Purchase Agreement

San Jose Sharks

Last Updated: November 24, 2022

SEASON SUITE LICENSE AGREEMENT TERMS AND CONDITIONS
Revised November 2022

These Season Suite License Agreement Terms and Conditions (also referred to as these Terms and Conditions) are fully incorporated into the Season Suite License Agreement (the “Agreement”). Unless otherwise defined herein, all capitalized terms used in these Terms and Conditions are defined in the Agreement. To the extent that any provision of these Terms and Conditions conflicts with any provision of the Agreement or any other exhibits thereto, the applicable provision of the Agreement or other exhibit shall govern and control.

1. Definitions. The following terms shall have the corresponding meanings as set forth below.
a. “City” means the municipal government of the City of San Jose, Santa Clara County, California, including, without limitation, the City Council, City Manager, and Arena Authority;
b. “Contract Year” means, (i) for the initial contract year of the Agreement, the period beginning on the Effective Date and ending on June 30 of the next calendar year, and (b) for each subsequent contract year of the Agreement, if any, each 12-month period during the Term beginning on July 1 and ending on June 30 of the next calendar year;
c. “Game” means any Preseason, Regular Season, or Postseason game designated as a Team Home Game and scheduled by the NHL to be played at the Venue, as defined herein;
d. “Event” means any non-Game presentation including, but not limited to, concerts, athletic events, theatrical productions, shows, public gatherings, or any other scheduled presentation open to the public and taking place at the Venue. Events do not include: (i) non-commercial presentations sponsored or controlled by the City; (ii) non-commercial presentations for which an admission fee is not charged; (iii) presentations not open to the general public or for which admission is by invitation only; (iv) conventions, trade shows or other similar programs; (v) sporting events regulated by a governing body such as USA Gymnastics, other Olympic sport governing bodies, or the NCAA and (vi) Theater Shows (as defined herein);
e. “League Rules” means the Constitution and Bylaws, resolutions, rules and regulations, policies, limitations and interpretations of the NHL, as determined by the NHL, each as they presently exist and as they may, from time to time, be entered into, created and amended;
f. “Licensee Guest(s)” or “Guest(s)” means any person(s) the Licensee invites or permits to enter or use the Suite, any person(s) to whom Licensee provides Tickets, and/or any person(s) who rightfully enters the Venue using a Ticket conferred upon Licensee under this Agreement;
g. “Multi-Performance Event” means an Event having two (2) or more scheduled performances in the Venue to be conducted successively, whether or not the performances are conducted on consecutive nights. A Multi-Performance Event will be deemed one (1) Event for purposes of this Agreement. Notwithstanding the foregoing, multiple-day sporting competitions (e.g., U.S. Figure Skating Championships) are not treated as a Multi-Performance Events;
h. “NHL” or “League” means the National Hockey League;
i. “NHL Season” or “Season” means the time period corresponding to the Regular Season and the Postseason as determined by the NHL;
j. “Postseason” or “NHL Playoffs” means the time period comprising of the schedule of games conducted by the NHL following the conclusion of the Regular Season which leads to the determination of the winner of the Stanley Cup Championship;
k. “Preseason” means the time period prior to the Regular Season, including the period comprising of any exhibition Games taking place during training camp;
l. “Regular Season” means the time period during any Contract Year comprising the League schedule as determined by the NHL;
m. “SJAM” means San Jose Arena Management, LLC, Club’s affiliate entity, which manages and operates the Venue pursuant to a separate management agreement with the City (the “Management Agreement”);
n. “Theater Show” means a presentation for which the use of a theater curtain and/or set up of the performance area would obscure the view from the Suite;
o. “Tickets” means the standard tickets for admission and seating in the Suite granted to Licensee under this Agreement, the maximum number of which is specified in Section 2 of the Agreement. All other tickets to which the Licensee is entitled to receive or purchase under this Agreement are Additional Tickets, as defined in Section 2(C)(i)(a) of these Terms and Conditions;
p. “Ticket Value” means the U.S. dollar ($) value of the Tickets, as determined by Club;
q. “Venue” means, the event facility known as SAP Center at San Jose located at 525 West Santa Clara Street, San Jose, California, owned by the City and managed and operated by SJAM; and
r. “Venue Rules” means all: (i) rules, regulations, policies and limitations related to admission, behavior and use of the Venue as determined on an on-going basis by Club, SJAM and/or any sponsor or promoter of any relevant Game and/or Event, and (ii) all applicable laws, statutes, rules, regulations, decisions and orders of any applicable federal, state or local governments, administrative agencies and commissions.
2. Possession and Use.
a. License to Use. Subject to the terms and conditions of this Agreement, Licensee shall receive a license to use the Suite during the Term for all Games and those certain Events for which Licensee is provided Tickets for admission to the Suite under this Agreement.
b. Limitations and Conditions to Use.
i. Suite Access.
a. Access Time. Licensee's right to use and possess the Suite is not continuous and, except as otherwise provided in writing by Club, will be limited to the time periods before, during and after such Games and Events for which the Venue is open to the public, as determined in Club’s sole discretion and for which Licensee has access to the Suite in accordance with this Agreement. If Licensee seeks to access and use the Suite at a time in which the Venue is not open to the public, Licensee may submit a request to Club no later than two (2) weeks prior to the desired date and time for such use, and Club, in its sole discretion, may allow Licensee to access and use the Suite under such terms and conditions as determined by Club.
b. Security and Control. Club may control access to the Suite through the use of security personnel and/or security devices, may retain duplicate keys to the Suite doors and cabinets, and may access the Suite at any time and to such extent as Club deems necessary. Each person in the Suite must have a valid Ticket, SRO Ticket or Guest Pass, as applicable, for the specific Game or Event occurring at that time. Notwithstanding anything herein to the contrary, Club will have no duty to provide security protection or to monitor access to the Suite. Licensee assumes full responsibility at all times for protecting the Suite and all personal effects of Licensee from theft, robbery and trespass, including keeping all entry ways into the Suite closed and locked. Licensee will close and lock the Suite doors and shut off all water and electrical appliances before leaving the Suite after use.
ii. Food and Beverage. Club, through the Venue concessionaire, will provide all food and beverage catering services to the Suite at the rates and terms established by Club or the Venue concessionaire. Licensee acknowledges that all food and beverage in the Suite must be purchased from Club or the Venue concessionaire. Licensee will not permit any food preparation or service of outside food or beverages in the Suite and will not charge any person for food or beverages consumed in the Suite.
iii. Suite Administrator. Licensee will designate one (1) person to act on behalf of Licensee under this Agreement, establish an account and incur charges with Club and/or the Venue concessionaire, hold keys to storage locker(s), request Guest Passes, and take such other actions on behalf of Licensee (the “Suite Administrator”). Licensee is responsible for ensuring that no one under the age of twenty-one (21) years consumes any alcoholic beverage in the Suite.
iv. Venue Rules. Licensee will observe and abide by the Venue Rules at all times. Club reserves the right to refuse admission, eject, and/or or revoke the right to enter or remain in the Venue and/or the Suite, without refund, for Licensee or any of its Guests failing to comply with the Venue Rules or engaging in any misconduct, as determined by Club. In addition to complying with the Venue Rules, Licensee will maintain a high level of decorum at all times while using the Suite, and will discontinue the use of and access to the Suite by anyone exhibiting disruptive, indecent, offensive, or illegal behavior.
v. Suite Maintenance
a. Furnishings, Decor and Alterations. Club will provide the following furniture, fixtures, and equipment, including the specific number of seats (the “Seating Capacity”) as described in this Agreement (collectively, the “Suite Furnishings”): upholstered, theater-style seats; mobile glass partition separating the seating area from the lounge area; centrally-controlled heating, air conditioning, ventilation and lighting; lounge seating, lighting and tables; built-in cabinets and drawers; wet bar with glassware, flatware and plates, as needed; under-the-counter refrigerator and ice maker; two (2) television displays with basic service cable channels in the San Jose-area; stereo sound system; in-Suite telephone service (Licensee shall be responsible for the cost of any out-of-Venue calls). Licensee will not make any additions, changes, or alterations to the interior or exterior of the Suite, including its fixtures, furnishings, equipment, and décor, or bring articles of appointment or decoration, into the Suite, in each case, without Club’s prior written consent, which Club may grant or withhold in its sole discretion. Any additions, alterations or appointments permitted by Club shall be made at Licensee’s sole cost and expense. No advertisements, signs, logos, or other images or objects of Licensee may be visible from outside the Suite. Licensee is responsible for removing all appointments and any other personal property from the Suite, and Licensee will be responsible for the cost of installing and removing such additions, alterations or appointments and restoring the Suite to its original condition upon the expiration or earlier termination of this Agreement. If any Suite Furnishing is lost, stolen, or broken as a result of Licensee’s use of the Suite, Licensee will reimburse Club for the cost of its repair or replacement.
b. Cleaning and Repair. Licensee will maintain the Suite in good repair, order, and condition, ordinary wear and tear excepted. Club will provide standard repair and maintenance of the interior and exterior of the Suite as necessary to address ordinary wear and tear, as well as perform standard cleaning of the Suite after each Game and/or Event at no additional cost to Licensee. Licensee is responsible for any damage to the Suite, beyond ordinary wear and tear, directly or indirectly caused by Licensee or its invitees or Guests. If any additional cleaning, repair, or maintenance beyond Club’s ordinary course of maintenance is required as a result of Licensee’s use of the Suite, Licensee will reimburse Club for the cost of such additional cleaning, repair, or maintenance, or such damage or loss within thirty (30) days of Licensee’s receipt of invoice for such services.
c. Personal Property. Club is not responsible for the loss of any personal property brought into the Suite by a Licensee and/or its Guests.
ii. Licensee Guests. Licensee is solely responsible for the acts of Licensee and its Guests. All terms and conditions related to Licensee’s use and possession of the Suite will apply equally to its Guests. Licensee will inform its Guests of the Venue Rules and other applicable obligations of Licensee, and any violations by Licensee’s Guests will constitute a Default of this Agreement. Minors under the age of eighteen (18) accessing the Suite must be accompanied and supervised at all times by a designated custodian over the age of twenty-one (21).
c. Games and Events.
i. Tickets. Subject to the terms of this Agreement, Licensee will receive the number of Tickets for admission and seating in the Suite as specified in Section 2 of the Agreement for all Games in the Venue and those certain Events identified in Section 2 of the Agreement. Licensee and its Guests will be bound by all terms and conditions upon which Tickets to the Venue are issued, and will observe all Venue Rules. Licensee will have no right to renew or repurchase the Tickets following the expiration or earlier termination of this Agreement. If this Agreement is terminated prior to the end of the Term, Tickets for any remaining Games and/or Events will not be valid or honored by Club.
a. Additional Tickets. Upon request to Club and subject to availability and Licensee’s compliance with Venue Rules, Licensee may request to purchase and/or receive additional tickets as follows (collectively, the “Additional Tickets”):
1) SROs. Unless otherwise provided in the Agreement, Licensee may purchase up to that number of additional standing room only Tickets (“SRO Tickets”) specified in Section 2 of the Agreement for admission to the Suite at such price as determined by Club or the Event promoter, as applicable. Within sixty (60) days following the release of the League schedule each Season, Club will solicit an initial plan for Licensee’s purchase and/or use of SRO Tickets in the upcoming Season. Although Club agrees to make commercially reasonable efforts to honor and fulfill any SRO requests throughout the Season in a manner consistent with the terms of this Agreement, it is Club’s intent to know as far in advance as possible of the specific SRO Tickets to be requested for each Game in order to have the SRO Tickets printed and ready when all Tickets and parking passes are issued in early September of each Contract Year of this Agreement.
2) Guest Passes. Licensee may receive, at no additional charge, up to that number of guest passes specified in Section 2 of the Agreement permitting ticketholders for seating in other areas of the Venue limited access to the Suite for a limited period during the Event, as determined in Club’s sole discretion (the “Guest Passes”), which will count toward the maximum Suite seating capacity as set by Club or Venue management. Club reserves the right to revoke any such Guest Passes if Club determines that the Licensee or Guest Pass holder is abusing the privilege to use such Guest Passes, violates Venue Rules, or otherwise engages in any misconduct.
3) Relocation Tickets. Unless otherwise provided in the Agreement, Licensee may purchase up to that number of tickets set forth in Section 2 for reserved seating in other areas of the Venue for any Theater Show for which the Suite is not available for use by Licensee (the “Relocation Tickets”). Club cannot guarantee the availability or location of Relocation Tickets for Theater Shows. Distribution of Relocation Tickets will be subject to availability and will be offered to all suite licensees on a first come, first served basis.
b. Non-Suite Tickets. Licensee may purchase tickets for reserved seating in other areas of the Venue for any Game or Event at the ticket price offered to the general public, subject to availability.
c. Resale. Licensee may not sell or allow the sale of any Event or Game Ticket, for an amount greater than the Ticket Value. Licensee may not sell Guest Passes or any other right to enter and/or use the Suite for any consideration.
ii. Parking Passes. Licensee will receive the number of parking passes as specified in Section 2 of the Agreement (the “Parking Passes”). Any such Parking Passes will be for single-vehicle parking in the locations designated by Club. Licensee agrees that Licensee and any persons to whom Licensee provides the Parking Passes will be bound by all terms and conditions upon which Parking Passes are issued by Club and will observe all rules and regulations relating to their use. Licensee will have no right to renew or repurchase the Parking Passes following the expiration or earlier termination of this Agreement. If this Agreement is terminated prior to the expiration of the Term, any Parking Passes will no longer be valid and must be returned immediately by Licensee.
iii. Multi-Performance Events. Licensee will receive Tickets for two (2) performances of each Multi-Performance Event. Licensee may purchase the use of the Suite for additional performances of such Multi-Performance Events, which will include the cost of: (i) tickets for the number of seats in the Suite equal to the maximum Suite seating capacity, and (ii) the number of Parking Passes specified herein. If Licensee fails to purchase that number of Tickets and Parking Passes for additional performance(s) of a Multi-Performance Event, the Suite will remain vacant and unused for each such additional performance(s).
iv. Non-Event Use. Licensee may receive access to the Suite for non-Event or non-Game-related use only upon request to Club, who may grant or deny such access for any or no reason (“Non-Event Use”). In the event Club grants such requested access, Club may require payment by Licensee of reasonable charges to cover incremental costs associated with such Non-Event Use of the Suite.
v. Common Area. Subject to the Venue Rules and the other rights reserved by Club hereunder, Licensee will be entitled to the nonexclusive use in common with Club and other users of the Venue, of the walkways, stairways, toilets, elevators, and other portions of the Venue as Club may at any time designate for exclusive use by the Licensees or for shared use with other users of the Venue. Licensee has no other rights of any kind to the light, air, or any other area in, about, or over any portion of the Venue or any other property, whether belonging to Club, the City, or others.
vi. Governing Body Preemption. Notwithstanding anything herein to the contrary, Licensee acknowledges and agrees that the availability and usage of the Suite during any Game or Event managed, governed, and presented by the NHL or another national or international collegiate or professional organization (the “Governing Body”) will be subject to the requirements and control of the Governing Body. If such Governing Body presenting an Event at the Venue requires all persons with access to the Suite to purchase tickets in order to view its Event, then Licensee will purchase such tickets at the prices established for such Event by the Governing Body in a number equal to the maximum occupancy of the Suite. In addition, if Licensee’s access to the Suite is restricted by the Governing Body, Licensee may request Relocation Tickets in accordance with Section 2(C)(i) of this Agreement.
vii. Additional Teams. As of the Effective Date, the Venue is the home arena of the Team and the San Jose Barracuda, a professional ice hockey team competing in the American Hockey League. In the event Club, SJAM, or any of their parents, subsidiaries, or other related entities should reach an agreement establishing the Venue as the permanent home venue of any other professional or collegiate sports team (the “Additional Team”), Club will have the right, upon thirty (30) days written notice, to increase the Annual License Fee for each Year of this Agreement for which the Venue is the home venue for such Additional Team as consideration for the increased number of Events for which Licensee will have access to the Suite. Any increase to the Annual License Fee pursuant to this provision will be determined in Club’s sole and reasonable discretion, based on the maximum occupancy of the Suite and premium ticket prices for any such Additional Team games or events. Licensee may elect to relinquish Licensee’s access to the Suite during the Additional Team’s games and events (“Additional Team Use”) and maintain its current Annual License Fee; provided, however, Licensee must submit written notice of its election to opt out of such Additional Team Use to Club within thirty (30) days of its receipt of notice of the Annual License Fee increase related to the Additional Team. Licensee’s failure to notify Club of its election to opt out of the Additional Team Use will constitute an acceptance of the Additional Team Use and the related Annual License Fee increase. If Licensee opts out of Additional Team Use, Club may license the use of the Suite to any third party of its choice for such Additional Team Use.
B. Multiple Seasons. Except as otherwise provided in this Agreement, Licensee’s rights and benefits will be the same for each Year of this Agreement.
3. Fees and Payment.
a. Annual License Fee. In consideration of the license to use the Suite, Licensee will pay Club the Annual License Fee for each Contract Year as set forth in Section 3, and pursuant to the payment schedule set forth therein.
b. Method of Payment. Club will send Licensee an invoice for the total amount due for any and all additional fees to be paid by Licensee under this Agreement as such costs and expenses are accrued by Club. Except as otherwise provided, all invoices will be payable to Club within thirty (30) days of each invoice date. Except as otherwise expressly provided in this Agreement, the Annual License Fee will be paid irrespective of any cancellation or postponement of any Game or Event for any reason and will not be subject to any “setoff” by Licensee. If Licensee is paying by credit or debit card, Licensee expressly authorizes Club to automatically charge each installment to Licensee’s credit or debit card on the dates specified in this Agreement. Licensee acknowledges and agrees that no further authorization shall be required for the collection of any payments under the Agreement. Any past due amounts, including processing fees, due under this Agreement shall be added to the immediately following payment to be charged to the card. These Terms and Conditions constitute Licensee’s preauthorization for Club to charge Licensee’s Card in accordance with this Agreement and the terms herein. Licensee hereby consents to electronic receipt of disclosures from Club.
c. Taxes and Expenses. Except as otherwise provided, all payments to be made to Club under this Agreement will be net of all costs, expenses, and taxes. If, as a result of actions taken pursuant to this Agreement, Club must pay any costs, expenses, or taxes directly related to Licensee’s obligations under this Agreement and/or any such costs, expenses or taxes become due with respect to the Annual License Fee or the Suite during the Term, and are not specifically provided in this Agreement, including, without limitation, any entertainment, sales or other taxes, Licensee will reimburse Club for the payment of such taxes in full within thirty (30) days of Licensee’s receipt of notice thereof by Club. Licensee will not be responsible for payment of taxes imposed on the income of Club or its related entities.
d. Credits and Refunds. Unless otherwise specifically provided in this Agreement, Licensee will not receive any credit or refund for any missed or canceled Games or Events. In the event the Venue is closed due to Force Majeure or the NHL Season is reduced by the League, Licensee’s sole remedy will be the extension of the Agreement in accordance with Section 2 of the Agreement.
e. Late Payment. If any amount payable by Licensee to Club under this Agreement is not paid as and when due, such amount shall bear interest until paid at a rate equal to the lesser of (i) 1.5% per month and (ii) the maximum rate permitted by law, and Club shall have the right to withhold any or all of the benefits granted pursuant to this Agreement, including Game Tickets, during the period in which such amount remains unpaid. Club shall have no obligation to provide benefits withheld pursuant to the foregoing sentence at a later date, nor any obligation to provide any substitutions or any refund of or reduction in the Annual License Fees. Licensee shall pay Club all reasonable attorneys’ fees and other costs and expenses incurred by Club to collect any payment due to Club under the Agreement following Licensee’s failure to make such payment as and when due. This Section 3(e) in no way relieves Licensee of the obligation to pay the Annual License Fee, or any installment thereof, on or before the date due, nor do these Terms and Conditions in any way affect Club’s remedies pursuant to this Agreement in the event the Annual License Fee is unpaid after the date due.
4. Intellectual Property.
a. Marks. The parties will each retain all ownership, right, and title in their respective copyrights, patents, trademarks, service marks, trade names, insignia, symbols, logos, designs, artwork, and all other intellectual property rights (the “Marks”). Except as expressly provided herein, neither party will have any rights or interest in the other party's Marks without prior written consent.
b. Recording and Broadcast Rights. Club, its broadcast partners, and/or Event promoters are the sole holders of all rights in and to all television, radio, internet, or any other broadcast of the Games and/or Events. Licensee will not use any broadcast or make any video or audio recording of a Game, Event, or other activity in or about the Venue without prior written consent which may be withheld for any or no reason.
5. Indemnification; Liability; Assumption of Risk.
a. Indemnification. Licensee will indemnify, defend and hold harmless Club, Sharks Minor Holdings, LLC, SJAM, the City, and each of their respective members, officers, directors, employees, agents and representatives (the “Indemnified Parties”) from and against any and all actions, damages, liabilities, losses, claims, costs and expenses of any kind, including reasonable attorneys’ fees and litigation expenses (the "Claims"), related to or arising from Licensee’s performance or breach of this Agreement, including, without limitation: (i) the actual or alleged negligent, intentional or wrongful acts or omissions of Licensee, its Guests, or those acting with Licensee’s authority; (ii) the content of any materials or articles provided, displayed and/or used by Licensee; and (iii) Licensee’s breach or threatened breach of any provision of this Agreement. Licensee is not responsible for the gross negligence or willful misconduct of the Indemnified Parties. The obligations set forth in this Section 5(a) shall survive expiration or termination of the Agreement.
b. Limitation of Liability. Club shall not be liable or responsible for any loss, damage, or injury to any person or any property of Licensee or Licensee’s Guests in or upon the Suite, the Venue, the parking areas or elsewhere, resulting from any cause whatsoever, including but not limited to, theft or vandalism, except to the extent the same is attributable to Club’s gross negligence or willful misconduct. Licensee hereby assumes, and shall cause its Guests to assume, all risks and dangers incidental to Games and Events at the Venue, whenever or however they occur, including without limitation, the danger of being injured by flying objects, including hockey pucks, other spectators or player interaction, Venue conditions, and other hazards associated with attending Games and Events in a public forum and/or using the Suite (the “Risks”) and agrees that Club shall not be liable for injuries resulting from such Risks. Licensee is responsible for alerting its Guests of the Risks. Under no circumstances will either party be liable to the other for any consequential, special, indirect, incidental, punitive or exemplary loss, damage, cost or expense.
c. COVID-19 Advisory. Licensee understands and voluntarily assumes all risks associated with attending Team Home Games in the Suite and with interacting with others given the current status of the COVID-19 pandemic. Licensee acknowledges and agrees that COVID-19 is extremely contagious and that there is an inherent danger and risk of exposure to COVID-19 in any place where people are present. No precautions, including the protocols Club has put in place, can eliminate the risk of exposure to or contraction or transmission of COVID-19, and the risk applies to everyone. No claim shall be made to Club related to COVID-19.
d. Insurance. Licensee shall maintain, at its own expense during the Term of this Agreement, commercial general liability insurance written on an occurrence basis, providing coverage for bodily injury and property damage, with limits of not less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) in the aggregate. Licensee shall remain solely liable for the satisfaction of any deductibles. The required insurance shall be issued by a licensed insurance company with an AM Best Rating of A-, VII or better. Licensee’s commercial general liability policy shall name San Jose Sharks, LLC, San Jose Arena Management, LLC, Sharks Sports & Entertainment LLC, Sharks Minor Holdings LLC, the City of San Jose, and each of their respective members, officers, directors, employees, agents and representatives as additional insureds (hereinafter “Club Additional Insureds”). All policies shall be endorsed to provide the coverage described for Club Additional Insureds and to provide a waiver of subrogation in favor of Club Additional Insureds. Licensee’s commercial general liability policy shall be primary and non-contributory with any insurance maintained by Club Additional Insureds. Licensee shall also maintain workers compensation in compliance with the laws of the California. Licensee shall provide Club with 30 days written notice of cancellation of the policies required under this Agreement. Upon execution of this Agreement, and thereafter as the policy expires and is renewed or a new policy is issued, Licensee shall deliver to Club a certificate from the insurer confirming the issuance of the required insurance and that the premiums therefor have been paid. If Licensee fails to obtain the required insurance or fails to deliver to Club evidence of the required insurance, then Club shall be entitled, but shall not be obligated, to obtain the policy at the Licensee’s expense. The insurance requirements set forth will in no way modify, reduce, or limit the indemnification herein made by Licensee. Receipt by Club of a certificate of insurance, endorsement or policy of insurance which is more restrictive than the contracted for insurance shall not be construed as a waiver or modification of the insurance requirements above or an implied agreement to modify same, nor is any verbal agreement to modify same permissible or binding.
6. Default and Termination.
a. Default. The occurrence of any one or more of the following events or actions will constitute a breach of this Agreement (each, a “Default”):
i. Failure to Pay. Licensee’s failure to pay as and when due any amounts to be paid by Licensee pursuant to this Agreement, including, without limitation, any installment of the Annual License Fee;
ii. Misrepresentation. Any representation or warranty made by Licensee to Club that it knows or should have known was materially false as of the Effective Date;
iii. Other Material Breach. The breach of or failure to perform any other duty, obligation, representation, or warranty under this Agreement, if such breach or failure has not been waived in writing and has not been cured by the breaching party within thirty (30) days following receipt of written notice specifying the nature of such breach, or, is not capable of being cured within such thirty (30) day period;
iv. Sponsorship Termination. Licensee’s default or breach of any Sponsorship Agreement made by and between Club and Licensee, if applicable, resulting in the rightful termination thereof will constitute an incurable Default under this Agreement; and
v. Suite License Termination. Licensee’s termination of this Agreement prior to the Scheduled Expiration Date set forth in Section 2 of the Agreement, in the absence of any Default by Club.
b. Remedies. Without limiting any of Club’s rights under this Agreement, in the event of a Default by Licensee, Club may: (i) withhold distribution of any Tickets to Licensee that Licensee otherwise would have the right to receive and/or purchase under this Agreement, without refund, credit, or other obligation, and/or (ii) terminate the rights of Licensee under this Agreement immediately upon written notice to Licensee: (a) if the Default is not capable of being cured, including, without limitation, violation of Venue Rules, or (b) if such Default is capable of being cured, and the Defaulting party fails to remedy the Default within thirty (30) days of written notice specifying the nature of the Default.
c. Effect of Termination. Upon termination pursuant to this Section 6, Licensee will forfeit all rights to use and possess the Suite. Furthermore, Licensee’s obligation to pay the outstanding balance of the Annual License Fee (the “Outstanding Balance”) and any other amounts due to Club under this Agreement, if any, will be accelerated and become immediately due and payable. Upon such termination, Club will have no further liability or obligation to Licensee, may recover possession of the Suite by any lawful means, and may recover any damages to which it is entitled at law or in equity. Club will use reasonable efforts to relicense the Suite; provided however, if any other Venue suite is available to be licensed, Club may give priority to licensing such other suites. If Club relicenses the Suite to a third party prior to the Scheduled Expiration Date, Licensee will be entitled to a credit or refund of the Outstanding Balance attributable to the period of time remaining in the intended Term of this Agreement for which the Suite is relicensed, less an amount equal to any and all costs and expenses incurred by Club in the relicensing of the Agreement, as reasonably determined by Club, including, without limitation: (i) attorneys’ fees, arbitrator fees, collections fees, court costs and other administrative expenses related to the enforcement and termination of this Agreement; (ii) the cost and expense incurred in returning the Suite to substantially the same condition as existed prior to this Agreement; and (iii) any and all remarketing, personnel, and other overhead costs related to relicensing the Suite.
d. Additional Remedies. Termination of this Agreement will not affect Licensee’s obligations under this Agreement for amounts due and owing to Club, or otherwise limit the rights and remedies available to Club. Furthermore, Club’s receipt and acceptance of any amounts owing to Club by Licensee will not constitute a forfeiture or waiver of any additional amounts owed by Licensee or of any other right or remedy available to Club at law or in equity. In the event this Agreement is terminated by Licensee due to a breach or Default of Club, Licensee agrees that its sole remedy will be a credit or pro rata refund of the Annual License Fee already paid to Club, excluding any amount allocable to rights already exercised by Licensee under this Agreement and/or any other Club obligations already performed hereunder.
e. Early Termination. Notwithstanding anything herein to the contrary, Club may terminate this Agreement at any time if: (i) the Management Agreement between SJAM and the City terminates, whether or not such termination occurs prior to the anticipated expiration date thereof, or (ii) Club no longer holds an NHL franchise for any reason. Upon such early termination, Licensee will be entitled to a credit or pro rata refund of the Annual License Fee already paid by Licensee to Club for the remaining portion of the Term as of the date of termination.
f. Surrender. Upon the expiration or earlier termination of this Agreement, Licensee will immediately surrender possession of the Suite to Club in substantially the same condition as existed on the Effective Date, except for normal wear and tear. No act or conduct of Club will constitute an acceptance of the surrender of the Suite prior to the expiration of the Term unless and until Club provides Licensee with a written acknowledgment of such acceptance. Unless otherwise agreed by Club in writing, Licensee’s possession of the Suite or any part thereof after the expiration or termination of the Term will constitute a license “at sufferance”, terminable by Club at any time without notice, for a monthly fee in an amount equal to ten percent (10%) of the Annual License Fee designated for the final Contract Year of this Agreement, plus all other amounts payable hereunder.
7. Force Majeure; Unavailability of Suite.
a. Force Majeure. Unless otherwise provided in this Agreement, if performance under this Agreement is prevented, restricted, or interfered with by reason of any event beyond the parties’ reasonable control, including but not limited to, fire, flood, epidemic, pandemic, earthquake, explosion, act of God or public enemy, riot or civil disturbance, strike, lockout, labor dispute, war, terrorist threat or activity, any government law, order or regulation, or order of any court or jurisdiction (each, a “Force Majeure Event”), the restricted party will not be in breach hereof and the performance or obligation of such party will be excused for a period of time equal to the period during which the Force Majeure Event prevents such performance. In such event, the parties will make reasonable efforts to determine sufficient “make goods” allowing the restricted party to satisfy its obligations hereunder. Licensee’s sole remedy for a Force Majeure Event forcing the closure of the Suite and/or Venue, will be the extension of the Term in accordance with Section 2 of the Agreement. The financial condition, default, breach, or intentional or negligent act or omission of this Agreement by the party seeking excuse from performance will not constitute a Force Majeure Event.
b. NHL Work Stoppage. In the event the NHL experiences a strike, lockout, or related work stoppage resulting in the reduction of the number of Games scheduled to be played during the Term, Licensee will not have the right to terminate this Agreement, but rather Licensee’s sole remedy will be the extension of the Term in accordance with Section 2 of the Agreement.
c. COVID-19. COVID-19 related restrictions or other COVID-19 related impacts on Club’s operations shall be a Force Majeure Event to the extent Club’s delivery of any benefits set forth herein is prevented, in which case Club will deliver substitute benefits equal to the aggregate value of the missed benefit(s) as a result of the Force Majeure Event. Any closure of the Venue or limitation on attendance at Games and/or Events related to the ongoing COVID-19 pandemic due to the spread of the SARS-CoV-2 virus, prohibiting use of the Suite shall be a Force Majeure Event and Licensee’s sole remedy will be the extension of the Term in accordance with Section 2 of the Agreement.
8. Miscellaneous.
a. Notices. Any notice, request, approval, or consent under this Agreement must be given in writing and delivered in person, mailed (certified or first class), or electronically transmitted to the address provided in this Agreement, or to such other address as the recipient may furnish in writing to the sender, and will be effective upon the earlier of actual delivery or three (3) days following mailing.
b. Waiver and Amendment. No modification, amendment, or waiver of any provision of this Agreement will be binding or valid unless in writing and executed by both parties. Failure to enforce any provision of this Agreement will not be construed as a waiver or thereafter prevent either party from enforcing the same, or any other provision, of this Agreement. The waiver by any party of any breach of the Agreement shall not be deemed a waiver of any prior or subsequent breach. All remedies of either party shall be cumulative and the pursuit of one remedy shall not be deemed a waiver of any other remedy.
c. No Interest. The rights granted under this Agreement do not create in Licensee or any third person any interest or estate in real property or any leasehold interest in the Suite and/or the Venue beyond the limited license to use and possess the Suite as set forth herein. Except as provided under this Agreement, Licensee will not have any greater rights or privileges with respect to admission to the Venue than those afforded to ticketholders for general admission to the Venue.
d. Relationship of the Parties. The parties are independent contractors of one another, and nothing contained in this Agreement will be interpreted, construed, or applied in practice, in any way, as creating or establishing a partnership, agency, joint venture, or employment relationship among the parties. Each party is solely responsible for the payment of all applicable state, federal, and local taxes and complying with all laws, regulations, and/or requirements related to its business.
e. Right to Manage. Club reserves the sole and exclusive right and authority to handle, decide, supervise, manage, and control the financial, business, administrative, and other matters with respect to its business, including, without limitation, the operation of the Venue and any other businesses in which it or its corporate affiliates has an interest or which is under its control, including the scheduling of all Games and Events, the hiring and firing of personnel, and any other administrative matters.
f. No Warranty. Other than full performance of the Seasons comprising the Term of this Agreement, as determined in the sole discretion of the League, Club does not make any representation, warranty, covenant, or guarantee that any particular Games or Events, or any specific number of Games or Events, will take place at the Venue during the Term of this Agreement.
g. Confidentiality. This Agreement, including all of its terms and conditions, along with all negotiations and discussions between the parties regarding this Agreement are confidential and may not be disclosed by either party without the prior written consent of the other party. Notwithstanding the foregoing, either party may disclose such matters to its corporate directors, attorneys and/or auditors, the NHL, and as required by law, provided such fiduciaries commit in writing to abide by the confidentiality provisions set forth in this Agreement. If either party is required to disclose any term or provision of this Agreement, such party shall promptly notify the other party to permit it to take what appropriate action it deems necessary to protect its interests hereunder. The provisions of this Section 8.g. shall survive the expiration or termination of this Agreement.
h. Compliance. This Agreement is subject to the terms of, and each party warrants and certifies that it will comply with, all Venue Rules and applicable laws. The parties agree to cooperate in the performance of each of their obligations under this Agreement, including, but not limited to, obtaining, agreeing to, distributing and/or enforcing any waivers, rules and regulations, licenses and permits, and other required certifications related to performance hereunder. Licensee will act with due regard to public conventions and morals, and agrees that it will not do or commit any act or thing that will tend to shock, insult, or offend the community or ridicule public morals or decency, or prejudice Club in general.
i. Governing Law; Dispute Resolution. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California without regard to its conflict of law principles that may cause the application of laws of another jurisdiction. Subject to the Dispute Resolution provision set forth herein, any Dispute arising under or related to this Agreement will be subject to the exclusive jurisdiction of state court in the County of Santa Clara, California, or the United States District Court for the Northern District of California in San Jose, California. The parties voluntarily agree that any dispute, claim, question, or controversy between the parties arising from or relating to this Agreement (the “Disputes”) will be finally resolved exclusively by binding arbitration administered by a single arbitrator of the American Arbitration Association in accordance with its Commercial Arbitration Rules taking place in San Jose, California. Any judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. Except as required by law, neither party nor the arbitrator may disclose the existence, content, results, or award of any arbitration without the prior written consent of all parties. The arbitrator will have no authority to award punitive or other damages not measured by the prevailing party’s actual damages. The prevailing party will be entitled to recover from the losing party reasonable attorneys' fees, arbitrators’ fees and any other fees incurred in connection with the arbitration. The parties expressly waive the right to resolve any Dispute through any other means, including by a jury trial. LICENSEE AND CLUB EACH HEREBY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, RULES AND LEGAL REQUIREMENTS, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. This Section 8.i. will survive the expiration or termination of the Agreement.
j. Attorney’s Fees. If either party commences or engages in an action or other proceeding by or against the other party arising out of or related to this Agreement, the prevailing party will be entitled to have and recover from the losing party reasonable attorneys' fees and other costs incurred in connection with the action, preparation for such action or proceeding, any related appeals, and enforcing any associated judgments.
k. Severability. If any portion of this Agreement is judged to be illegal, invalid, or unenforceable for any reason by a court or arbitrator of competent jurisdiction, such portion shall be severed from the remainder of the Agreement, which shall remain in full force and effect, and the Agreement shall be construed as if such invalid or unenforceable provision had not been part of the Agreement, and the court or arbitrator making such determination shall have the power to reduce the scope or applicability of such provision in a manner that makes such provision valid and enforceable and comes closest to expressing the intention of the invalid or unenforceable provision.
l. Captions. The captions used in this Agreement are for convenience only and will not define, limit, or otherwise be used in the construction of this Agreement.
m. Assignment. Licensee may not assign or transfer any of its rights and obligations under this Agreement without Club’s prior written consent. Any attempt by Licensee to assign or transfer its rights or obligations in violation of this provision will constitute a Default under this Agreement. In the event Licensee requests Club’s written consent to assign or transfer any of its rights and obligations under this Agreement, Club may require further documentation regarding its character, business and personal reputation, financial condition, and any other information as Club desires to make an informed decision regarding such consent. Club will have no obligation to consent to any proposed assignment or transfer by Licensee and may withhold consent of such assignment or transfer for any or no reason. Club may impose any conditions of its approval of any proposed assignment or transfer, and will be entitled to receive and retain any and all compensation or payment Licensee charges and/or receives from any third party related to Licensee’s assignment of its rights and obligations hereunder. Notwithstanding the foregoing, any internal corporate reorganization for the purpose of converting either party to a different type of legal entity or transferring the ownership of such party to a direct or indirect subsidiary of the same party’s parent, subsidiary, or other related entity will not require the other party’s consent.
n. No Third Party Beneficiaries. Nothing in the Agreement is intended or shall be construed to give any other person or entity any legal or equitable right, remedy or claim under or in respect of the Agreement or any provision contained herein, other than the Indemnitees and permitted assignees, if applicable.
o. Representations and Warranties. Licensee represents and warrants to Club that (i) Licensee has the full power and legal authority to enter into and fully perform the Agreement in accordance with its terms; (ii) Licensee has obtained all approvals for the execution, delivery and performance of the Agreement; (iii) Licensee has duly executed and delivered the Agreement; (iv) the Agreement constitutes a legal, valid and binding obligation of Licensee enforceable in accordance with its terms (subject to applicable bankruptcy and insolvency laws and general principles of equity); (v) Licensee’s execution, delivery and performance of the Agreement does not and will not violate, conflict with or cause a breach of or default under any other agreements or obligations to which Licensee is a party or by which it is bound; (vi) Licensee’s execution, delivery and performance of the Agreement do not and will not contravene or conflict with or constitute a violation of any provision of any applicable law, rule or legal requirement; and (vii) Licensee maintains and will maintain during the Term, a net worth that is sufficient to perform its financial obligations and liabilities under the Agreement.
p. Entire Understanding. This Agreement, including all Exhibits referred to herein, constitutes the entire understanding between the parties and supersedes all prior or contemporaneous written or verbal agreements, negotiations, discussions and understandings relating to the subject matter hereof.
q. Return of Suite. Upon expiration or termination of the Agreement, Licensee shall surrender the Suite to Club in the condition in which it was originally delivered to Licensee (normal wear and tear excepted). If Licensee fails to do so, Club may undertake the work required to return the Suite to such condition, and Licensee shall reimburse Club on demand for the cost of such work.
r. Relocation of Suite. Club expressly reserves the right, at its sole cost and expense, to relocate Licensee to any other suite of Club’s choosing at the Venue, of the same approximate size, if Club determines that such relocation is reasonably necessary or advisable in connection with any construction or renovation project at the Venue or if reasonably necessary upon the request of any promoter of any Event.
s. Grant of Right to Use Image and Likeness. Licensee understands that the image, likeness and/or name of Licensee or Licensee’s Guests may be used as part of any live or recorded motion picture display or other transmission in any media whether now known or hereafter developed of all or any part of any event at the Venue as well as any dissemination by Club or its affiliates or sponsors or third parties authorized by Club.
t. League Rules. THIS AGREEMENT AND ALL RIGHTS GRANTED HEREIN BY CLUB ARE SUBJECT TO AND LIMITED BY LEAGUE RULES AND ANY OTHER REQUIREMENTS, POLICIES AND LIMITATIONS AS MAY BE IMPOSED BY THE NHL. IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THIS AGREEMENT AND NHL RULES, NHL RULES SHALL GOVERN. League preemption during any Team Home Game will constitute a Force Majeure under this Agreement. Team Games are subject to cancelation, rescheduling, or postponement for any reason, and Club does not make any representation, warranty, covenant or guarantee that any particular number of Team Home Games will take place at the Venue during the Term. The cancelation, rescheduling, relocation, or postponement of any Team Home Games will not constitute a default under this Agreement and Licensee will not be entitled to any credit or refund with respect to any such cancelled, rescheduled, relocated, or postponed Team Home Game.
u. Counterparts. This Agreement may be executed in any number of counterparts, each of which will be deemed an original, but all of which taken together shall constitute one single agreement. This Agreement may be delivered by electronic transmission of an executed counterpart by any signatory hereto, and electronic transmission shall be the same as delivery of an original ink signed counterpart.