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change, alteration or modification of this Agreement shall
<br />be effective unless made in writing and signed by both
<br />parties hereto. The section and paragraph headings and
<br />captions in this Agreement are for reference and
<br />convenience only and in no way define or describe the
<br />scope or intent or otherwise affect this Agreement or its
<br />provisions. If any provision of this Agreement is deemed to
<br />be invalid, it shall be considered deleted herefrom and shall
<br />not invalidate the remaining provisions.
<br />L. Should Sponsor (1) fail to perform any
<br />material obligation required of Sponsor pursuant to the
<br />terms and conditions of this Agreement, or (2) otherwise be
<br />in default under this Agreement and shall have failed to
<br />cure, or commence the cure of, such default within five (5)
<br />days upon notice thereof from Disney, Disney may, in
<br />Disney's sole discretion, terminate this Agreement
<br />immediately, and Disney shall have no further obligation to
<br />Sponsor whatsoever. Immediately upon termination,
<br />Sponsor shall discontinue the display and use of any
<br />remaining Fiesta Materials and Sponsor shall destroy or
<br />otherwise dispose of all such Fiesta Materials, as instructed
<br />by Disney in writing, and shall provide Disney with
<br />verification that such destruction or disposal has been
<br />accomplished. Upon the expiration or sooner termination
<br />of this Agreement, Sponsor shall return to Disney all
<br />Disney Materials and theme park tickets and other items
<br />previously issued by Disney to Sponsor. If Disney
<br />terminates this Agreement pursuant to this paragraph,
<br />Disney shall, without prejudice to any other right or remedy
<br />available to it, be entitled to retain any and all monies
<br />theretofore paid by Sponsor hereunder.
<br />M. This Agreement has been entered into in
<br />the State of California and shall be construed and interpreted
<br />in accordance with the laws of the State of California without
<br />regard to conflicts of laws principles. Any legal proceeding of
<br />any nature brought by either party against the other to
<br />enforce any right or obligation under this Agreement, or
<br />arising out of any matter pertaining to this Agreement shall be
<br />submitted for trial, without jury, exclusively before the
<br />Superior Court of California in and for Orange County, or, if
<br />the Superior Court does not have jurisdiction, then to such
<br />other court sitting in Orange County having subject matter
<br />jurisdiction. The parties agree to accept service of process
<br />outside the State of California, and expressly waive all rights
<br />to trial by jury regarding any such matter.
<br />N. Any notice or other communication
<br />required or permitted hereunder shall be in writing and shall
<br />be deemed given if: (1) delivered personally to an officer of
<br />the party to be notified; (2) sent by facsimile transmission to
<br />the facsimile number designated by the receiving party; (3)
<br />sent by e-mail to the e-mail address designated by the
<br />receiving party; or (4) sent by overnight courier or United
<br />States registered or certified mail, postage prepaid, return
<br />receipt requested, to the receiving party's mailing address
<br />set forth on the first page of this Agreement or such other
<br />address as the receiving party may designate in writing by
<br />registered or certified mail, return receipt requested, to the
<br />other party,
<br />O. The failure of any party hereto to insist
<br />upon the strict performance of this Agreement, or any of
<br />the terms, covenants, representations or conditions hereof,
<br />shall not be deemed a waiver of any rights or remedies that
<br />such party may have and shall not be deemed a waiver of
<br />any subsequent breach in respect of any such terms,
<br />covenants, representations and conditions.
<br />R If the performance by either party of any
<br />nonmonetary obligation under this Agreement is directly
<br />delayed or prevented in whole or in part by any cause not
<br />reasonably within its control (including, without limitation,
<br />acts of God, war, civil disturbances, accidents, damage to
<br />its facilities, labor disputes, acts of any governmental body,
<br />or failure or delay of third parties), it shall be excused,
<br />discharged and released of performance to the extent such
<br />performance is so directly limited or prevented without
<br />liability of any kind. Nothing herein contained shall be
<br />construed as requiring either party to accede to any
<br />demands of labor or labor unions, suppliers or other entities
<br />which it considers unreasonable. Each party shall use its
<br />reasonable efforts to minimize the duration and
<br />consequences of any failure of or delay in performance
<br />resulting from a "Force Majeure" event.
<br />Q. All ideas, proposals and suggestions
<br />provided by Sponsor during the Fiesta shall be deemed non-
<br />proprietary and may be used by the Disney Companies
<br />without restriction or obligation.
<br />R. None of the rights of Sponsor under this
<br />Agreement are exclusive to Sponsor. No consumer,
<br />contestant or other person or entity who participates in the
<br />Fiesta shall be a third party beneficiary under this Agreement
<br />or have any rights under this Agreement and Sponsor shall
<br />indemnify, defend and hold harmless Disney and its affiliates
<br />from any Loss resulting from claims from such persons under
<br />this paragraph.
<br />S. In no event shall Disney be liable to
<br />Sponsor under or in connection with this Agreement for any
<br />loss of profit or any other commercial damage, including,
<br />without limitation, incidental, consequential, special,
<br />exemplary, punitive and/or other direct or indirect damages of
<br />any nature, for any reason, including, without limitation, the
<br />breach of this Agreement or any expiration or earlier
<br />termination of this Agreement, whether such liability is
<br />asserted on the basis of contract, tort (including, without
<br />limitation, negligence or strict liability) or otherwise, even if
<br />Disney has been warned of the possibility of such damage.
<br />Any liability Disney may have to Sponsor shall in no event
<br />exceed the total amount of the compensation received by
<br />Disney from Sponsor under this Agreement. The provisions
<br />of this paragraph shall survive the expiration or earlier
<br />termination of this Agreement.
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