HomeMy WebLinkAboutActive Network
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Hosted Global Services Aareement
This Hosted Global Services Agreement ("Agreement") is made effective as of ~ IS, 2006 and entered into between The Active
Network, Ltd., a British Columbia corporation, ("Active" or "we" or "us") and the City of Auburn ("you" or "your" or "Agency"). Active agrees to
provide you the Services (as defined below) subject to the following terms and conditions:
1 . Services,
We will provide you with access to a fully-hosted version of Active's hosted product, "the Product", through our website. To assist us in the
successful implementation and promotion of the Services, you agree to provide us with certain information requested by us relating to your
organization. The Services and the functionalities and features of the Product and related consulting fees are more speCifically described in
Exhibit 1 attached hereto and made a part hereof. "the Product" shall be defined as "Class Hosted Internet Registration for classes and
programs offered by the City of Auburn's Parks and Recreation Department".
2. License to Intellectual Propertv/Promotion.
a) Active shall retain all right, title and interest in and to the Product and its software, trademarks, service marks, logo and trade names
worldwide ("Intellectual Property") subject to a limited license necessary to perform this Agreement. You shall use the Intellectual
Property only as provided, and shall not alter the Intellectual Property in any way, or act or permit action in any way that would impair
Active's rights in its Intellectual Property. You acknowledge that your use of the Intellectual Property shall not create in you or any
other person any right, title or interest in or to such Intellectual Property. Any goodwill accruing from the use of the Intellectual
Property shall inure solely to the benefit of Active,
b) Active hereby grants to you a limited, non-exclusive, non-transferable license (i) to use the Product in accordance with Active's
specifications, and (ii) to display, reproduce, distribute and transmit in digital form Active's name and logo in connection with promotion
of the Services. You hereby grant to Active a limited non-transferable license to use, display, reproduce, distribute, and transmit in
digital or printed form information provided by you relating to your organization, including your organization's name, trademarks,
service marks and logo, in connection with the implementation and promotion of the Services and the promotion of your organization.
At your discretion you will make reasonable efforts to promote and encourage adoption of the Services, including the listing of the
Powered by Active logo on the website, on registration forms and in newsletters or promotional information regarding registration.
3. Information Securitv.
We will collect information, including names, addresses, credit card information and other information required by you, from individuals
registering for your Activities through the Website. Such information shall be stored on a secure remote server and in the manner referred
to in Exhibit 2, which may be periodically updated by Active. You may access this information at any time by downloading it from our
servers using your private password and "login" identifier. If you are unable to access your registrants' information through the event
director portion of the Website, upon request we will send such information to you via e-mail, fax or airmail. You will be responsible for
protecting the privacy and security of any information that you retrieve from our servers and shall prevent any unauthorized or illegal use or
dissemination of such information. . All information collected by Active shall be jointly owned by Active and you. Active will not sell or in
any manner distribute or market the information collected to any party not expressly identified in this agreement.
4. Privacv.
Each party shall comply with all applicable laws, regulations and guidelines (including each party's privacy policy) governing online privacy
in fulfilling its obligations hereunder and in collecting and using personal information about users of the Website.
5. Fees.
Transactions entered directly by participants through the Website will be assessed the customary service fee charged by Active to online
registrants ("Service Charge"), as described below. Each online registrant will pay the event registration fee charged by Agency plus a
Service Charge equal to 6.5% of the registration fee plus $,50, with a minimum Service Charge of $2.00. If the registration fee is between
$150-$500, the Service Charge will be 3.5% plus $5.00, and for fees above $500, the Service Charge will be 2.5% plus $10.00. Upon 30
days advance notice to you, we may change the Service Charge and you agree to such change unless you provide us with written
objection to such change within 30 days from the date such change is first implemented. We will be responsible for collecting all
registration fees charged by you and all Service Charges assessed by us. Credit card processing fees shall be our responsibility. All
registration fees, except Service Charges, are your exclusive property. Any registration fees collected by us will be sent to you twice a
month and Service Charges shall be retained by us. You shall guarantee and pay to Active a minimum aggregate Service Charge, whether
through offline or online transactions, of $3,000 per calendar year (the "Minimum Annual Service Charge"). You shall pay to Active the
difference between such Minimum Annual Service Charge and the actual Service Charges collected by us during such year, which will be
billed at the end of each year beginning from the date set forth below. Active shall not be responsible for processing or making any
refunds. All credit card refunds processed will be assessed a $.10 fee charged by Active to you. Active may reimburse itself for any credit
card charge backs and associated fees out of registration fees collected by it. In the event such funds are not available, you agree to
reimburse Active for any charge backs or refunds. You will have access to reports detailing all transactions processed, including refunds.
6. Consultina Fees.
Consulting Fees are more specifically described in Exhibit 1. All fees set forth in this Agreement and in Exhibit 1 will be due within 30 days
of invoice date. Each Fee is due on or prior to the 15th day of the first month of the billing period. Any Fees rendered later than this
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deadline shall accrue interest at the annual rate of 10%. In the event of delay in paying a Fee, you
shall reimburse Active for any legal fees incurred by Active in its collection efforts.
7. Disclaimer of War ran tv/Limitation of Liabilitv.
Apart from the service level guarantee described below, Active expressly disclaims any warranty that the use of its Intellectual Property or
the Services will be uninterrupted or error free or that the specifications will meet your requirements. The Intellectual Property and Services
are provided to you on an "AS-IS" basis without warranties of any kind, either express or implied, including without limitation warranties of
merchantability or fitness for a particular purpose. Active shall not be liable for indirect, incidental, consequential, or lost profit damages.
Active's total liability under this Agreement is limited to the amount of registration fees retained and not distributed to you and Service
Charges collected and retained hereunder.
Active hereby guarantees a service level of 99% uptime for the Product. However, Active maintains the right to temporarily halt service for
pre-planned upgrades, patches and maintenance. Active will notify you in advance if such activities will require a halt in service lasting
longer than four hours. If any of the above conditions are not met during the term of this agreement, it shall be considered a material breach
of said agreement and you shall have the right to terminate the agreement without penalty. Active will not guarantee nor be held liable for
any systems that are outside of Active's direct control and administration.
8. Term and Termination.
The term of this Agreement shall be for one (1) year from the date set forth below, with automatic renewals for one (1) year terms thereafter
until either party gives written notice to terminate this Agreement no less than ninety (90) days prior to the end of a term. Either party may
terminate this Agreement upon a material breach by the other party if such breach is not cured within thirty (30) days following written
notice to the breaching party.
9. Representations and Warranties.
Each party represents and warrants that it has the necessary and full right, power, authority and capability to enter into this agreement and
to perform its obligations hereunder; that it owns or controls the rights granted or licensed to the other party herein; that the execution and
performance of its obligations under this Agreement will not violate any known rights of any third party, any contractual commitments or any
applicable federal, state and local law or regulation; and that to its knowledge the marks, logos and intellectual property licensed to the
other party herein do not violate the proprietary rights of a third party.
10. Exclusivitv
Active will be the sole and exclusive provider of the online hosted registration services for your agency's Parks, Arts and Recreation
Department for the term of this Agreement.
11. Indemnification.
Each party shall indemnify and hold harmless the other party and its directors, officers, employees, affiliates and agents, against any claim,
demand, cause of action, debt or proceedings (whether threatened, asserted, or filed) and all related damages, losses, liabilities, cost and
expenses (including reasonable attorneys' fees), to the extent that: (i) it is based upon the indemnitor's breach of a representation,
warranty or obligation hereunder; (ii) it arises out of the indemnitor's gross negligence or willful misconduct; or (Hi) it is based upon the
indemnitor's violation of any applicable federal, state or local law or regulation. You shall indemnify and hold harmless Active against any
claim or cause of action to the extent that it is based on injury to a participant in any of your Activities.
12. Arbitration.
Any controversy or claim arising out of or relating to this agreement shall be settled by binding arbitration in accordance with the American
Arbitration Association (AAA) rules then in force and effect. The arbitration, including the rendering of an award, shall take place in the
State of Washington. The arbitrator or arbitrators shall apply the substantive law of the State of Washington Judgment on the award
rendered by the arbitrator or arbitrators may be entered in any court of competent jurisdiction.
13. Miscellaneous.
Any notices shall be in writing by fax or airmail. Neither party may assign its rights or obligations arising out of this Agreement without the
other party's prior written consent, except that Active may assign this Agreement in connection with any sale of all or substantially all of its
assets or any other transaction in which more than fifty percent of its voting securities are transferred. This Agreement shall be governed
by the laws of the State of Washington. This Agreement contains the entire understanding of the parties regarding the subject matter and
can only be modified by a subsequent written agreement executed by both parties. In any action or suit to enforce any right or remedy
under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its costs, including
reasonable attorneys' fees. Sections 2, 7, 10, 11 and 13 of this Agreement shall survive any termination or expiration of this Agreement.
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Exhibit 1
Hosted Product: Class Hosted Internet Registration
Consulting Services Rate per Hour Number of Total Services
Hours Cost
A. .... .... .._..& $125 8 $1.000
B. ..... ...... '~'II<::
B.i. Standard Consultants $155
B.ii. Senior Consultant / Proiect Planner $220
B.iii. Technical Specialist $250
C. On Site 3 days or More (PLUS AIRFARE)
C.i. Standard Consultants $125
C.ii. Senior Consultant / Proiect Planner $190 48 $9,120
C.iii. Technical Specialist $220
D. Dr.)
D.i. Standard Consultants $100
D.ii. Senior Consultant / Proiect Planner $190
D.iii. Technical Specialist $220
E. -
E.i. Standard Consultants $75
E.ii. Senior Consultant / Proiect Planner $75
E.iii. Technical Specialist $75
NOTE THA T RA TES SHOWN INCLUDE ALL TRAVEL EXPENSES OTHER Totals 56 $10,120
THAN AIRFARE
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