Purchase Agreement

Suite Regulations

1. Suites may not be used for lodging, sleeping, manufacturing, gambling, illegal purposes or for any other purpose except Event(s) use. General Suite set up and configuration is noted in Schedule “A” herein. The Licensee agrees that neither the Licensor nor Licensor’s Personnel nor its Affiliates have made any representations or warranties as to the suitability or fitness of the Suite or the KeyBank Center for the Licensee's use, nor have they agreed to undertake any improvement to the Suite or the KeyBank Center. The Licensee will accept the Suite "as is" and Licensee and guests and invitees will comply to the KeyBank Center policies and protocols including, but not limited to, those ticket terms and conditions located on the ticketback and KeyBank Center website.
2. Distribution of advertisements, solicitations and canvassing upon the premises is prohibited.
3. Reasonable quantities and sizes of the Licensee's merchandise may be displayed in the Suite, provided they are not visible from outside the Suite and do not disturb other patrons.
4. The Licensor’s prior written approval is required for Licensee to bring in other property or decorations into the Suite (“Licensee Property/Decorations”) or for the installation of additional lighting, window, floor or wall coverings or paint, or additional video, television, telephone or other electronic equipment or wiring. Such approval will be at Licensor sole discretion. Except for incidentals related to wall decorations; marks, nail or screw holes and other defacements of the Suite or the KeyBank Center are prohibited.
5. Any filming, video or audio taping, photographs, records and all other depictions of KeyBank Center and/or the Event(s) are prohibited.
6. Storage shall be limited to the coat closet and other cabinets within the Suite, and there shall be no access above the standard ceiling line or below the standard floor.
7. The Licensee is responsible for the costs of repairing all damage to the KeyBank Center and/or the Suite resulting from the moving or maintenance of any of the Licensee's Property.
8. The Licensor is not responsible for any loss of or damage to the Licensee's Property unless caused by the negligent or intentional misconduct of the Licensor's agents, employees or contractors, or any other person.
9. Any activity or possession which would result in an increase of any insurance premium or cause the cancellation of any insurance policy applicable to the Suite or the KeyBank Center is prohibited.
10. Any activity which is offensive, noisy, dangerous or may disturb the Licensor or any KeyBank Center patron is prohibited. No food or beverages may be brought or delivered to the Suite except through Delaware North Sportservice.
11. As a condition for the use and enjoyment of the Suite, the Licensee and its guest and invitees shall also comply with the policies and guidelines issued by any federal, state, county, town or village governmental entity, the New York State Department of Health, the Erie County Department of Health and/or the Centers for Disease Control. Specifically, as relate to the COVID 19 pandemic, such rules may include, but not be limited to, vaccination, social distancing, limitation on gatherings, wearing a face covering, COVID 19 diagnostic testing and contact tracing.
12. The Suite must be kept in good order and cleanliness, and should Licensee occupy the Suite for more than one day for the Event(s), cleaning services such as dusting and routine housekeeping will be provided by the Licensor, provided the Suite is unoccupied at the time such services are routinely provided. Cleaning services shall not include the Licensee's Property or Decorations, moving of furniture or any other special services. The defacement or marring of the Suite or the KeyBank Center in any manner, including the rest room, is prohibited. The Licensee shall be responsible for the expense of any breakage, stoppage or damage resulting there from. Material may not be thrown from any Suite opening or doorway. Any damage, injury or defects to or in the Suite or any plumbing, electrical, heating or air conditioning equipment or apparatus must be promptly reported to the Licensor or its designee.
13. Licensor may control Suite access through security personnel and/or devices, requiring a Suite Ticket for the Event(s). Subject to New York State regulations, no more than 18 persons are permitted in the Suite at any time (except Party Suite which allows 36 persons). The Licensor is not liable for any damages or otherwise for any error in granting or denying access. Access to the Suite may be denied entirely in the Event(s) of an emergency, as determined in the Licensor's judgment. The Licensor reserves the right to enter the Suite for inspection, performance of its obligations under the license, in emergencies, and as otherwise necessary for the operation or improvement of the KeyBank Center, by using a key retained for that purpose, or otherwise without abatement of fee or other compensation or liability on the part of Licensor to the Licensee, so long as the Licensee's enjoyment is not unreasonably disturbed.
14. The Licensor is not responsible for any theft or robbery from the Suite or the personal effects of the Licensee, or of Licensee’s Personnel and Guests. Duplicate keys will be provided at a reasonable charge, and shall be surrendered upon the termination or expiration of the license. The Licensee is responsible for the cost of replacing lost keys or changing locks because of misplaced keys, but (unless authorized by Licensor) lock installations or lock changes upon the Suite and cabinet doors are prohibited.
15. Parking in unauthorized areas may result in removal of the offending vehicle at the Licensee's cost, without any liability on the part of the Licensor or the Licensor's Personnel with respect thereto.
16. Although food and beverage service is provided through a third-party concessionaire, the sale, consumption, service and availability of alcohol in the Suite may be restricted by the Licensor in its sole discretion, and is subject to compliance with all applicable governmental statutes, ordinances and regulations. The Licensee is responsible for controlling the conduct including, but not limited to, the consumption of alcohol, of all patrons within the Suite. The Licensor may exclude or expel from the KeyBank Center any person who, in its judgment, is intoxicated or under the influence of alcohol or drugs, or who violates the Suite Regulations or the license.
17. The Licensee may not voluntarily nor involuntarily sell, assign, hypothecate or otherwise dispose of any of its rights or interests arising under this Agreement without the Licensor's prior written approval. Consistent with this, Licensee acknowledges that it shall not permit the Suite or Suite tickets to be used in connection with any contest or promotion without the prior written approval of Licensor.
18. Neither the Licensee, nor the Licensee’s Personnel and Guests, shall be considered the Licensor's employees or agents, or to have been authorized to incur any expense on behalf of or bind the Licensor in any way. The Licensor shall not be liable for any acts, omissions or negligence of the Licensee or the Licensee's Personnel and Guests. The Licensor and the Licensee shall not be construed to be either partners or joint venturers. This Agreement is not a lease or sublease, and the relationship of the parties shall be solely that of licensor and licensee.
19. The Licensee shall be in default if it fails to perform any material obligation hereunder which is not cured immediately after written notice. If a default is not timely cured by the Licensee, the Licensor is excused from performing obligations hereunder and may: (i) terminate this Agreement; or (ii) continue this Agreement and recover any resulting damages.
20. TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSOR WILL NOT BE LIABLE TO LICENSEE (OR ITS EMPLOYEES) FOR INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, ARISING AS A CONSEQUENCE OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREUNDER.
21. The Licensor reserves the following rights (which shall be exercisable without notice and without liability on the part of Licensor to the Licensee for injury to person or damage to property, and which in no Event(s) shall constitute an eviction, constructive or actual, or a disturbance of the Licensee's use or possession, or give rise to any reduction of fees or any other claim of any kind by the Licensee): (a) the right to make any change of the name or street address of the KeyBank Center; (b) the right to make additions, alterations or improvements to the KeyBank Center or the parking facility; (c) right to close doors and the common area and to interrupt or suspend services; (d) right to control and extinguish the Suite lighting during the Event(s) and at such other times as the Licensor deems appropriate; (e) right to Event(s) access to the Suite as required by any governmental authority; (f) right to grant exclusive rights for any business in or service to the KeyBank Center; (g) right to control and receive revenues from the use and sale of beverages, foods, candies, cigarettes and other commodities and concessions within the Suite and the KeyBank Center; (h) right to install all signs located on or in the Suite or elsewhere in the KeyBank Center, to receive all revenue therefrom, and to designate all sources of sign painting and lettering; (i) right to grant or withhold any consent or approval in its sole discretion; (j) right to waive a Suite Regulation in its sole discretion. The Licensor is not responsible or liable to the Licensee for any breach or nonperformance of these Regulations by any other person or entity.
22. Licensee shall indemnify, defend and hold harmless Licensor and its Affiliates and Personnel, to the fullest extent permitted under applicable law, from and against any and all claims, liabilities, losses, demands and costs, including attorney's fees arising from any violation or default by Licensee of these Suite Regulations or otherwise arising from: (i) any injury to any person or damage to any property whatsoever occurring in, on or about the Suite; (ii) any negligence or willful misconduct of Licensee or Licensee’s Personnel and Guests; or (iii) the sale, service, use or consumption of alcohol in the Suite including, but not limited to, Licensee’s violation or default of all Dramshop laws, Social/Business Host Liability laws or any and all other laws or ordinances that regulate or oversee the sale and/or service of alcohol to third parties. Termination of the Agreement shall not affect the continuing obligations of the indemnitor. Upon written request of any indemnitee hereunder, the indemnitor will assume the defense of any claim, demand or action subject to indemnification hereunder, and will, upon request by such indemnitee, allow the indemnitee to participate in the defense thereof, such participation to be subject to the control of the action by the indemnitor and at the expense of the indemnitee.
23. Neither party shall be liable to the other for failure to perform hereunder if, and to the extent, such failure results from a Force Majeure Event (defined below). Financial difficulty shall not be considered a Force Majeure Event. Upon occurrence of a Force Majeure Event and to the extent such occurrence interferes with either party’s performance of this Agreement, such party shall be excused from performance of its obligations (other than payments), provided such party uses its best efforts to avoid or remove such causes of non-performance as soon as possible. “Force Majeure Event” shall mean any act, event or condition (except, in each case, for the payment of money) which is beyond the reasonable control of the party asserting the Force Majeure (defined below), which wholly or partially prevents or delays the performance of any of the duties, responsibilities or obligations of the party asserting the Force Majeure. The term “Force Majeure” shall include, but not be limited to, an act of God; an act of the public enemy; civil disturbance or unrest; lawsuits; injunctions; lightning; fire, explosion or other serious casualty; water damage; terrorist attack (or threats thereof); epidemics; strike, lock-out, work stoppage or labor dispute (without regard to the reasonableness of any party’s demands or any party’s ability to satisfy such demands); accident or sabotage; unusually severe weather (including hurricane, earthquake, tornado, landslide or flood); war (whether declared or not); blockades; embargoes; condemnation or other taking by the action of any governmental body on behalf of any public, quasi-governmental or private entity; other governmental action or change in Law; or shortages or failures of sources of labor, material, energy, fuel, water, other vital utility, equipment or transportation.In the event that COVID 19 pandemic results in: (x) any Event Licensee is scheduled to attend during the Term being cancelled or (y) all Events within the Term of this Agreement is played but fans are NOT allowed to attend under any circumstances, then, in the case of either (x) or (y), the Licensor shall elect, at its discretion, to either (i) extend the Agreement for a period following COVID 19 so as to provide Licensee comparable benefits; (ii) provide to Licensee a substitute benefit of comparable value, as mutually determined by the parties in good faith, as a “make good” for the loss of such benefit; or (iii) permit a pro rata reduction to the fee, calculated in a manner acceptable to both parties, acting reasonably.
24. Upon expiration or termination of this Agreement for any reason, the Licensee immediately and peaceably shall surrender the Suite to the Licensor in a safe and clean condition, in good order and repair, reasonable wear and tear excepted.
25. Each party represents and warrants that: (i) it has the authority to enter into this Agreement and to fully perform its obligations hereunder; (ii) this Agreement does not and will not conflict with any of its other obligations to any third-parties; and (iii) it complies and will continue to comply throughout the duration of this Agreement with all applicable laws and regulations in its performance of this Agreement, including any required vendor registrations or gaming approvals. Any individual executing this Agreement on behalf of, or as representative for, any person, company, entity, or organization represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of such person, company, entity, or organization and that this Agreement is binding upon such person, company, entity, or organization in accordance with its terms.
26. This Agreement represents the entire agreement between Licensor and Licensee with respect to the subject matter hereof. Except as otherwise provided in this Agreement, this Agreement shall not be amended, modified, or terminated, and no provision hereof shall be deemed to have been waived by either party, except by a written instrument signed by both Licensor and Licensee. Any waiver shall be specifically limited to its terms and shall not be deemed applicable to subsequent like circumstances. All rights and remedies contained in this Agreement shall be cumulative and shall not limit any other right or remedy to which a party may be entitled. This Agreement may be executed in two (2) or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Signatures that are transmitted electronically or by facsimile will have the same effect as original signatures.
27. All notices and requests in connection with this Agreement shall be given in writing and will be deemed given as of the day they are received either by email (to address above) messenger or delivery service at the address below:

If to Licensee:

Listed on order summary

If to Licensor:

Buffalo Sabres / KeyBank Center

One Seymour H. Knox III Plaza,

Buffalo, New York 14203

28. This Agreement will be governed by the laws of the state of New York, without regard to its conflicts of law provisions or any other provision of law that would allow for or mandate the application of the substantive laws of any jurisdiction other than the state of New York. All claims related to this Agreement shall be brought in the appropriate state or federal courts located in Buffalo, New York, and the parties irrevocably agree to the exclusive jurisdiction of the federal and state courts located in Buffalo, New York.

DEFINITIONS:

“Affiliate” means any parent, subsidiary, member or other entity which is controlled by, or is the under common control with, the subject entity.

“Licensor's Personnel” means the officers, directors, employees, representatives, agents, partners, contractors and consultants of the Licensor and its Affiliates.

“Licensee's Personnel and Guests” means the officers, directors, employees, shareholders, representatives, agents, guests and invitees of the Licensee.

“Licensee Property” means Licensee owned movable furnishings and equipment permitted to be brought into Suite by Licensor.

“Licensee Decorations” means Licensee owned decorations of a minor, non-structural nature, permitted to be brought into Suite by Licensor.