AG 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.
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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 $yfe�u5/cPcg26
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IS SALES TAX OWED ❑YES ❑NO IF YES,$ 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:
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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
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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).
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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
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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
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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.
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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
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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.
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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
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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
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