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HomeMy WebLinkAboutAG 17-054 ■ RETURN TO: 'A I EXT: i,Z i i_ CITY OF FEDI,--r• WAY LAW DEPARTME ROUTING FORM . ORIGINATING DEPT./DIV: ,/ Ors t 1 • ORIGINATING STAFF PERSON: 1I! �►�`•y EXT: 44-l4" 3. DATE REQ.BY: " /01-41/1- TYPE OF DOCUMENT(CHECK ONE): ❑ CONTRACTOR SELECTION DOCUMENT(E.G,RFB,RFP,RFQ) ❑ PUBLIC WORKS CONTRACT ❑ SMALL OR LIMITED PUBLIC WORKS CONTRACT ❑ PROFESSIONAL SERVICE AGREEMENT ❑ MAINTENANCE AGREEMENT ❑ GOODS AND SERVICE AGREEMENT ❑ HUMAN SERVICES/CDBG ❑ REAL ESTATE DOCUMENT ❑ SECURITY DOCUMENT(E.G.BOND RELATED DOCUMENTS) ❑ ORDINANCE ❑ RESOLUTION ❑ CONTRACT AME MENT(AG#): ❑ ERLOCAL. OTHER ' .1 .1& i• a i l...i.. v∎ ' !1.l . PROJECT NAME: A1 ( - ' Vi`C. ,6 i NAME OF CONT' CTO'• ALtd( ' I ��11 _ J.J� # r a ADDRESS:. I � vIC�y��►�, ' LTl_� �t;!� TELEPHONE E-MAIL: . ��ZIWYS- E1�,alre FAX: SIGNATURE NAME: TITLE • EXHIBITS AND ATTACHMENTS:❑ SCOPE,WORK OR SERVICES ❑ COMPENSATION ❑ INSURANCE REQUIREMENTS/CERTIFICATE ❑ ALL OTHER REFERENCED EXHIBITS ❑ PROOF OF AUTHORITY TO SIGN ❑ REQUIRED LICENSES ❑ PRIOR CONTRAACTT//AMENDME�NTTS/� . TERM: COMMENCEMENT DATE: (47�. 65- / I ' ' COMPLETION DATE $yfe�u5/cPcg26 TOTAL COMPENSATION$ ! oa D fi 1i 0004k-�4 V (INCLUDE EXPENSES AND SALES TAX,IF ANY) (IF CALCULATED ON HOURLY LABB R CHARGE-ATTA SC` LES OF EM YEES TITLE AND LIDAY RATES) REIMBURSABLE EXPENSE:[ YES ❑NO IF YES,MAXIMUM DOLLAR OUNT: $ VV IS SALES TAX OWED ❑YES ❑NO IF YES,$ PAID BY:❑CONTRACTOR❑CITY RETAINAGE: RETAINAGE AMOUNT: ❑RETAINAGE BY(SEE CONTRACT) OR ❑RETAINAGE BOND PROVIDED ❑ PURCHASING: PLEASE CHARGE TO: 115 5SOQ' //5_ 55 3 - 20 - 0. DOCUMENT/CONTRACT REVIEW INITIAL/DATE REVIEWED INITIAL/DATE APPROVED 0/PROJECT MANAGER It DIRECTOR ; ❑ RISK MANAGEMENT (IF APPLICABLE) ❑ LAW 317-Z111'/tle 1. COUNCIL APPROVAL(IF APPLICABLE) COMMITTEE APPROVAL DATE:IOW COUNCIL APPROVAL DATE:31 1 I 2. CONTRACT SIGNATURE ROUTING ❑ SENT TO VENDOR/CONTRACTOR DATE SENT: DATE REC'D: ❑ ATTACH: SIGNATURE AUTHORITY, INSURANCE CERTIFICATE,LICENSES,EXHIBITS ❑ CREATE ELECTRONIC REMINDER/NOTIFICATION FOR 1 MONTH PRIOR TO EXPIRATION DATE (Include dept.support staff if necessary and feel free to set notification more than a month in advance if council approval is needed.) INITIAL/DATE SIGNED ❑ LAW DEPARTMENT lX SIGNATORY(MAYOR OR DIRECTOR) 4llit ❑ CITY CLERK / inIfelal 1 0 ' ❑ ASSIGNED AG# AG# (a-05 0 ❑ SIGNED COPY RETURNED DATE SENT: 03-30`n- ;OMMENTS: tilt L v k c�,�e.-kb Ccxr414/M tome- w;►-l4o4,+ a c Ui oo, re co i z f`l :!Str `«!ll4 V EINIMce►. AUDIENCEVIEW SUBSCRIPTION SERVICES AGREEMENT THIS AUDIENCEVIEW SUBSCRIPTION SERVICES AGREEMENT (this "Agreement ") is made as of March 27, 2017 (the "Effective Date ") by and between AudienceView Ticketing Corporation, having its head office at 200 Wellington Street West, 2nd Floor, Toronto, ON, M5C 3C7, Canada ( "Service Provider ") and City of Federal Way, having its head office at 33325 8th Ave. South, Federal Way, WA 98003 ( "Client "). NOW THEREFORE, in consideration of the covenants and agreements set out in this Agreement, and other good and valuable consideration, the parties agree as follows: 1. SERVICES 1.1 Subscription Services. Subject to the terms and conditions of this Agreement, and in consideration of the payment by Client of the Service Fees, Service Provider will make the services identified in Part I of Schedule A (the "Subscription Services ") available to Client in such a manner that the Client may access the functionality of the Subscription Services in respect of events taking place at the Venue, as such functionality is referenced in Part I of Schedule A. In addition to the AudienceView Subscription service, if Client has currently elected to subscribe for additional Subscription Services, those are also identified in Part 1 of Schedule A as Subscription Services. 1.2 Implementation Services. In connection with the deployment and provision of the Subscription Services, Service Provider will provide the implementation services as set out in Part II of Schedule A (the "Implementation Services "), and will, upon Client's request, provide optional implementation services, such as additional data migration, Web design and any other services as identified in Part II of Schedule A (collectively, with the Support Services defined below, the "Other Services "; the Subscription Services, the Implementation Services and Other Services collectively are defined as the "Services "). In the event that Client desires to engage Service Provider for services outside of those subscribed for herein, Client may do so pursuant to a separate ordering document (an "Order"). In the event that, and only in the event that, the Order (i) is signed by both Service Provider and the Client and (ii) expressly indicates that such Order is to be incorporated into this Agreement, the terms of the Order document shall prevail in the event of a conflict between this Agreement and the Order. 1.3 Technical Support. Provided that Client has paid all outstanding Service Fees and is otherwise in compliance with this Agreement, Service Provider will provide Client with ongoing support during the Term as set out in Part III of Schedule A (the "Support Services "). In no event shall Service Provider be responsible or liable for any errors, bug or other problems caused by hardware or software not provided by Service Provider. 1.4 Changes to Subscription Services; Updates. Client acknowledges that Service Provider has the right to change, modify, update, and add to the Subscription Services and any aspect or feature thereof including replacing any third party product or services incorporated into the Subscription Services. Payment of the Service Fees includes the receipt of all generally available updates to the Subscription Services free of charge. Service Provider shall use commercially reasonable efforts to make the Subscription Services available 24 hours a day, 7 days a week, except for (i) planned downtime (of which Service Provider shall give at least 24 hours electronic notice and which Service Provider shall schedule to the extent practicable during the weekend hours between 8:00 pm Friday and 3:00 a.m. Monday Eastern time), and (ii) any unavailability caused by circumstances beyond Service Provider's reasonable control, including, for an example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Service Provider's employees), Internet service provider failure or delay, non - Service Provider application, or denial of service attack. The implementation of Service Provider application updates and maintenance patches shall be completed at a mutually agreeable time within six (6) months of the date when such update is made generally available by Service Provider to all of its clients. 2. FEES AND PAYMENT 2.1 Service Fees. Client will pay to Service Provider the fees for the Services in the amounts and at the rates set out in Schedule B (the "Service Fees "). Unless otherwise specified in Schedule B, all Service Fees (and other fees set out in this Agreement) are fixed for the Initial Term (and subject to change thereafter) and include all Service Provider expenses incurred in providing the Services. Unless otherwise specified in Schedule B, all Service Fees (and other fees set out in this Agreement) will be invoiced annually in advance and are non - cancelable and non - refundable except as explicitly provided for in this Agreement. 2.2 Taxes. All Service Fees and other charges set forth in this Agreement are exclusive of all taxes, levies or duties or similar governmental assessments of any nature now in force or enacted in the future and imposed on the provision of goods and services ( "Taxes ") by any local, state, provincial, federal or foreign jurisdiction, including but not limited to value- added, sales, use, consumption or withholding taxes. Client will be responsible for all such Taxes, except for Taxes based on Service Provider's net income, capital gains or employee withholdings, even if such amounts are not listed on an Order. It is Client's responsibility to ensure that Ticket sales, merchandise and other goods or services sold or issued to Client's customers (whether through the Subscription Service or otherwise) include the appropriate amount of sales, use, value added and other applicable taxes in each separate jurisdiction where Ticket sales occur or events are being held, and Client is responsible for remitting all taxes collected to the relevant authority. Upon the request of Service Provider, Client shall cooperate with Service Provider in complying with relevant tax laws and regulations. This includes the completion of forms, certificates of tax exemption and documents and the provision of information to the relevant taxing authority, of the kind required under the applicable law, and Service Provider shall take similar actions, and provide to Client such information as is required by the relevant taxation authority. 2.3 Payment Terms; Set Off. Payment from Client is due within thirty (30) days from date of invoice. Client will be charged a late fee of 1.50% per month (or the maximum amount allowed by law if it is less) on any unpaid amounts from the due date until the date of actual payment, whether before or after judgment. Fees due by Client shall not be subject to set off, counterclaim, adjustment, reduction, compromise or otherwise, by virtue of any actual or potential claim against Service Provider. Client contact details for receipt of invoices are to be specified in Schedule C hereto. 3. CLIENT OBLIGATIONS 3.1 Use of Subscription Services, The Subscription Services may only be used by Client and its employees and contractors in connection with the Client's business. In no event shall Client use the Subscription Services in violation of applicable laws, rules or regulations or for any reason other than for the Subscription Services' reasonably intended purpose, and Client shall not knowingly or willfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with Service Provider's provision of the Services. 3.2 Client Data. Service Provider will accept all data and other records made available to Service Provider by or on behalf of Client under this Agreement or otherwise processed or created on behalf of Client in connection with the Services (collectively, "Client Data ") as being accurate, without any further inquiry. Client will ensure that the Client Data does not include any illegal or unlawful materials, including materials that: (i) defame other persons; (ii) wilfully promote hatred against any identifiable group or individual; or (iii) infringe the copyright, trade secret or other intellectual property rights of any person. 3.3 Other Client Responsibilities. Client's responsibilities will include the following. subject to any stated exceptions in an Order: (a) obtaining /providing its own merchant identifications, banking arrangements and SSL certificate; (b) establishing and paying for its own payment gateway relationship and payment processor relationship, which, for greater certainty, may include third party software, auditing and certification charges, in addition to credit card or debit card processing fees or other credit and collection issues for Client's transactions; (c) its own web site development (to the extent that any of Page 2 such development work is not then contracted to Service Provider) and hosting of any Client websites not then hosted by Service Provider pursuant to this Agreement, if any; (d) registering and renewing its own domain names; (e) enabling its own reliable high speed internet connectivity to and from the Subscription Service (in respect of all locations that need access to the Subscription Service); (f) the provision and maintenance of its own customer premises equipment, including but not limited to administrator workstations, ticket - seller workstations, printers and scanners; (g) all other customer relations, fulfilment and obligations, including but not limited to, customers /events establishment, operation and maintenance, ticket stock, advertising and promotion, nondurable operational supplies (e.g. printer toner) and ticket seller expenses and fees; and (h) all configuration, use and operation of the Subscription Services to suit the Client's environment and specifications (for clarity, other than any of those obligations that Service Provider undertakes to perform as Implementation Services per Schedule A). Client acknowledges and agrees that a failure of Client to comply with this provision may, to the extent applicable, negate any performance warranties and Support Services obligations on the part of Service Provider. A subset of Client's responsibilities are reiterated on Schedule D hereto, which Schedule requires Client's signature of acknowledgment. The administration tools used to access the Subscription Services will be password - protected and only Client personnel who are properly registered and have received a login ID and password will be able to access the administrative tools. Client will be solely responsible for administering and monitoring the use of its login IDs and passwords. Client will not permit anyone other than its authorized personnel to view or use the administration tools. 3.4 Prohibited Activities. Except as allowed in the Agreement, Client may not modify, rent, sublease, sublicense, assign, use as a service bureau, copy. lend, adapt, translate, sell, distribute, disclose, create any derivative works based upon, decompile, reverse assemble, reverse engineer or otherwise attempt to derive the source code from, the Subscription Services or any Service Provider intellectual property incorporated or embodied therein. Client will not alter or remove any copyright notices or other proprietary notices on or in the Subscription Services. Client shall use the Services only in compliance with Service Provider's Acceptable Use policies as found or linked to on Service Provider's website, as amended from time to time. 3.5 Termination /Suspension of Services. Service Provider reserves the right to suspend, terminate or limit performance of, and Client's access to, the Services at any time in the event (i) that Service Provider determines that the Services are being used by Client in an unauthorized or fraudulent manner or in violation of the terms of this Agreement; (ii) that Service Provider, in its sole discretion, determines that any Client Data violates Section 3.2 of this Agreement (iii) that any undisputed Service Provider invoice is more than five (5) days overdue; or (iv) of a denial of service attack or any other security or other disaster which impacts the Subscription Services or the security of the Client Data or other content stored with the Subscription Services, provided that Service Provider will promptly notify Client of the suspension or termination and use commercially reasonable efforts to notify Client in advance. Service Provider will have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of the Services in accordance with this Agreement. 4. OWNERSHIP AND CONFIDENTIALITY 4.1 Client Data. As between Client and Service Provider, Client exclusively owns all rights, title and interest in and to Client Data. Client hereby grants to Service Provider a non - exclusive limited license to access, use, modify, retain and dispose of Client Data solely for the purpose of performing Service Provider's obligations under this Agreement. Service Provider may aggregate and depersonalize Client Data. Aggregated and depersonalized data is not Client Data, and Service Provider may, in its discretion, use and disseminate such data. 4.2 License of Client Trade - marks. Client hereby grants to Service Provider a limited, personal, non - sublicensable license during the Term to use and display Client's trade name. trade -marks and logos as part of the Subscription Services as required to provide the Services to Client hereunder (e.g. the posting of Client Trade -marks on Client's instance of the Subscription Service). Page 3 4.3 Ownership of Services. Service Provider retains all right, title and interest in and to all intellectual and proprietary rights with respect to the Subscription Services and the Other Services provided by Service Provider, together with any and all software and other technology that enables the provision of such Services, and all documentation, materials, user guides, manuals, release notes and any training materials and other deliverables provided by Service Provider under this Agreement ( "Documentation "), and any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Client or its users relating to the Services. 4.4 Confidentiality. "Confidential Information" means any and all non - public information and materials disclosed by one party to the other party, before or after the Effective Date, whether in writing, orally or visually, and whether or not marked as confidential, that a reasonable person would regard as confidential, and includes all Client Data. Confidential Information shall not include information which: (i) is or becomes part of the public domain other than by wrongful act of the receiving party; (ii) at the time when it is disclosed or access is granted to the other party, is known to the other party free of any restrictions; (iii) is independently developed by the other party through individuals who have not had either direct or indirect access to the disclosing party's Confidential Information; or (iv) is disclosed without any restrictions to the other party by a third party who has a right to make such disclosure to any person; (v) information, the disclosure of which is mandated by applicable public disclosure laws (for greater certainty, however, any information exempt from disclosure in accordance with such public disclosure laws shall be Confidential Information hereunder). Each party will: (i) use the other party's Confidential Information only in accordance with this Agreement and only for the purpose of fulfilling its obligations and exercising its rights under this Agreement; (ii) at a minimum, use a reasonable degree of care to protect the other party's Confidential Information; (iii) maintain the other party's Confidential Information in strict confidence, and (iv) except as required by applicable law, not disclose the other party's Confidential Information to any third parties. Each party acknowledges that the Confidential Information of the other party is of value to the other party or to its suppliers and that any unauthorized copying, use, disclosure, access or disposition of that Confidential Information will cause irreparable injury to the other party. Consequently, each party agrees that in addition to any other remedies that the other party may have with respect to any unauthorized use or disclosure of its Confidential Information, the other party will be entitled to seek injunctive and other equitable relief, as a matter of right. Receiving party may disclose the other party's Confidential Information as required by law or court order provided: (1) where legally permissible the receiving party promptly notifies the other party in writing of the requirement for disclosure; and (2) discloses only as much of the Confidential Information as is required by such law or court order. The party receiving Confidential Information of the other party will ensure that Confidential Information is disclosed only to its employees or consultants with a bona fide need to know and who are under binding written obligations of confidentiality with receiving party to protect the other party's Confidential Information substantially in accordance with the terms of this Agreement. Service Provider understands that Client is a Washington state entity, and as such is subject to State of Washington public records law (Washington Public Records Act, RCW 42.56). Thus, Client may receive a request for inspection under Washington public records law (Washington Public Records Act, RCW 42.56) that would require disclosure of information for which Service Provider has requested confidentiality or nondisclosure under the provisions of this Agreement. If Client receives any request for information under Washington public records law (Washington Public Records Act, RCW 42.56) in relation to this Agreement or Service Provider, Client shall promptly notify Service Provider with details of the information requested, and prior to making any disclosure Client shall consult with Service Provider regarding whether the information requested is exempted from disclosure as being trade secrets, privileged information and /or confidential commercial or financial data sensitive or otherwise exempted confidential information of Service Provider in accordance with Washington public records law (Washington Public Records Act, RCW 42.56) and allow Service Provider to redact information that Service Provider believes to be confidential prior to disclosure, subject to adherence to Washington public records law (Washington Public Records Act, RCW 42.56) and any applicable legal process. 4.5 Obligation on Termination. Upon termination of this Agreement and at the written request of the disclosing party, the other party shall, upon election of the disclosing party, either (1) return all originals Page 4 and copies of Confidential Information received from the disclosing party within fourteen (14) days of the receipt of such request or (ii) destroy all originals and copies of Confidential Information received from the disclosing party and provide written confirmation of such destruction within fourteen (14) days of receipt of such request. Nothing in this clause shall require a party to return or destroy any documents and materials that such party is required to retain by applicable law, or to satisfy the requirements of a regulatory authority or body of competent jurisdiction or the rules of any listing authority or stock exchange, to which it is subject, or for its own internal compliance or auditing procedures. The provisions of Section 4.4 shall continue to apply to any documents and materials retained pursuant to this clause. 5. WARRANTIES AND LIMITATIONS 5.1 Warranties. Service Provider represents and warrants that: (i) the Subscription Services will perform in all material respects in accordance with the applicable functionality as referenced in Part I of Schedule A and (ii) the Implementation Services will be performed in a professional manner and with reasonable skill and care. For breach of the express warranty set forth above, upon notification to Service Provider in writing of the nature of non - conformance, Client's sole and exclusive remedy shall be Service Provider's commercially reasonable efforts to promptly repair the non - conforming Subscription Services or to re- perform the non - conforming Implementation Services without charge. 5.2 Disclaimer. Except for the warranties set out in Section 5.1 above, Service Provider makes no other representations, warranties or conditions with respect to the Services, or any materials or other deliverables provided by Service Provider, whether express or implied, past or present, statutory or otherwise, including any implied warranties or conditions of merchantability, fitness for a particular purpose or non - infringement. Service Provider shall use commercially reasonable efforts to secure its systems including maintaining certification as applicable of its compliance with respect to Payment Card Industry Data Security Standards ( "PCI DSS "); however, Service Provider does not warrant that the Subscription Services and the Client Data stored through use of the Subscription Services are not susceptible to intrusion, attack or computer virus infection. 5.3 Limitation of Liability. Neither party will be liable to the other party in any way whatsoever, for Toss or damage to, or corruption of data which is caused by the other party or the other party's employees, lost revenues or profits or any indirect, punitive, incidental, special or consequential damages or loss of use. This limitation will apply whether or not the Toss or damage was foreseeable or the defaulting party was advised of the possibility of such loss or damage. The aforementioned limitation shall not apply in respect of breaches of the payment obligations contained in section 2.1 or to breaches of Section 4. In no event will the total cumulative liability of Service Provider to Client for any claims arising out of or relating to this Agreement or the Services, exceed the amounts actually paid by Client to Service Provider in the twelve (12) months preceding the date of the applicable claim. The foregoing provisions set out in this Section 5.3 will apply regardless of the form or cause of action (including without limitation, contract, tort or negligence). Nothing in this Agreement, including this Section 5.3, excludes or limits the liability of a party for (a) death or personal injury caused by the negligence of such party, its officers, employees, contractors or agents or (b) any other liability which may not be excluded by law. Further, the aforementioned cumulative liability cap shall not apply to intellectual property claims indemnifiable pursuant to Section 6.1 below. 6. INDEMNIFICATION 6.1 Intellectual Property Indemnification. Service Provider agrees to indemnify, defend, and hold harmless Client and its officers, directors, employees, and agents from and against any and all claims, suits, losses, damages and expenses (including legal fees and expenses) incurred in connection with any third party claims, demands and other liabilities asserted against any of them, which directly relate to or directly arise out of the violation or infringement of any Canadian or United States copyright, patent, trade -mark or trade secret by Client's authorized use of the Subscription Services; provided that Client: (1) gives Service Provider prompt notice of any such claim and sole control over its defence and settlement; (ii) gives Service Provider all reasonable co- operation, information and assistance to handle the defence or settlement; (iii) except to the extent required by law. makes no admission regarding any Page 5 such claim without Service Provider's prior written consent; and (iv) is not in breach of this Agreement, if the breach was a cause of such infringement. Notwithstanding the foregoing, Service Provider shall not be liable under this section with respect or related to, or in connection with: (i) Client Data; (ii) unauthorized or negligent uses of the Subscription Services; or (iii) alteration of the Subscription Services except with Service Provider's prior written consent. 6.2 Right to Procure or Substitute. Should the Subscription Services or any part thereof become, or in Service Provider's reasonable opinion, are likely to become, the subject of a claim for infringement against which Service Provider is liable to indemnify Client under Section 6.1, then Service Provider may, at its sole option and expense: (i) procure for Client the right to use and access the infringing or potentially infringing item(s) of the Subscription Services free of any liability for infringement; or (ii) replace or modify the infringing or potentially infringing item(s) of the Subscription Services with a non - infringing substitute otherwise materially complying with the functionality of the replaced system. If (i) and (ii) are not reasonably available in Service Provider's reasonable opinion after Service Provider has used commercially reasonable efforts to achieve both (i) and (ii), Service Provider may terminate this Agreement, in which case Client shall receive a pro rata refund of prepaid unearned Service Fees to the date of termination. 6.3 Client Indemnification. Client will indemnify, defend and hold Service Provider, its affiliates and their directors, officers, employees, agents and contractors harmless from any and all claims, suits, losses, damages and expenses (including legal fees and expenses) arising from or relating to (i) any materials provided by Client to Service Provider (including Client Data), (ii) the promotion, production, management or presentation of any event or the postponement or cancellation thereof, including any personal injuries or deaths related thereto, or taxes collectible therefrom, (iii) any claims by any of Client's customers, contractors, service suppliers or other similar parties that are related to the subject of this Agreement (other than to the extent that the claim was the direct result of Service Provider's breach of this Agreement), or (iv) Client's breach of this Agreement. 6.4 Exclusive Indemnification Remedies. The indemnification remedies expressly provided for in this Section shall be exclusive with respect to the rights of the parties and their indemnitees to seek indemnification against the other party. 7. TERM AND TERMINATION 7.1 Term. This Agreement and its terms and conditions will be effective as of the Effective Date. The "Activation Date ", however, is defined as the day that the Subscription Services are first made available to Client to be configured (i.e. the start of the implementation project). The initial term of this Agreement will commence on the first day of the month following the Activation Date and expire at the conclusion of five (5) years thereafter ( "Initial Term "). This Agreement will be automatically renewed for consecutive one (1) year terms (each a "Renewal Term "), unless written notice of non - renewal is provided by either party to the other party at least sixty (60) days prior to the expiration of the Initial Term or the applicable Renewal Term. "Term" means the Initial Term and any applicable Renewal Term, and each successive twelve -month period during the Term may be referred to herein as a "Term year ". 7.2 Termination for Insolvency or Material Breach. Either party may terminate this Agreement immediately on written notice to the other party, if the other party: (i) ceases to carry on business in the normal course, makes a general assignment for the benefit of creditors, or becomes subject to any proceeding for liquidation, insolvency or the appointment of a receiver that is not dismissed within thirty (30) days; (ii) is in material default of any provision of this Agreement that is reasonably susceptible to cure and is not cured or addressed to the satisfaction of the non - defaulting party (acting reasonably) within thirty (30) days following written notice of the default from the non - defaulting party (other than non- payment for which the right to cure will be five (5) days); or (iii) is in material default of any provision of this Agreement that is not reasonably susceptible of cure. 7.3 Effect of Termination. Upon the termination of this Agreement for any reason, Service Provider will terminate all access of Client to the Subscription Services, Client will pay all Service Fees and Page 6 Expenses incurred for Services received prior to termination and any applicable Taxes, and, other than in the event of termination by Client pursuant to Section 7.2 above (insolvency or material breach), Client will pay all Service Fees that would have become payable during the remainder of the Term. Service Provider is available to assist Client in migration of its Client Data contained within the Subscription Services for an additional charge. Any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination shall not be affected or prejudiced. 8. GENERAL 8.1 Notices. Any notice given pursuant to this Agreement will be in writing and addressed to the other party at the address for the other party listed in Part I of Schedule C to this Agreement. Any such notice will be deemed to have been received upon: (i) confirmation of delivery by overnight delivery service recognized throughout North America, all delivery charges pre -paid; or (ii) transmission by email and no receipt of an out -of -office or other notice indicating non - receipt. Either party may designate a different address by written notice to the other party given in accordance with this section. 8.2 Entire Agreement. This Agreement constitutes the complete and exclusive agreement between the parties with respect to its subject matter, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding its subject matter. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement. 8.3 Variations. Except as expressly set out in this Agreement, this Agreement may be changed only by a written document signed by authorized representatives of Service Provider and Client. 8.4 Severance. Should any provision of this Agreement be held to be invalid by a court of competent jurisdiction, then that provision will be enforced to the extent permissible, and all other provisions will remain in effect and are enforceable by the parties. 8.5 Interpretation. The headings used in this Agreement are for convenience of reference only. No provision of this Agreement will be interpreted against any party merely because that party or its legal representative drafted the provision. All remedies are cumulative. Throughout this Agreement, the term "including" or the phrases "e.g.," or "for example" have been used to mean "including, without limitation ". 8.6 Waiver. No term of this Agreement will be deemed to be waived by reason of any previous failure to enforce it. No term of this Agreement may be waived except in a writing signed by the party waiving enforcement. 8.7 Assignment. Neither party shall assign or otherwise transfer any rights or obligations under this Agreement without the other party's written consent, such consent not to be unreasonably withheld. Notwithstanding the foregoing, Service Provider may assign this Agreement and any of the rights and obligations hereunder to an affiliate, without prior consent. Service Provider's performance of this Agreement may involve the participation of sub - contractors; thus, notwithstanding the above, the parties agree that Service Provider may subcontract any of its obligations and /or assign any of its rights hereunder to any of Service Provider's affiliates and /or specialist subcontractors. Subject to the foregoing, this Agreement will be binding on, will inure to the benefit of, and will be enforceable against the parties and their respective successors and assigns. 8.8 Independent Contractors. The relationship between the parties is that of independent contractors. This Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between them. Neither party will have the power to bind the other without the other party's prior written consent. 8.9 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Washington and the federal laws of the United States applicable therein, without reference Page 7 to the conflict of laws provisions. The parties agree to attorn to the jurisdiction of the courts of the State of Washington for the conduct of any legal proceedings under, or related to, this Agreement. 8.10 Media. Service Provider may list Client as a client (and use its name and logo, in the form and manner directed by Client) in its standard sales and marketing materials, including on its website and in press releases (the first press release of which Service Provider expects to issue within 30 days following contract execution). Otherwise, neither party will issue any public notice or press release, or otherwise make use of its association with the other party or this Agreement, without the prior written consent of the other party, such consent not to be unreasonably withheld. 8.11 Force Majeure. Neither party will be liable for any failure or delay in its performance under the Agreement (other than payment obligations) due to any cause beyond its reasonable control, including acts of God, decrees or restraints of governments, war, act of terrorism, failure of a utility service or transport or telecommunications network, and any other cause or causes beyond its reasonable control, whether similar or dissimilar to those already specified, that could not have been avoided by the exercise of reasonable foresight ( "a "Force Majeure ") provided that the party affected by such failure or delay gives the other party prompt written notice of the cause, and uses reasonable commercial efforts to correct such failure or delay within a reasonable period of time. 8.12 Survival. Those sections which by their nature should survive the termination or expiration of this Agreement will survive termination or expiration, including sections 2.1, 4.1, 4.3, 4.4, 4.5, 5.3, 6, 7.3 and 8. AGREED: AUDIENCEVIEW TICKETING CORPORATION CITY OF FEDERAL WAY Signature: Signature: Name: RI 044:E1- 1- . - t'r" 0:6- Name: Ferrell Title: (.-{'E ' 0 PGIA,r�-t-1bJ - oFF Title: ayor 1 have the authority to bind the entity PROVINCE of Ontario, Canada ) ss. CITY of Toronto 1 have the authority to bind the entity On this day personally appeared before me Michael Bryce, to me known to be the Chief Operating Officer of AudienceView Ticketing Corporation that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute said instrument and that the seal affixed, if any, is the corporate seal of said corporation. GIVEN my hand and official seal this 27th day of March, 2017. Page 8 Schedule A - DESCRIPTION OF THE SERVICES (ALL TYPES) Part I - Subscription Services AudienceView The current version of the AudienceView Subscription Services can be found at the following location on Service Provider's website: http: / /www.audienceview.com /legal /scheduleA -AVP AVTiki The current version of the AVTiki Subscription Services can be found at the following location on Service Provider's website: http: // www. audienceview .com /legal /scheduleA -AVT Correspondence The current version of the Correspondence Subscription Services can be found at the following location on Service Provider's website: http: / /www. audienceview .com /legal /scheduleA -COR Point -of -sale (POS) The current version of the Point -of -sale (POS) Subscription Services can be found at the following location on Service Provider's website: http: / /www. audienceview .com /legal /scheduleA -POS WebAPI The current version of the WebAPI Subscription Services can be found at the following location on Service Provider's website: http: // www .audienceview.com /legaI/WebAPI Part II — Implementation Services 2.1 Deployment Services (including Training) The current version of the AudienceView Deployment Services can be found at the following location on Service Provider's website: http: // www. audienceview .com /legal /scheduleA -DS 2.2 On Site Launch Pack The current version of the AudienceView On Site Launch Pack can be found at the following location on Service Provider's website: http: / /www.audienceview .com /Iegal/scheduleA -OLP Part III — Support Services The current version of Service Provider's applicable Support Services can be found at the following location on Service Provider's website: http:/ /www. audienceview .com /legal /scheduleA -SUP Page 10 Venue: Service Fee: Payment: Travel /Expenses: Currency Schedule B — FEE AND PAYMENT SCHEDULE The City of Federal Way Performing Arts & Event Center located in downtown Federal Way, WA. $36,000 per year (the "Service Fee'), payable in advance quarterly installments of $9,000 on the first day of the Initial Term (i.e. on the first day of the month following the Activation Date) and on the first day of each quarter thereafter. Note that the Activation Date is defined in Section 7.1 of the Agreement, and is not a "go- live" date. These fees are for the processing of up to a maximum of 90,000 tickets and other units (inclusive of all paid and complementary tickets and other units)( "Tickets ") in any given Term year (the "Ticket Maximum ") in respect of events taking place at the Venue. If at any time Client exceeds the Ticket Maximum, the Ticket Maximum shall automatically increase by an increment of 10,000 Tickets per annum for such Term year on a going - forward basis for the remainder of the Term and the Service Fee shall automatically increase by a corresponding increment of $5,000 per annum (to be invoiced by and paid to Service Provider at the beginning of the month following (or in Service Provider's discretion, at the end of the Term year) such time as the Ticket Maximum was increased by such increment (and thereafter at the start of each Term year throughout the Term). An additional $5,000 /annum increase to the Service Fee shall similarly apply for each successive annual band of 10,000 Tickets, if any. There shall be no carry-over of unused Ticketing Maximum from Term year to Term year. Notwithstanding the 30 -day payment terms set out in Section 2.3 of the Agreement, solely with respect to the Agreement's first quarterly payment of the Service Fee, the payment terms shall be extended to 90 days. Applicable taxes, if any, are additional. Notwithstanding the foregoing, in the event that Client uses the Correspondence functionality of the Subscription Services to distribute more than 1,000,000 emails in any given Term year (the "Email Unit Maximum "), the annual Service Fee shall automatically increase for such Term year and for the remainder of the Term by $360 /year and the Email Unit Maximum shall automatically increase by 500,000 emails per annum. An additional $360 /year increase shall similarly apply for each successive annual band of 500,000 emails. There shall be no carry-over of unused Email Unit Maximum from Term year to Term year. Payment is quarterly in advance. Confirmation of Client deployment schedule will take place upon execution of this Agreement. Travel /Expenses for the implementation are estimated at $2,320 and invoiced as incurred. All references to currency in this Agreement are to United States Dollars and all payments shall be made in United States Dollars. Page 11 Schedule C - ADMINISTRATIVE INFORMATION PART I - ADDRESSES FOR NOTICES Any notices required under this Agreement shall be sent to the parties at the following respective addresses: Service Provider AudienceView Ticketing Corporation 200 Wellington Street West, 2nd Floor Toronto, ON, M5C 3C7 Canada Attention: Chief Executive Officer Email: G &A @audienceview.com Client: City of Federal Way 33325 8' Ave. South Federal Way, WA 98003 Theresa Yvonne, Executive Director theresa .yvonne(a�cityoffederalway.com Invoicing All invoices under this Agreement or communications in respect of invoices are to be sent to Client by email or mail to the Notice address above (which can be updated /changed by written notice from Client). If rather, invoices are to be emailed to a different address then the Notice address, Client's email address for purposes of receiving invoices shall be set out below. Theresa .yvonne @cityoffederalway.com If the invoice does require reference to a Client purchase order, please indicate `Yes ❑ Yes ❑ No PART II - DESIGNATED CLIENT SUPPORT CONTACTS The Designated Client Support Contacts are initially as follows: name: Thomas Fichtner, IT Manager name: Theresa Yvonne, Executive Director telephone: 253 - 835 -2547 telephone: 253 - 835 -2414 e -mail: e-mail: tomas .fichtnercityoffederalway.com theresa .yvonne @cityoffederalway.com Page 12 Schedule D — PARTNERING FOR SUCCESS As an AudienceView client, it is important that Client is aware of its responsibilities in connection with this Agreement, which responsibilities are necessary in order to partner with Service Provider for Client's success. Certain of these Client responsibilities are highlighted below: 1. Obtaining /providing its own merchant identifications and banking arrangements; 2. Procuring its own SSL certificate; 3. Establishing /paying for its own payment gateway and payment processor relationship, 4. Ensuring that it has supported printers, pin pads, scanners, etc. 5. Ensuring that it has reliable high speed internet connectivity to and from the Subscription Service - generally, this means that the organization has at least a T1 line; 6. Registering and renewing its own domain names; 7. Commitment to showing up to scheduled meetings with the Service Provider project team and completing the project related work assigned to them; 8. Ensuring that the data to be migrated from Client's legacy system conforms to the Service Provider data schema as outlined by Service Provider's project team. By executing below, Client hereby acknowledges and confirms that (i) it has reviewed and accepts the Client responsibilities noted herein and within the Agreement and (ii) it has clicked on each of the hyperlinks contained within Schedule A and reviewed the details found on each of such linked pages. City of Feral W . y By: N.,ir: Jim Ferrell Mayor I have the authority to bind the entity Page 13