for
the Property, only), at TGCC's principal place of business and during normal
business hours, by informing TGCC 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, TGCC will provide Customer with a statement 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 TGCC'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. TGCC shall be responsible for
providing to Customer 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.
m. Laws Compliance. TGCC 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. TGCC 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.
3. AGREEMENT TERM; TERMINATION.
a. Term. The "Term" of this Agreement shall commence as of August 21,
2000 and shall terminate [**] unless earlier terminated in accordance with the
provisions of Section 5 below.
b. Termination. Upon the termination of this Agreement, TGCC and
Customer will no longer issue Mall Gift Certificates through the System. Unless
Customer has terminated this
[**] 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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Agreement due to an Event of Default by TGCC in accordance with Section 5, TGCC
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 TGCC in accordance with
Section 5, Customer shall have the right to direct TGCC to take all necessary
steps so that Customer or Customer's designee may process previously issued Mall
Gift Certificates. TGCC and Customer will destroy all unused gift certificate
stock specific to Customer 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 TGCC. Customer agrees (subject to any confidentiality agreement which
Customer may have with the Third Party) to disclose to TGCC the name of and a
contact person associated with the Third Party purchaser so that TGCC may
contact such Third Party concerning this Agreement and TGCC's services.
b. Assignment by TGCC. TGCC 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
TGCC to operate the business operated by TGCC 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 TGCC has conducted theretofore;
(iii) will continue to operate the business in the same manner as TGCC and
pursuant to all provisions of this Agreement; and (iv) assumes in writing, in a
form acceptable to Customer, all of TGCC's obligations hereunder and TGCC shall
provide Customer with a copy of such document.
5. TERMINATION AND DEFAULT.
a. Termination. Either party may cancel this agreement at any time
during this agreement with thirty (30) day prior written notice to the other
party. Such termination will be effective without cause on the last day of the
following month after such notice is received.
The following events shall constitute an "Event of Default":
b. 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.
c. 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
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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 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. TGCC 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
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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 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: TGCC:
XXXXXX RIDGE MALL THE GIFT CERTIFICATE COMPANY
By: By:
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Signature Signature
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Name (printed) Name (printed)
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Title Title
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Date Date
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ADDENDUM A
ATTACHED TO AND FORMING A PART OF THE CONTRACT SERVICES AGREEMENT DATED AUGUST
21, 2000 BY AND BETWEEN THE GIFT CERTIFICATE COMPANY ("TGCC") AND XXXXXX RIDGE
MALL ("CUSTOMER")
I. CONVENIENCE FEE. Customer and TGCC agree to the following fee structure and
revenue sharing for certificates issued via the Internet and telephone
fulfillment.
[$ [**] PER CERTIFICATE FEE]
II. POWER AND TELEPHONE SPECIFICATIONS. The requirement for installation of
power at each Counter Top 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 Top Unit prior to the installation of
the hardware.) Customer will need to insure that the Counter Top Unit has proper
ventilation should the computer be stored below the counter. Customer will need
to provide to TGCC a site plan that outlines specific location for the Counter
Top Unit.
The requirement for telephone connection is a standard telephone line available
at the location of the Counter Unit. Customer must provide the telephone prior
to the target installation date. Customer must establish an Internet account
with a local ISP, and must provide account name, and password and local access
number to TGCC prior to shipment of the Counter Top Unit to the Customer.
Customer is responsible for the costs of the telephone connection and the
Internet account at the local ISP.
lll. CREDIT/DEBIT CARD RATES. The following is a list of credit cards TGCC will
currently accept and TGCC's current approximate rates are:
Visa/Master Card 1.63%
American Express 3.40%
Discover 2.30%
Debit Card Fees $ 0.25 cents per transaction
[**] 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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