MEMBERSHIP - TERMS AND CONDITIONS
As part of the consideration for the 2016-17 Season Ticket Membership or Partial Plan Membership (as applicable) (the “Membership”) being licensed hereunder to the Member (as defined below) by Philadelphia 76ers, L.P. (such entity, together with the Philadelphia 76ers National Basketball Association (“NBA”) team operated by such entity, the “76ers”), the Member hereby agrees to (i) timely pay the charges set forth in the payment form(s) or invoice(s) (whether in hard copy, electronic or other format) relating to Member’s Membership subscription (the “Payment Form”; and the aggregate charges set forth therein, the “Membership Fee”), (ii) comply with the other terms and conditions set forth in the Payment Form, and (iii) comply with the terms and conditions that are set forth below and/or otherwise referenced herein or on mysixerstickets.com (all such terms and conditions, together with the Payment Form, this “Membership License”). Each ticket covered by or otherwise licensed pursuant to this Membership License shall be referred to herein as a “Ticket”. Tickets and other benefits or privileges of Membership shall be referred to herein as “Membership Privileges”.
- Member. The “Member” shall be the one person or legal business entity that is on record in the 76ers’ database as the registered holder of the Membership. If a Membership is registered in the name of a legal business entity, a contact person must be identified for the limited purpose of correspondence and contact. The 76ers’ acceptance of payment for Tickets or other Membership Privileges from any person or entity other than the Member does not grant any rights to Tickets or other Membership Privileges, any account access or any future account or credit rights, nor constitute an assignment or transfer thereof, to such person or entity.
- Term. The term of this Membership License (the “Term”) shall commence on the date Member makes full or partial payment of the Membership Fee in accordance with Section 3 below and subject to early termination as provided herein, shall continue until the later of (a) the last regular season 76ers home game of the 2016-17 NBA season, and (b) if the Member has the right pursuant to the Membership License to, and does, purchase Tickets to 76ers playoff home games for the 2016-17 NBA season (and such right is not revoked pursuant to the terms herein), the last such home playoff game of the 76ers.
- Membership Fee. In consideration for the right to receive the Tickets and other Membership Privileges, Member shall timely pay to the 76ers the Membership Fee. Payment of the Membership Fee shall be made as selected by Member on the Payment Form. All payments by Member under this Membership License shall be made, without offset, deduction or counterclaim.
- Revocable License. Each Ticket represents a separate, limited and revocable license that only permits the bearer the right to attend the 76ers home game identified on such Ticket and sit in the seat location identified on such Ticket. No property rights, and no renewal or expectancy rights, are conveyed under this Membership License. This Membership License and any or all of the Tickets and other Membership Privileges are revocable at any time by the 76ers, in its sole and absolute discretion, with cause (including a breach of this Membership License) or without cause. Upon any revocation of the Membership License, the 76ers may, in its sole and absolute discretion, (i) cancel, inactivate and revoke any or all Tickets for the remaining games of the 2016-17 NBA season (and deny the holder of such revoked Tickets admission to the Arena for the games to which such revoked Tickets apply) and (ii) revoke any or all other Membership Privileges, including any right Member may have under this Membership License to purchase tickets to 76ers playoff home games for the 2016-17 NBA season. Upon a revocation of the Membership License with cause, the 76ers shall have the right to retain any prepaid portion of the Membership Fee. Upon a revocation of the Membership License without cause, the 76ers shall refund to Member any prepaid portion of the Membership Fee attributable to regular season games for which Tickets are revoked. If the 76ers revokes any Tickets with respect to any particular game with cause but do not revoke the Membership License, no refund will be paid to Member.
- No Right to Renew; Auto-Renew Option. This Membership License covers only those 2016-17 preseason and regular season 76ers home games to which the applicable Membership applies. Member hereby acknowledges and agrees that Member neither has a reasonable expectation, nor any right or privilege, implied or otherwise, to (i) purchase or receive playoff tickets for the 2016-17 NBA season, except for the rights to such playoff tickets granted to Member on mysixerstickets.com, which rights remain subject to 76ers’ rights under Sections 4, 6 and 11, or any subsequent NBA season(s), (ii) purchase or receive tickets or other Membership Privileges for any subsequent season(s) or (iii) renew this Membership License for any subsequent season(s). Member further acknowledges and agrees that if the 76ers (in its sole and absolute discretion) offers Member the opportunity to renew this Membership License, neither such offer nor any acceptance by Member shall create a course of dealing between Member and the 76ers or a reasonable expectation, right or privilege, implied or otherwise, to any further renewal. For Members who selected the Auto-Renew Option on the Payment Form, unless the 76ers has exercised its right not to renew this Membership License for the 2017-18 NBA Season, this Membership License will automatically renew for the 2017-18 NBA season on February 17, 2017, as follows: On or prior to January 31, 2017 (or such other date required by law), Member will receive notice from the 76ers (“Auto-Renew Notice”) setting forth the price(s) and seat location(s), as well as certain terms and conditions, of the Membership License for the 2017-18 NBA season. Member must notify the 76ers, in the manner prescribed by the 76ers in the Auto-Renew Notice, on or before February 16, 2017 that Member wishes not to renew its Membership License for the 2017-18 NBA season, and Member acknowledges that time is of the essence in providing such notice that Member wishes not to renew. If Member does not provide such notice to the 76ers by such date, Member shall be deemed to have accepted Member’s Membership License for the 2017-18 NBA Season upon the terms conditions set forth in or otherwise attached to the Auto-Renew Notice (and available on mysixerstickets.com), and Member’s credit card will be charged a non-refundable amount on February 17, 2017 in the amount set forth in the Auto-Renew Notice, and will thereafter continue to be charged by the 76ers consistent with the payment option selected on the Payment Form for the 2016-17 Membership License.
- Limits on Transferability. Member shall not sell, assign or otherwise transfer for consideration (i) this Membership License, or (ii) any Membership Privileges (other than Tickets), in each case, without the 76ers’ express written consent. Any sale, assignment or transfer of Tickets must comply with applicable law. Upon any violation of this Section 6, the 76ers shall have the right to revoke this Membership License, the Tickets and the other Membership Privileges as a revocation with cause under Section 4.
- Non-Occurrence of Events; Other Events. Nothing herein, including without limitation the 76ers’ issuance of Tickets, shall operate as or constitute any warranty, representation, covenant or guarantee by the 76ers that any number of games (including playoff games) shall occur at Arena. Member acknowledges and agrees that the Tickets are solely for the 2015-16 NBA preseason and regular season games (and, if expressly provided in this Membership License, the right to purchase tickets for playoff games) presented by the 76ers and played at the Wells Fargo Center in Philadelphia, Pennsylvania (the “Arena”), and for the avoidance of doubt, shall not include tickets, or the right to purchase tickets, to any other event or game, including, but not limited to, any NBA All Star or NBA Draft event (each, a “League Special Game”) held in the 76ers’ market or hosted by the NBA at Arena or otherwise in which the 76ers participates. Member acknowledges and agrees that the 76ers and/or NBA may cancel, postpone, reschedule or relocate games for any reason (e.g., move a preseason or regular season game of the 76ers from Arena to an alternate venue for the purposes of playing a League Special Game), as determined in its/their sole discretion, as well as to modify or discontinue, temporarily or permanently, any aspect of the rules, operations and presentations of NBA games and events (“Preemption”). In the event any game for which Tickets have been purchased under this Membership License is not played in Arena for any reason (a “Lost Game”), including, without limitation, a work stoppage or labor dispute by and among the NBA and/or their respective players, Preemption or any other cause, (i) such event shall not be deemed a breach by 76ers of this Membership License, and (ii) Member hereby waives and releases any and all claims Member may have against the 76ers, the other Releasees (as defined in Section 12) and/or the NBA with respect to such Lost Game.
- Use of Images; Unauthorized Reproductions. (A) Member grants permission to the 76ers and the NBA (and their designees and agents) to utilize Member’s and any of Member’s guests and other Ticket holders’ image (and Member represents, warrants and covenants that it has or will obtain all approvals needed to provide such permission), likeness, voice, actions and statements in any live or recorded audio, video, film, or photographic display or other transmission, exhibition, publication or reproduction made of, or at, or in connection with, a 76ers game(whether in or outside the Arena) in any medium, whether now known or hereinafter created, or context for any purpose, including commercial or promotional purposes, without further authorization or compensation. (B) Member agrees not to transmit, distribute or sell (or aid in transmitting, distributing or selling), in any media now or hereafter existing, any description, account, picture, video, audio or other form of exploitation or reproduction of the event or any surrounding activities (in whole or in part) for which a Ticket is issued, in including any or other Membership Privileges.
- Compliance with Rules and Regulations. (A) Member shall, and shall cause all guests using Tickets or other Membership Privileges to, comply with (i) all rules, regulations, policies and procedures adopted from time to time by the 76ers, the Arena and/or the NBA, including, without limitation, (x) all policies with respect to the cancellation, postponement or rescheduling of a 76ers home game, (y) all announcements issued over Arena’s public address system, and (z) the NBA Fan Code of Conduct, and (ii) all applicable federal, state and local laws, rules, regulations and orders of government authorities. (B) 76ers reserve the right to revoke Member’s Membership License, and/or refuse admission to or eject from the Arena any person whose conduct it deems disorderly or otherwise in violation of any rules, regulations, policies, procedures, orders or laws referenced above. If Member or any guest thereof is refused entry to or ejected from the Arena for such reason, Member shall forfeit any claim for a refund or credit. (C) The 76ers reserve the right to take appropriate action against individuals who fraudulently obtain wheelchair and companion seats including, without limitation, ejection and legal action.
- Location Change. The 76ers reserve the right to relocate the Tickets to any other location in the Arena (with a price adjustment, if applicable, based on the rate at which 76ers is offering the new seats for sale at the time of relocation) if 76ers determines, in its sole discretion, such relocation is advisable to facilitate any construction project or other alteration or modification to the Arena, or due to any NBA requirements, government requirements or other reasons beyond the reasonable control of the 76ers. If 76ers exercises such right, 76ers agrees to use its reasonable efforts to provide a reasonably comparable location. Member acknowledges that 76ers makes no guarantee of any specific locations and that the alternative locations will be provided based on availability.
- Default/Termination. Member shall be in default under this Membership License if Member (a) fails to remit any payment in accordance with the terms of this Membership License (including any rejection of any automated payment or debit under any payment plan) or (b) fails to comply with or perform any of the other terms, obligations, covenants, or conditions in this Membership License. Upon any such default, then in addition to any and all other rights and remedies available to the 76ers and its affiliates under this Membership License, at law or in equity or otherwise, the 76ers may, in its sole and absolute discretion, do any one or more of the following: (i) cancel, inactivate and revoke all or a portion of the Tickets and other Membership Privileges (and deny admission into Arena), (ii) apply any amounts previously paid (regardless of which games such amounts are attributable to) towards any remedy provided for herein (with no obligation to return or refund such amounts except as set forth in the proviso to this sentence), (iii) if Member is expressly granted the right to purchase Tickets to 76ers home playoff games in this Membership License, revoke such right, (iv) suspend all or any portion of Member’s rights hereunder, and (v) terminate this Membership License and any or all of Member’s rights under this Membership License, in each case, with no further liability or obligation of any kind to Member, provided that 76ers shall refund to Member any amount previously paid by Member in excess of the damages caused by such default (including costs of collection and other enforcement of remedies for such default). Except as expressly required by applicable law, 76ers shall have no duty to mitigate its damages as a result of a breach or default by Member and any amounts received by 76ers from any re-sale of the Tickets or other Membership Privileges shall not reduce Member’s obligations hereunder. Member agrees to pay all of the 76ers’ costs and expenses (including allocable costs of in-house counsel and all other attorneys’ fees) related to the 76ers’ collection of any amounts due under, or any other enforcement of, this Membership License, whether or not litigation is commenced. Interest on all late amounts due shall accrue from the date of non-payment until paid in full at a rate equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate permissible under Pennsylvania law. Member acknowledges that (i) 76ers plans to fully enforce its rights under this Membership License; and (ii) in entering into this Membership License, Member has not relied upon any prior policies or practices of Member related to enforcement of (or any waiver or failure to enforce) any obligations similar to those contemplated hereunder (for non-payment or otherwise). No failure by the 76ers to exercise any right or remedy in connection with a breach by any person or entity of any provision hereunder (or the corresponding provision in the membership license of another person or entity) shall operate as a waiver of such right or remedy with respect to a breach by any other person or entity (including Member) of such provision (or the corresponding provision in this Membership License or the membership license of another person or entity). The provisions of Sections 8, 11, 12, 13, and 14 shall survive the termination or expiration of this Membership License.
- Liability. (A) The 76ers’ and the other Releasees’ (as defined below) liability for damages of any kind arising out of this Membership License is limited to a refund of the actual purchase price paid by Member for Tickets to games not yet played under this Membership License. This remedy is exclusive. For the avoidance of doubt, in no event shall the 76ers or any other Releasee be liable for any other direct, indirect, incidental special, punitive, exemplary or consequential damages or for lost profits, revenues or business opportunities even if such Releasee has been advised of the possibility of such damages or if such damages were foreseeable. (B) Member, on behalf of itself, its guests and any holder of any Ticket, voluntarily assumes all risk and danger of personal injury (including death), property damage, and all hazards arising from, or related in any way to, use of the Tickets other Membership Privileges, whether occurring prior to, during, or after a 76ers game, in or around the Arena, howsoever caused and whether by negligence or otherwise, including specifically but not exclusively the risk and danger of any injury, loss or damage by basketballs or other equipment, projected or thrown objects, players on the 76ers or the opposing team, or other spectators in any manner whatsoever. Member waives and releases, to the fullest extent permitted by law, all claims, whether known or unknown, relating to or arising from any such injury, loss or damage against 76ers, and their respective affiliates, and the officers, directors, managers, owners, employees, agents, successors and assigns of each of the foregoing (all of the foregoing, collectively, the “Releasees”). Member acknowledges and agrees that the Releasees shall not be responsible for any such injury, loss or damage (including for lost or stolen property). (C) Member shall indemnify and hold harmless, to the fullest extent permitted by law, all Releasees from and against any liabilities, losses, damages, claims, demands, choses in action, costs and expenses, including reasonable attorneys’ fees (including in any action between Member and the 76ers or any other Releasee, or any action by a third party), costs of investigation (whether or not litigation occurs) and litigation expenses, arising out of or related to any act or omission, breach of any provision of this Membership License, or violation of any applicable law, rule, regulation or order, in each case, by Member, any of Member’s guests or any holder of Member’s Tickets.
- Severability. If any term or provision of this Membership License, or the application thereof to any person, entity or circumstance, shall to any extent be held invalid or unenforceable in any jurisdiction, then (a) as to such jurisdiction, the remainder of this Membership License, or the application of such term or provision to persons, entities or circumstances other than those as to which such term or provision is held invalid or unenforceable in such jurisdiction, shall not be affected thereby, (b) the tribunal making such determination shall have the power to (and the parties shall request that the tribunal) reduce the scope, duration, area or applicability of such provision, to delete specific words or phrases, or to replace any invalid or unenforceable provision with a provision that is valid and enforceable and comes closest to expressing the intention of the invalid or unenforceable provision, and (c) each remaining term and provision of this Membership License shall be valid and enforceable to the fullest extent permitted by applicable law. Any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, each of 76ers and Member hereby waives any provision of law that would render any provision of this Membership License unenforceable in any respect. Notwithstanding anything to the contrary in this Membership License, to the extent any portion of Section 14(i) is held to be invalid or unenforceable as to a party, the entirety of Section 14(i) shall be null and void as to that party
a. 76ers’ obligation to provide the Tickets and the other Membership Privileges shall be subject and subordinate to (i) all NBA rules and regulations, (ii) all applicable laws, rules and regulations, and (iii) 76ers right to use the Arena pursuant to any applicable lease or license, as such lease or license may be amended from time to time.
b. 76ers’ retains the right to reschedule the date or the start time of any game and shall not be liable to Member for any reason related to any rescheduling.
c. The 76ers are not responsible for lost or stolen tickets, and any reissuance of tickets shall be at the discretion of the 76ers and may be subject to processing fees determined by the 76ers. Tickets not obtained from sources authorized by 76ers may not be honored.
d. No Ticket may be used for any form of commercial or trade purposes, including, but not limited to, advertising, promotions, contests, sweepstakes, or giveaways, without the express written consent of the 76ers and the NBA.
e. The use of any Ticket or other Membership Privilege hereunder in violation of this Membership License, with or without Member’s knowledge, is Member’s responsibility and Member shall remain absolutely and unconditionally responsible for any such violations.
f. In the event any Ticket(s) is listed at an incorrect price or seat location within the Arena due to typographical or other error, 76ers shall have the right to refuse or cancel any orders placed for such Ticket(s), whether or not the order has been confirmed and Member’s payment processed.
g. All requests and notices from a Member must be provided in writing to Philadelphia 76ers, L.P., 3 Crescent Drive, Suite 300, Philadelphia, PA 19112, Attn: Ticket Sales and Service Dept. or by email to Member’s Account Manager. Such requests shall be submitted with Member’s name, account number, daytime phone number and accompanied by Member’s signature. It is Member’s responsibility to notify the 76ers in writing or by email of any changes to Member’s address, email address and/or phone number.
h. This Membership License shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania applicable to agreements made and to be performed entirely in Pennsylvania and without regard to the conflicts of laws principles thereof.
i. All disputes or claims arising out of or related to this Membership License shall be submitted for arbitration to be conducted in Philadelphia, Pennsylvania, and administered by the American Arbitration Association (the
AAA) in accordance with the then current Rules of the AAA regarding commercial disputes. The award and decision of the arbitrator(s) shall be conclusive and binding upon all parties and judgment upon the award may be entered in any court of competent jurisdiction. Member and 76ers waive any right to contest the validity or enforceability of such award. The purpose of this Section 14(i) is to ensure that any and all disputes or claims that may arise between the parties, and any questions of arbitrability, will be resolved through binding, conclusive and confidential arbitration as opposed to court or administrative litigation. Each party hereby agrees that class action and representative action procedures (including without limitation any AAA Supplementary Rules for Class Actions) shall not be asserted, and shall not apply, in any arbitration covered by this Membership License; that each party shall only submit its own, individual claims in arbitration and shall not assert class action or representative action claims or any claim in a private attorney general capacity against the other in arbitration; that neither party shall be entitled to join or consolidate claims in arbitration by or against other individuals or entities; and that the arbitrator may not consolidate more than one party’s claims, and may not otherwise preside over any form of a representative or class proceeding, with respect to the subject matter of this or any similar agreement to which the 76ers are a party.
j. This Membership License and the terms printed on each individual game Ticket constitute the entire agreement between the parties with respect to Member’s Membership and supersedes all prior and contemporaneous negotiations, understandings or agreements (whether in advertising or marketing materials or otherwise) with respect to the subject matter hereof.
k. None of the provisions of this Membership License can be waived except in a writing signed by the 76ers. No failure by the 76ers to exercise any right under this Membership License shall operate as a waiver of such right, nor shall any single or partial exercise of any right preclude any other or further exercise of that right or the exercise of any other rights. The waiver by the 76ers of any breach of this Membership License shall not be deemed a waiver of any prior or subsequent breach. All remedies of the 76ers shall be cumulative and the pursuit of one remedy shall not be deemed a waiver of any other remedy.
l. Time shall be of the essence with respect to Member’s obligations under this Membership License.
m. Member represents and warrants that (i) it has full power and legal authority to enter into and perform this Membership License in accordance with its terms and (ii) this Membership License has been duly executed and delivered by Member and constitutes a legal, valid and binding obligation of Member enforceable in accordance with its terms.