HomeMy WebLinkAbout23S349 - ACTIVE NETWORKCONTRACT ABSTRACT
Contract/Amendment
Name of Contract:
Company Name:
Company Contact:
Email:
Summary of Services:
Contract Price:
Contract Term:
Public Integrity/ Business
Disclosure Forms:
Contract Administration
Lead Department:
Contract Administrator/ Ext:
Contract Approvals
Council/City Manager Approval Date:
Agreement Number:
Amendment Number:
Contract Compliance
Exhibits:
Insurance:
Routed By:
Bonds:
Business License:
Sole Source Co-Op
CoOp Agmt #: Sole Source
Documents: CoOp Name:
CoOp Pricing:
By: Submitted on:
Contract Abstract Form Rev 8.16.23
Authorized Signers:
Name, Email
(Corporations require 2 signatures)
Active Network
Active Network LLC
Carlos Peixoto
carlos.peixoto@active@activenetwork.com
Offers a range of features including activity registration,
membership management, facility management, and child care
management. Activenet also helps us collect valuable data
through its payment processing capabilities, reporting
functionality, and performance and monitoring tools.
$35,000
5 year
N/A
eric.ives@activenetwork.com
kevin.farmer@activenetwork.com
Information Technology
Larry Klingaman
N/A
23S349
N/A
Yes
No
No
Department
No
Yes
Sole source attached.
N/A
N/A
N/A
10/26/23 Kendall Bradley
DocuSign Envelope ID: 69464E0A-55BF-4DCE-8CD0-115FF04160FB
X
Contract # 00129780
Version: 10/27/22
PRODUCT AND SERVICES AGREEMENT
CLIENT INFORMATION
ORGANIZATION FULL LEGAL NAME:
City of Palm Springs ADDRESS: 401 S. Pavilion Way
PALM SPRINGS, CA
CONTACT NAME: Larry Klingaman TELEPHONE: 760-323-8235
EMAIL: Larry.Klingaman@palmspringsca.gov
OVERVIEW OF AGREEMENT
This Agreement consists of this cover page, the Schedule, the General Terms, and the following Product Attachments:
Recreation and Membership Management Product Attachment
NOTE: If Client is tax exempt, certificate must be provided along with signed contract.
In consideration of the mutual promises and covenants contained in this Agreement, Client and Active hereby agree to be bound by this Agreement. By signing below, Client acknowledges and confirms that it has read this Agreement.
CLIENT ACTIVE NETWORK, LLC
Signature: Signature:
Name: Name:
Title: Title:
Date:
Date:
Active Network, LLC
5850 Granite Parkway, Suite 1200, Plano, TX 75024
Telephone: (469) 291-0300
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Contract # 00129780
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Products and Services General Terms
Client’s relationship with Active and Client’s use of Active’s products and services (including Client’s licensing of Active’s SaaS, Client’s use of Services, and/or Client’s
purchase or leasing of Hardware) are subject to the terms and conditions set forth herein and are between Client and Active. Capitalized terms are defined in Section
7 below, unless otherwise defined within the body of this Agreement, the applicable Product Attachment, or Schedule. In order to use the Products, Client must first
agree to this Agreement. Client represents and warrants that Client has the necessary and full right, power, authority, and capability to accept this Agreement, to bind Client’s
organization, and to perform Client’s obligations hereunder. Client can accept this Agreement by: (a) clicking to accept or agree to this Agreement, where this option is
made available to Client by Active in the user interface for any Product; (b) signing a document where a link to this Agreement appears in an order form, Schedule, or
other document provided to Client by Active; (c) by signing this Agreement, if there is a designated area to sign; or (d) by actually using the Products. In the case of
(d), Client understands and agrees that Active will treat Client’s use of the Products as acceptance of this Agreement from that point onwards. Client may not use the
Products and may not accept this Agreement if (i) Client is not of legal age to form a binding contract with Active, or (ii) Client is a person barred from receiving the
Products under the laws of the United States or other countries, including the country in which Client is a resident or from which Client uses the Products. Client may
not use the Products if Client does not accept this Agreement. By accepting this Agreement, Client agrees as follows:
1. AGREEMENT STRUCTURE AND SCOPE.
1.1. General Terms and Incorporation of Product Terms. This Agreement establishes the general terms and conditions to which the parties have agreed to in
order to facilitate the licensing of the Products. Additional Product-specific terms and conditions are set forth in one or more documents referenced in the applicable
Schedule, each of which is incorporated herein (each, a “Product Attachment”). All references to the “General Terms” mean this document, exclusive of Product
Attachments and Schedules.
1.2. Incorporation of Schedules. The parties may enter into new Schedules from time to time. Each Schedule incorporates the terms of these General Terms and
the applicable Product Attachment.
1.3. Incorporation of EULAs. Client’s use of any Third Party Products hereunder may be subject to, and Client will comply with, this Agreement and any applicable
Third Party EULA(s).
1.4. Incorporation of Exhibits. Client’s use of any payment processing services hereunder will be subject to, and Client will comply with, this Agreement and an
applicable Exhibit(s).
1.5. Affiliates. Client’s Affiliates may order Products from Active (or one of Active’s Affiliates) by entering into a Schedule. In the event that a Client Affiliate enters
into a Schedule with Active (or an Affiliate of Active), reference in this Agreement to “Client” and “Active” will mean the respective entity that accepts (as described in
the Preamble) the applicable Schedule. Each such Schedule will be deemed to be a separate agreement.
2. FINANCIAL TERMS.
2.1. Fees; Payment Terms; Currency. Fees, currency, and payment terms are specified in the applicable Schedule. Unless otherwise specified in the Schedule,
all amounts owed by Client that are not directly collected by Active are due from Client within thirty (30) days from either (a) the end of the remittance cycle during
which the fees accrued (if related to registrations or transaction processing), or (b) the date of the applicable invoice. Past due fees will accrue interest at the lesser of
the annual rate of ten percent (10%) per annum or the maximum amount permitted by applicable law. In the event of any non-payment or delay in paying a fee, Client
agrees to reimburse Active for any fees and reasonable expenses incurred in its collection efforts. Payment of fees is under no circumstances subject to, or conditioned
upon, the delivery of future Products or functionality. Active shall have the right, once per calendar year, to increase the subscription fees by two percent (2%) and/or
the transaction fees by four percent (4%) (the “Annual Fee Increase”), as applicable. In special circumstances, Active, in its sole discretion and upon thirty (30) days’
written notice to Client (which may be sent by email), shall have the right to further increase the subscription fees and/or transaction fees on an annual basis by an
additional amount (the “Additional Increase”) provided that the Annual Fee Increase and the Additional Increase cumulatively do not exceed five percent (5%) for
subscription fees and/or twelve and a half percent (12.5%) for transaction fees.
2.2. Additional Payment Terms. If Active reasonably believes that a transaction by Client, licensee, or End User, as applicable, may be fraudulent or otherwise
contrary to law, Active may issue an invoice or offset an equivalent amount from Client’s account or any payment Active owes to Client and return the value to the End
User (as set forth below) and if sufficient funds are not available, Client must reimburse Active on demand. Active will notify Client of the reason for such offset provided
that it is lawful to do so.
2.3. Credit Card Surcharging. All fees described in the applicable Schedule are in consideration of the Products that Active provides. Active and Client acknowledge
that certain credit card network rules and laws prohibit imposing a surcharge that is based on the type of payment method used (e.g., having a different fee for the use
of a credit card vs. debit card), and therefore, each agrees not to impose such a surcharge on any End User.
2.4. Taxes. The prices stated in this Agreement do not include Taxes. Client is responsible for, and agrees to pay, any and all required Taxes which may be assessed
on Client’s invoices. If Client is tax-exempt, Client will send Active a copy of its valid tax-exempt certificate (or, as applicable, its reseller’s certificate) prior to execution
of any Schedule. Client is solely responsible for determining which, if any, Taxes apply to End Users or licensees in connection with Client’s use of the Products and
for collecting, remitting, and reporting the correct amounts of all such Taxes to the applicable governmental authorities, even if Active provides Client with tools that
assist Client in doing so. In the event that a governmental authority requires Active to pay any Taxes attributable to Client’s use of the Products, to the extent not
prohibited by law, Client agrees to defend, indemnify, and hold Active harmless from all such Taxes and all costs and expenses related thereto. Active reserves the
right to modify this section and apply all required Taxes to this Agreement upon providing a thirty (30) day written notice to Client in order to comply with applicable
laws. When Active is acting as the payment facilitator and Client elects to include an additional fee in the End Users’ cart that is identified as a “sales tax” or similar
designation, then, no more frequently than once per calendar year during the Term of the Agreement, Active may, upon at least five (5) business days’ prior written
notice, (a) require Client to send to Active Client’s books and records related to its sales tax payments.
3. LIMITED RIGHTS AND OWNERSHIP; INDEMNIFICATION; CONFIDENTIALITY.
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3.1. Reservation of Rights. All rights not expressly granted in this Agreement are reserved by Active and its licensors. Client acknowledges that: (a) all Protected
Materials are licensed and not sold; (b) Client acquires only the right to use the Products in accordance with this Agreement, and Active and/or its licensors will retain
sole and exclusive ownership of and all right, title, and interest in the Products, including the following: (i) all Intellectual Property embodied or associated with the
Products, (ii) all deliverables and work product associated with the Products, and (iii) all copies and derivative works thereof; and (c) the Products, including the source
and object codes, logic, and structure, contain and constitute valuable trade secrets of Active and its licensors.
3.2. Restrictions. Unless otherwise set forth in a EULA, Product Attachment, or Schedule, Client will not itself, or through any Affiliate, employee, consultant,
contractor, agent, or other third party: (a) sell, resell, distribute, host, lease, rent, license, or sublicense, in whole or in part, the Protected Materials; (b) decipher,
decompile, disassemble, reverse assemble, modify, translate, reverse engineer, or otherwise attempt to derive source code, algorithms, tags, specifications,
architecture, structure, or other elements of the Products in whole or in part, for competitive purposes or otherwise; (c) allow access to, provide, divulge, or make
available the Protected Materials to any user other than those who are licensed pursuant to this Agreement to have such access; (d) write or develop any derivative
works based upon the Products; (e) modify, adapt, translate, or otherwise make any changes to the Products or any part thereof; (f) use the Protected Materials to
provide processing services to third parties, or otherwise use the same on a service bureau basis; (g) disclose or publish, without Active’s prior written consent, (i)
performance or capacity statistics, or the results of any benchmark test performed on the Products, or (ii) the terms (but not the existence) of this Agreement or other
valuable trade secrets of Active or its licensors; (h) without Active’s prior written consent, perform or disclose or cause to be performed or disclosed any information
related to any security penetration or similar tests; (i) disclose or otherwise use or copy the Protected Materials except as expressly permitted herein; (j) remove from
any Products identification, patent, copyright, trademark, or other notices or circumvent or disable any security devices’ functionality or features; (k) contest or do or aid
others in contesting or doing anything which impairs the validity of any proprietary or Intellectual Property rights, title, or interests of Active in and to any Products; (l)
use the Products for other than authorized and legal purposes, consistent with this Agreement and all applicable laws, regulations, and the rights of others; (m) take
any steps to avoid or defeat the purpose of security measures associated with the Products, such as sharing of login and password information, or attempt to circumvent
any use restrictions; or (n) except as expressly permitted by this Agreement, use the Protected Materials for hosting purposes. Further, Client will: (o) not use the
Products to transmit, publish, or distribute any material or information: (i) for which Client does not have all necessary rights and licenses, including any material or
information that infringes, violates, or misappropriates the Intellectual Property rights of any third party; (ii) that contains a computer virus or other code, files, or
programs designed to disrupt or interfere with the functioning of the Products; (iii) that is inaccurate or misleading; (iv) that is or that may reasonably be perceived as
being harmful, threatening, offensive, obscene, or otherwise objectionable; (v) that contains a virus or malicious code; or (vi) that includes the private information of
another without express permission, including but not limited to contact information, social security numbers, credit card numbers or other information which a
reasonable person would consider private in nature; (p) not attempt to gain access to any systems or networks that connect to the Products except for the express
purpose of using the Products for their intended use; (q) not engage in any activity that interferes with or disrupts the Products; and (r) not use the Products in violation
of the CAN-SPAM Act, Canadian Anti-Spam Legislation, or any other applicable laws pertaining to unsolicited email, SMS, text messaging or other electronic
communications.
3.3. Enforcement. Client will (a) ensure that all Client users of Products comply with the terms and conditions of this Agreement; (b) promptly notify Active of any
actual or suspected violation thereof; and (c) cooperate with Active with respect to any investigation and enforcement of this Agreement.
3.4. Active Indemnification. Active agrees to defend, settle, and pay damages (including reasonable attorneys’ fees) (“Client Losses”) relating to any third party
claim, demand, cause of action, or proceedings (whether threatened, asserted, or filed) (“Claim(s) Against Client”) against Client to the extent that such claim is based
upon Active’s proprietary Products (excluding Professional Services and Third Party Products) directly infringing a United States patent, registered United States
copyright, or registered United States trademark, provided that the Products are used in compliance with this Agreement; provided Client shall (i) promptly give Active
written notice of the Claim Against Client; provided, however, that Client’s failure to give or delay in giving such notice to Active shall not relieve Active of any liability it
may have to Client except to the extent that Active demonstrates that the defense of such Claim Against Client is prejudiced thereby, (ii) gives Active sole control of
the defense and settlement of the Claim Against Client; provided that Active may not settle any Claim Against Client without Client’s prior written consent unless such
settlement includes a complete and final release of liability and Client Losses against Client and does not impose any obligations on Client, and (iii) gives Active all
reasonable assistance, at Active’s expense.
3.5. Infringement. Active shall have no liability or obligation under Section 3.4 above or otherwise to the extent a Claim Against Client is based upon (i) use of the
Products in combination with software or hardware not provided by or specified by Active in the Documentation, if infringement would have been avoided in the absence
of such combination; (ii) modifications of the Products made by any individual or entity other than Active or at Active’s written direction; or (iii) use of the Products by
Client or any User in a manner not expressly permitted by the Agreement. If Active has reason to believe that the Products may infringe or misappropriate any third
party Intellectual Property right or otherwise give rise to an infringement or misappropriation Claim Against Client, Active may in its sole discretion and at no cost to
Client (a) modify the Products so that they no longer infringe or misappropriate or (b) obtain a license for Client’s continued use of that Products in accordance with this
Agreement. If Active determines (a) and (b) above are not reasonably practicable, Active may (x) terminate Client’s subscriptions for the Products, if applicable, or (y)
terminate this Agreement, if Client is not using the Products on a subscription basis, upon thirty (30) days’ written notice and Active will refund to Client any prepaid
fees covering the remainder of the Term (as defined in the applicable Product Attachment) of the subscription(s). Active’s defense and indemnification obligations in
Section 3.4 above do not apply to the extent a Claim Against Client arises from Client’s breach of this Agreement.
3.6. Client Indemnification. To the extent not prohibited by law, Client will defend Active, and hold Active and its Affiliates and their respective employees, directors,
successors and permitted assigns harmless, against any claim, action, regulatory action, demands, lawsuit or proceedings (whether threatened, asserted, or filed)
made or brought against Active by a third party to the extent that such claim is based upon (a) any actual, alleged or anticipated material breach by Client of this
Agreement; (b) injury or death to a person or damage to property resulting from the participation in an Event (as defined in the applicable Product Attachment) operated
by Client in connection with the Products; (c) Client’s provision to Active of materials, products, or services as part of Client’s obligations hereunder that infringe the
Intellectual Property rights of any third party provided that such materials, products, or services are used by Active in accordance with the Agreement; (d) use or
unauthorized disclosure of Participant Information by Client or other third parties to whom access is given to Participant Information as provided hereunder; (e) Client’s
use of the Products in violation of Section 3.2 (Restrictions) of these General Terms; and/or (f) any claims for refunds or chargeback requests from End Users (“Claim(s) Against Active”). To the extent not prohibited by law, Client will indemnify Active from any damages, liabilities, losses, expenses, fines, penalties and/or judgments,
reasonable attorney fees and costs finally awarded against Active as a result of, or for any amounts charged to Active, recoverable from Active and/or paid by Active
under a Client and court-approved settlement of, a Claim Against Active (“Active Losses”); provided Active (i) promptly gives Client written notice of the Claim Against
Active; provided, however, that Client shall not be excused from its indemnification obligations unless a delay in providing such notice impairs Client’s ability to defend
the Claim Against Active; (ii) gives Client sole control of the defense and settlement of the Claim Against Active (except that Client may not settle any Claim Against
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Active unless it unconditionally releases Active of all liability), and (iii) gives Client all reasonable assistance, at Client’s expense. The above defense and indemnification
obligations do not apply to the extent a Claim Against Active arises from Active’s gross negligence, intentional misconduct, or other breach of this Agreement.
3.7. Sole Remedy. This “Mutual Indemnification” Section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the
other party for a third party claim that constitutes either a Claim Against Client or a Claim Against Active as described in this Section.
3.8. Definition of Confidential Information. During the Term (as defined in the applicable Product Attachment) of this Agreement and for a period of three (3) years
after the expiration of or the termination of this Agreement each party acknowledges and agrees that “Confidential Information” means all information disclosed by a
party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood
to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Client includes Client data; Confidential Information
of Active includes the Products; and Confidential Information of each party, solely by way of illustration, and not in limitation, shall include the following information: the
terms and conditions of this Agreement (including pricing), financial data, plans, forecasts, Intellectual Property, methodologies, as well as business and marketing
plans, technology and technical information, product plans and designs, Client information, strategic analyses and business processes, in each instance disclosed by
such Disclosing Party or any of its Representatives regarding it and its Affiliates. However, Confidential Information does not include any information that the Receiving
Party can demonstrate (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving
Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of
any obligation owed to the Disclosing Party; or (iv) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential
Information, as evidence by prior documentation or tangible embodiments of such information
3.9. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential
information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this
Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its
and its respective Affiliates’ employees, officers, directors, agents, representatives and contractors, including, legal counsel, tax advisors and/or accountants who need
that access for purposes consistent with this Agreement and who have signed confidentiality agreements with or are otherwise subject to enforceable obligations to
the Receiving Party that contain protections no less stringent than those herein (collectively, “Representatives”). Neither party will disclose the terms of this Agreement
to any third party other than its Representatives without the other party’s prior written consent, provided that a party that makes any such disclosure to its
Representatives will remain responsible for such Representatives compliance with this “Confidentiality” Section.
3.10. Required Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the
Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's
cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as
part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the
Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
4. DISCLAIMERS AND LIMITATION OF LIABILITY.
4.1 EXCEPT AS OTHERWISE SET FORTH HEREIN AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, CLIENT ACKNOWLEDGES AND AGREES THAT
THE PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE WARRANTIES, IF ANY, SET FORTH HEREIN AND IN THE PRODUCT
ATTACHMENTS ARE LIMITED TO THEIR EXPRESS TERMS AND ARE IN LIEU OF, AND ACTIVE, ITS LICENSORS, AND SUPPLIERS EXPRESSLY DISCLAIM
TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY (a) WARRANTY
THAT THE PRODUCTS ARE ERROR-FREE OR “BUG”-FREE, ACCURATE, SECURE, OR RELIABLE; (b) WARRANTY THAT THE PRODUCTS WILL OPERATE
WITHOUT INTERRUPTION; (c) WARRANTY THAT ALL ERRORS WILL BE CORRECTED OR THAT THE PRODUCTS WILL COMPLY WITH ANY LAW, RULE, OR
REGULATION; (d) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE; (e) IMPLIED WARRANTIES ARISING FROM
STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND (f) WARRANTY THAT THE PRODUCTS WILL MEET CLIENT’S
REQUIREMENTS. ACTIVE WILL NOT BE LIABLE FOR INDIRECT DAMAGES OR LOSSES (IN CONTRACT, STATUTE, TORT, OR OTHERWISE), INCLUDING
DAMAGES FOR LOST PROFITS, LOST SAVINGS, COST OF REPLACEMENT PRODUCTS, LOST DATA, LOSS OF USE OF INFORMATION OR PRODUCTS, OR
ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES, WHETHER OR NOT ACTIVE HAS PREVIOUSLY BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES. HOWEVER, SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION ONLY APPLIES WHERE ALLOWED. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ACTIVE’S TOTAL AGGREGATE LIABILITY FOR ALL MATTERS ARISING FROM OR RELATED TO THIS AGREEMENT IS LIMITED TO (I)THE
AMOUNT OF FEES ACTUALLY PAID BY CLIENT AS CONSIDERATION FOR THE SPECIFIC PRODUCT UNDER THE APPLICABLE SCHEDULE GIVING RISE TO
SUCH CLAIMS DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE FIRST CAUSE OF ACTION AROSE LESS ANY AMOUNTS
PAID BY ACTIVE WITH RESPECTIVE TO LIABILITIES UNDER THIS AGREEMENT, OR (II) IF NO SUCH PAYMENTS HAVE BEEN MADE OR SUCH AMOUNTS
CANNOT BE CALCULATED, 10,000 U.S. DOLLARS (OR THE EQUIVALENT THERETO AS DETERMINED BY THE APPLICABLE COUNTRY’S CURRENCY), AS
APPLICABLE. NOTWITHSTANDING THE ABOVE, IF CLIENT RESIDES OUTSIDE OF THE U.S., THIS DOES NOT AFFECT ACTIVE’S LIABILITY FOR DEATH OR
PERSONAL INJURY ARISING FROM ITS NEGLIGENCE, NOR FOR FRAUDULENT MISREPRESENTATION, MISREPRESENTATION AS TO A FUNDAMENTAL
MATTER, OR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
4.2 TO THE EXTENT THIS AGREEMENT IS GOVERNED BY ENGLISH LAW, THE FOLLOWING APPLIES: ACTIVE IS LIABLE UNDER APPLICABLE STATUTORY
PROVISIONS FOR INTENT AND GROSS NEGLIGENCE. THE SAME APPLIES TO ASSUMPTIONS OF GUARANTEES, STRICT LIABILITY, OR INJURY TO LIFE,
LIMB, OR HEALTH. ACTIVE IS LIABLE FOR ANY NEGLIGENT BREACHES OF ESSENTIAL CONTRACTUAL OBLIGATIONS BY ACTIVE BUT THE AMOUNT
SHALL BE LIMITED TO THE TYPICALLY OCCURRING FORESEEABLE DAMAGE. ANY ADDITIONAL LIABILITY OF ACTIVE IS EXCLUDED.
4.3 TO THE EXTENT THIS AGREEMENT IS GOVERNED BY AUSTRALIAN LAW, THE FOLLOWING APPLIES: EXCEPT AS EXPRESSLY PROVIDED IN THIS
AGREEMENT AND EXCEPT FOR ANY CONDITION OR WARRANTY, THE EXCLUSION OF WHICH COULD BE VOID OR OTHERWISE CONTRAVENE THE
TRADE PRACTICES ACT 1974 (CTH) OR ANY OTHER APPLICABLE LAW (“NON EXCLUDABLE CONDITION”), ALL SOFTWARE AND SERVICES OF ACTIVE
ARE PROVIDED TO CLIENT 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. EXCEPT FOR ANY NON-EXCLUDABLE CONDITION OR
OTHERWISE AS CONTAINED IN THIS AGREEMENT, ACTIVE EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE USE OF ITS SOFTWARE OR SERVICES
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WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SPECIFICATIONS WILL MEET CLIENT’S REQUIREMENTS. WHERE LEGISLATION IMPLIES INTO
THIS AGREEMENT ANY NON-EXCLUDABLE CONDITION, ACTIVE’S LIABILITY FOR ANY BREACH OF SUCH NON-EXCLUDABLE CONDITION WILL BE LIMITED
AT ACTIVE’S SOLE DISCRETION TO ONE OR MORE OF THE FOLLOWING: (1) IN THE CASE OF GOODS, ANY ONE OR MORE OF THE FOLLOWING: (I) THE
REPLACEMENT OF THE GOODS OR THE SUPPLY OF EQUIVALENT GOODS; (II) THE REPAIR OF THE GOODS; (III) THE PAYMENT OF THE COST OF
REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS; OR (IV) THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; (2) IN THE
CASE OF SERVICES: (I) THE SUPPLYING OF THE SERVICES AGAIN; OR (II) THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.
(B) ACTIVE SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL OR PUNITIVE DAMAGES INCLUDING WITHOUT
LIMITATION DAMAGES FOR LOST PROFIT, LOSS OF GOODWILL, WORK STOPPAGE, DATA LOSS, ANTICIPATED SAVINGS OR COMPUTER FAILURE
WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF ACTIVE OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES OR IF SUCH LOSS OUGHT REASONABLY TO HAVE BEEN IN THE CONTEMPLATION OF THE PARTIES AT THE AGREEMENT DATE. DESPITE
ANY OTHER PROVISION CONTAINED IN THIS AGREEMENT, ACTIVE’S TOTAL AGGREGATE LIABILITY FOR ALL MATTERS ARISING FROM OR RELATED TO
THIS AGREEMENT IS LIMITED TO THE AMOUNT OF FEES ACTUALLY PAID BY CLIENT AS CONSIDERATION FOR THE SOFTWARE AND SERVICES GIVING
RISE TO SUCH CLAIM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE LESS ANY AMOUNTS
PAID BY ACTIVE WITH RESPECTIVE TO LIABILITIES UNDER THIS AGREEMENT.
4.4 FOR THE PURPOSES OF THIS SECTION 4 AND ANY INDEMNIFICATION PROTECTING ACTIVE UNDER THIS AGREEMENT, REFERENCE TO ACTIVE
WILL ALSO INCLUDE ITS SUPPLIERS AND LICENSORS.
5. TERM AND TERMINATION.
5.1. Term. The Term (as defined in the applicable Product Attachment) for each Product offered under this Agreement will be as set forth in the applicable Product
Attachment. This Agreement will continue until either party terminates all Schedules and Product Attachment as provided hereunder.
5.2. Termination. Either party may terminate this Agreement, including any or all Product Attachments and Schedules executed hereunder, immediately upon written
notice: (a) in the event that the other party commits a non-remediable material breach of this Agreement and/or the applicable Product Attachment or Schedule, or if
the other party fails to cure any remediable material breach or provide a written plan of cure acceptable to the non-breaching party within thirty (30) days of being
notified in writing of such breach, except for breach of Section 2 of these General Terms which will have a ten (10) day cure period; or (b) in the event of institution of
bankruptcy, receivership, insolvency, reorganization, or other similar proceedings by or against either party under any section or chapter of the United States Bankruptcy
Code, as amended, or under any similar laws or statutes of the United States or any state thereof, if such proceedings have not been dismissed or discharged within
thirty (30) days after they are instituted; or the insolvency or making of an assignment for the benefit of creditors or the admittance by either party of any involuntary
debts as they mature or the institution of any reorganization arrangement or other readjustment of debt plan of either party not involving the United States Bankruptcy
Code. Where a party has the right to terminate this Agreement, such party may at its discretion either terminate the entire Agreement or the applicable Product
Attachment or Schedule; provided however, that termination of a Product Attachment will automatically terminate all Schedules entered into pursuant to such Product
Attachment. Product Attachments and Schedules that are not terminated will continue in full force and effect under the terms ofthis Agreement. Following termination
of this Agreement or a Product Attachment (for whatever reason), if requested by Active, Client will certify that it has returned or destroyed all copies of the applicable
Protected Materials and acknowledges that its rights to use the same are relinquished. Except for the refund of prepaid fees set forth in Section 3.5 (Infringement), as
applicable, termination for any reason will not excuse Client’s obligation to pay in full any and all amounts due, nor will termination by Active result in a refund of fees
paid. Nothwithstanding the foregoing, Client may terminate this agreement, including any or all Product Attachements and Schedules executed hereunder, for
convenience upon thirty (30) days’ prior written notice to Active and immediate payment of an early termination fee in the amount of $24,000.
5.3. Suspension. Active will be entitled to suspend any or all Products or deactivate Client’s account, including suspending its performance and obligation to remit
payments hereunder, upon ten (10) days’ written notice to Client in the event Active reasonably believes that Client is in material breach of this Agreement, Client’s
use of the Products is not in compliance with applicable law or the Agreement, is fraudulent, or is otherwise suspect, or if there is a dispute as to the legal authority of
a Client-associated party to perform hereunder. Further, Active, in its reasonable discretion, may terminate Client’s password, accounts (or any part thereof), and/or
Client’s right to use the Products, and remove and discard any and all of Client’s content within the Products, at any time , including, without limitation, for lack of use,
failure to timely pay any fees or other monies due Active.. Client agrees that any termination of its use of the Products may be effected upon reasonable notice, and
acknowledges and agrees that Active may immediately deactivate or delete Client’s account and all related content and files related to Client’s account and/or bar any
further access to such files or Products. Further, Client agress that Active shall not be liable to Client or any third party for any termination of use or access to the
Products. All provisions of this Agreement that by their nature should survive termination of Client’s right to use the Products shall survive (including, without limitation,
all limitations of liability, releases, indemnification obligations, disclaimers of warranties and Intellectual Property protections and licenses).
6. GENERAL PROVISIONS.
6.1. Force Majeure. Neither party will incur any liability to the other party on account of any loss, claim, damage, or liability to the extent resulting from any delay or
failure to perform all or any part of this Agreement, if and to the extent such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond
the reasonable control and without any negligence on the part of the party seeking protection under this subsection, including internet service provider or third party
payment delays or failures, acts of God, strikes, lockouts, riots, acts of war, terrorism, earthquake, fire, or explosions. Dates by which performance obligations are
scheduled to be met will be extended for a time equal to the time lost due to the delay so caused.
6.2. Assignment. Active may assign this Agreement and any or all of its rights and obligations herein without Client’s approval. Client may not resell, assign, or
transfer any of its rights or obligations under this Agreement except as expressly provided herein, and any attempt to resell, assign, or transfer such rights or obligations
without the prior written consent of Active will be null and void.
6.3. Change of Control. Client will cause each Schedule hereunder to be assigned to (a) the purchaser of all or substantially all of Client’s assets or equity securities
or (b) to any successor by way of merger, consolidation, or other corporate reorganization of Client ((a) and (b) together, a “Change of Control”). Client will provide
written notice to Active of any proposed or completed Change of Control as soon as permissible and in any event within five (5) days of the public announcement or
close of the transaction, whichever occurs first. Within the thirty (30) day period following such notice, Active will have the right to immediately terminate each applicable
Schedule if Active determines, in its reasonable good faith discretion that the purchaser or assignee is a competitor of Active or a party with whom Active does not want
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to do business. Client agrees to require that the purchaser or assignee (as outlined in this Section 6.3) agree, in writing, to be bound by the terms and conditions of
the Agreement and each applicable Schedule.
6.4. Export; Anti-Bribery. The Products may include encryption software or other encryption technologies that may be controlled for import, transfer, export, or other
purposes under Export Laws. Client may not export, re-export, transfer, or re-transfer or assist or facilitate in any manner the export, re-export, transfer, or re-transfer
of, or provide access to, any portion of the Products in violation of Export Laws, as determined by the laws under which Client operates, including: (a) to any country
on Canada’s Area Control List; (b) to any country subject to U.N. Security Council embargo or action; (c) contrary to Canada’s Export Control List Item 5505; (d) to
countries subject to U.S. economic sanctions and embargoes; and (e) to persons or entities prohibited from receiving U.S. exports or U.S.-origin items, including, to
any person or entity appearing on the Office of Foreign Assets Control's Specially Designated Nationals and Blocked Persons List; the Bureau of Industry and Security's
Denied Persons List, Entity List, or Unverified List; or the Department of State Debarred List. Client hereby represents and covenants that: (i) Client is eligible to access
the Products under Export laws and all other applicable laws; and (ii) Client will import, export, re-export, transfer, or re-transfer the Products to, or use or access the
Products in, any country or territory only in accordance with Export Laws and all other applicable laws. Furthermore, Client hereby represents and covenants that, in
connection with its respective activities conducted under this Agreement, it will comply with the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.K.
Bribery Act of 2010, as amended, and the Convention on Combating Bribery of Foreign Public Officials and has not, and will not, make or receive, directly or indirectly,
any payments or gifts, or offers or promises of payments or gifts or things of value in exchange for anything that may arise out of this Agreement in a manner that would
violate these laws and rules or any other applicable anti-corruption or anti-bribery laws or regulations.
6.5. Notices. Any notices required to be given under this Agreement will be in writing sent to the address on file with Active for Client or, in the case of Active, to the
address set forth in Section 7 of these General Terms to the attention of Legal Department. Notices will be deemed received the next day if sent via overnight mail or
courier with confirmation of receipt, or three (3) days after deposited in the mail sent certified or registered.
6.6. Relationship. This Agreement is not intended to create a partnership, franchise, joint venture, agency, or a fiduciary or employment relationship. Neither party
may bind the other party or act in a manner which expresses or implies a relationship other than that of independent contractor.
6.7. Severability. If any part or provision of this Agreement is held to be unenforceable, illegal, or invalid by a court of competent jurisdiction for any reason whatsoever,
(a) the validity, legality, and enforceability of the remaining provisions of this Agreement (including all portions of any provisions containing any such unenforc eable
provision that are not themselves unenforceable) will not in any way be affected or impaired thereby, and (b) to the fullest extent possible, the unenforceable, illegal, or
invalid provision will be deemed modified and replaced by a provision that approximates the intent and economic effect of the unenforceable, illegal, or invalid provision
and this Agreement will be deemed amended accordingly.
6.8. Survival. The following provisions will survive any termination, cancellation, or expiration of this Agreement: Sections 1, 2, 3.2, 3.5, 3.6, 3.7, 3.8, 3.9, 4, 5.2, 6,
and 7 of these General Terms, and such other provisions that should reasonably survive termination, cancellation, or expiration hereof.
6.9. Amendments; No Waiver. No amendment or waiver of any provision of this Agreement will be effective unless it is in writing and signed by both parties.
6.10. Entire Agreement. This Agreement constitutes the parties’ entire agreement relating to its subject matter. It cancels and supersedes all prior or contemporaneous
oral or written communications, agreements, requests for proposals, proposals, conditions, representations, and warranties, or other communication between the
parties relating to its subject matter as well as any prior contractual agreements between the parties. All pre-printed terms of any Client purchase order, business
processing document, or on-line terms will have no effect. There have been no material representations or statements by any person or party to this Agreement as an
inducement for a party hereto to accept this Agreement other than what is expressly set forth in writing herein.
6.11. No Third Party Beneficiaries. This Agreement is for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or
benefits on any third party, including any employee of a party, any client of a party, or any employee of a client of a party. Notwithstanding the above, the parties
acknowledge that all rights and benefits afforded to Active under this Agreement will apply equally to its licensors and suppliers, and the owner of the Third Party
Products with respect to the Third Party Products, and such third parties are intended third party beneficiaries of this Agreement, with respect to the Third Party Products
as applicable.
6.12. Governing Law. Except as set forth below, this Agreement will be governed by the laws of the State of Delaware, without giving effect to the conflict of law
provisions thereof and as applicable under United States federal law. Neither the United Nations Convention of Contracts for the International Sale of Goods nor the
Uniform Computer Information Transactions Act will apply to this Agreement. THE PARTIES HERETO IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. Notwithstanding the above, for purposes of this Agreement,
certain of the terms and conditions will vary depending on the location of the Client. If a country or term is not specified below, then the Governing Law and Venue set
forth above shall apply.
If Client’s principal place of business is in: The governing law is: The courts having exclusive jurisdiction are:
Canada Province of British Columbia Province of British Columbia
United Kingdom, Ireland, Germany, France,
or Austria
England England
Singapore Singapore Singapore
New Zealand England England
Hong Kong Hong Kong Hong Kong
Australia New South Wales Sydney, New South Wales
Switzerland England England
Denmark England England
Netherlands England England
Spain England England
Sweden England England
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6.13 Order of Precedence. To the extent any terms and conditions of these General Terms conflict with the terms and conditions of any Product Attachment, the
provisions of the Product Attachment will control. To the extent any provision of these General Terms or any Product Attachment conflict with the provisions of a Third
Party EULA, the Third Party EULA will control. In the event of a conflict between a Schedule and these General Terms or the applicable Product Attachment, the
General Terms or the applicable Product Attachment will control, provided, however, that such standard variable terms such as price, quantity, license scope, payment
terms, shipping instructions, and the like will be specified on each Schedule. Further, Client agrees and acknowledges that it shall not itself, or through any Affiliate,
employee, consultant, contractor, agent, or other third party, amend, alter, or contract away (or seek to amend, alter, or contract away) any of its rights, liabilities, or
obligations under this Agreement through any means (including, but not limited to, through any waiver, contract, terms, or communication with End Users (individually
and collectively, “Client Terms”). Client agrees and acknowledges that any such amendment, alteration, or contracting away of any such liabilities, or obligations under
this Agreement shall be void, and of no force or effect. Active shall bear no liability or obligation to any End User under any Client Terms, and any provision of any
Client Terms that is inconsistent with this Agreement, or that expressly, implicitly, or effectively imputes any liability or obligation upon Active to any End User or to any
other third party shall be void, and of no force or effect.
6.14 Interpretation. Any reference to a statutory provision includes a reference to any modification or re-enactment of it from time to time. The headings and pronouns
contained herein are for convenience and ease of reference only and will not affect the construction or interpretation of this Agreement. The word “including” in this
Agreement means “including, without limitation.” All references to days means calendar days. This Agreement will not be construed in favor of or against a party
based on the author of the document.
6.15 Counterparts. These General Terms and each Product Attachment, Schedule, and any exhibits thereto may be executed in one or more counterparts, each of
which will constitute an enforceable original of this Agreement, and the parties agree that electronic or digital signatures, as well as PDF scanned copies of signatures,
will be as effective and binding as original signatures.
6.16 Remedies Cumulative; Injunctive Relief. All rights and remedies provided in this Agreement are cumulative and not exclusive of any other rights or remedies
that may be available to the parties, whether provided by law, equity, statute, in any other agreement between the parties or otherwise. Furthermore, in the event of a
breach or threatened breach of the Intellectual Property obligations in this Agreement, Active, in addition to any and all other rights (at law or in equity) which may be
available, will have the right of injunctive relief and other appropriate equitable remedies to restrain any such breach or threatened breach, without the requirement of
posting a bond.
6.17 U.S. Government Restricted Rights. The Products are provided with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to
restrictions as set forth in subparagraph (c) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013, or subparagraphs (b)(1) and (2)
of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable. The Manufacturer is Active Network, LLC or one of its Affiliates or
subsidiaries.
7. DEFINITIONS.
“Active” means Active Network, LLC, or, if Client’s principal place of business is in Canada, The Active Network, Ltd., together with their Affiliates, with a principal place
of business at 5850 Granite Parkway, Suite 1200, Plano, TX 75024.
“Affiliates” of a designated corporation, company, partnership, or other entity means all entities which control, are controlled by, or are under common control with the
named entity, whether directly or through one or more intermediaries. For purposes of this definition “controlled” and “control” mean ownership of more than 50% of
the voting capital stock or other interest having voting rights with respect to the election of the board of directors or similar governing authority.
“Agreement” means these General Terms, together with all Product Attachments and Schedules accepted by the parties (as described in the Preamble).
“Client” means the individual who accepts this Agreement (as described in the Preamble) and any business entity on behalf of which such individual accepts this
Agreement.
“Documentation” means the user instructions, release notes, manuals, or on-line help files in the form generally made available by Active, regarding the use of the
applicable Products, as updated by Active from time to time.
“Effective Date” means the date of last signature on page one of this Agreement.
“End Users” means users who register for, sign up, or otherwise use the Products in connection with the Events (as defined in the applicable Product Attachement).
“Export Laws” means export control laws and regulations of the countries and/or territories in which Active operates or in which the Products are used, accessed, or
from which the Products are provided.
“Hardware” means computer hardware, equipment, and/or utilities supplied by Active pursuant to a Schedule.
“Intellectual Property” means any and all intellectual property and proprietary rights (in whole or in part) recognized in any country or jurisdiction in the world, now or
hereafter existing, and whether or not perfected, filed, or recorded, including inventions, technology, patent rights (including patent applications, divisions, and
disclosures), copyrights and all works of authorship (whether or not copyrightable), moral rights, trade secrets, trademarks and other indicators of source (and the
goodwill associated therewith), service marks, trade dress, logos, methodologies, procedures, processes, know-how, tools, utilities, techniques, protocols, various
concepts, ideas, methods, models, templates, software, source code, algorithms, tools, utilities, the generalized features of the structure, sequence and organization
of software, user interfaces and screen designs, layouts, general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of
operation of systems, training methodology and materials, which Active has created, acquired, or otherwise has rights in, and may, in connection with the Products or
the performance of Services hereunder, create, employ, provide, modify, create, acquire, or otherwise obtain rights in, and in each case includes any derivative works,
alterations, and other modifications using, incorporating, based on, or derived from the foregoing.
“Maintenance Services” means the provision of Updates and Upgrades related to the SaaS all as more particularly set out in the applicable Product Attachment and/or
Schedule.
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“Participant Information” means certain information that Active collects from End Users, individuals, and/or licensees as part of the registration process for Events
(as defined in the applicable Product Attachment).
“Preamble” means the first paragraph of these General Terms.
“Products” means, collectively, SaaS, Services, Hardware, and all other services, products, or materials provided by Active to Client under the terms of this Agreement.
“Professional Services” means the implementation, site planning, configuration, integration, and deployment of the SaaS, training, project management, or other
consulting services.
“Protected Materials” means Products, except for Hardware.
“SaaS” means (a) the software as a service which is hosted by Active or its hosting providers and which is accessed by Client and its users via the internet; (b) Active’s
web sites; and (c) associated services, as more fully described in the applicable Product Attachment. SaaS functionality is subject to change from time to time at
Active’s sole discretion.
“Services” means, collectively, (a) Professional Services; (b) Maintenance Services; (c) Support Services; and (d) any other services set forth in a Schedule.
“Schedule” means the document, schedule, quote, pricing form, web page, order form, or similar document and the terms and conditions contained therein “accepted”
(as described in the Preamble) by the parties that describes order-specific information, such as a description of Products ordered, features, options, license details,
and fees.
“Support Services” means the provision of technical assistance for SaaS or Hardware as further described in an applicable Product Attachment and/or Schedule.
“Taxes” means any and all applicable taxes, including sales, use, excise, withholding, assessments, stamp, transfer, value-added, duties, tariffs, export charges, import
charges, and other taxes or assessments (however designated) imposed by any foreign, federal, provincial, state, or local governmental authority upon or applicable
to Products arising out of this Agreement, other than those based on Active’s net income.
“Third Party EULA” means the end user license agreement, if any, that accompanies the Third Party Products, which governs the use of or access by Client to the
applicable Third Party Products.
“Third Party Products” means those hardware, firmware and/or software products, including updates and enhancements thereto, if any, owned by third parties,
together with all user manuals and other documents accompanying the delivery of the Third Party Products.
“Updates” means bug fixes, patches, error corrections, minor releases, or modifications or revisions that enhance existing performance of the SaaS that are provided
as part of Maintenance Services. Updates exclude Upgrades.
“Upgrades” means a new SaaS release that contains major functionality enhancements or improvements; and which is designated by an incremental increase in the
release number to the left of the decimal point (by way of example only, release 5.0 designates an Upgrade from release 4.x). Upgrades exclude new products,
modules or functionality for which Active generally charges a separate fee.
“User” means an individual who is authorized by Client to use the Products and to whom Client (or Active at Client’s request) has supplied a user identification and
password. Users may include employees, consultants, contractors and agents of Client, and third parties with which Client transacts business, but shall not include
Client’s End User.
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Recreation and Membership Management Product Attachment
This document is a “Product Attachment” as defined in the General Terms entered into by Client and Active and is subject to and incorporates by reference the
provisions of the General Terms. This Product Attachment is effective as of the date it is “accepted” (in accordance with the Preamble to the General Terms). Any
capitalized terms not defined herein have the meaning ascribed to them in the General Terms.
1. SERVICES. Active will provide the Products related to events, camps, licenses, classes, tickets, contests, permits, facility/equipment use, transactions, sales,
memberships, reservations, donations, and/or activities solely related to the Parks and Recreation Department (together, “Events”), including without limitation access
to its Products. Client agrees to cooperate with Active and to provide Active with certain information relating to Client’s organization as necessary for Active to provide
the Products. Products provided hereunder are deemed delivered when access is made available to Client.
2. LICENSE TO INTELLECTUAL PROPERTY/PROMOTION.
2.1. Active hereby grants to Client a limited, non-exclusive, non-transferable, non-sublicensable license during the Term of this Product Attachment (a) to use the
Products for the purposes of offering, promoting, managing, tracking, and collecting fees in connection with Client’s Event(s) solely in accordance with the Agreement
and the Schedule, which for purposes hereof will include the support and maintenance handbook applicable to the Products (available for review in the Client portal),
as may be updated from time to time, and (b) to display, reproduce, distribute, and transmit in digital form Active’s name and logo solely for the purposes set forth in
this Section 2. Client hereby grants to Active a limited license to use information provided by Client relating to Client’s organization and Event, which may include
content regarding the Event, Client’s organization’s name, trademarks, service marks, and logo (collectively, the “Marks”), in connection with the promotion of Client’s
organization or Events and the Products that Active provides.
2.2. Client will make reasonable efforts to promote and encourage the use and availability of the Products in connection with the promotion of Events. During the Term
of this Product Attachment, Active will be the sole and exclusive provider of registration software and other services similar to the Products provided to Client hereunder
for all of Client’s Events for which registration begins during the Term of this Product Attachment until the Event occurs. For clarity, if an Event occurs after this
Agreement is terminated, other than for Active’s uncured material breach, and registration for such Event begins during the Term of this Agreement, then Active
Products shall be used. Client expressly understands and agrees that the exclusivity set forth in this Section 2.2 is consideration in exchange for the pricing and other
benefits being provided to Client hereunder. Without limiting the foregoing, Client will not enter into any agreement, arrangement, or relationship with any other party
that offers online registration or transaction processing services similar to the Products provided to Client hereunder.
2.3. Active may present commerce offers to users who register for, sign up, or otherwise use the Products in connection with the Events (“End Users”). Any such End
Users may opt in to receive information, items, or promotions/deals from Active or third parties, in which case, Active or such third party will be responsible for fulfillment
and providing customer service for any such offers. Client will not present any competing offers to End Users.
3. INFORMATION COLLECTION.
3.1. Active collects certain information from End Users, individuals, and/or Licensees as part of the registration process for Events (collectively, “Participant Information”). Client may login to Active’s data management system to access the Participant Information. Client is responsible for the security of its login information
and for the use or misuse of such information. Client will immediately disable a user’s access who is using the Products on its behalf or notify Active in writing if any
such user is no longer authorized or is using such information without Client’s consent. Active may rely, without independent verification, on such notice, and Client,
inclusive of Client’s parent, subsidiaries, and affiliated entities, as applicable, and each of their respective officers, directors, managers, shareholders, owners, agents,
employees, contractors, and representatives, to the extent not prohibited by law, covenant not to sue and agree to defend, indemnify, and hold harmless Active from
any claims arising from Active providing, denying, suspending, or modifying access to or use of the Products of any individual as directed by Client or by someone who
Active reasonably, under the circumstances, believes is authorized to act on behalf of Client. In the event of any dispute between two or more parties as to account
ownership, Client agrees that Active will be the sole arbiter of such dispute in its sole discretion and that Active’s decision (which may include termination or suspension
of any account subject to dispute) will be final and binding on all parties. Client agrees not to use the Products to collect or elicit (a) any special categories of data (as
defined in the General Data Protection Regulation, as may be amended from time to time), including, but not limited to, data revealing racial or ethnic origin, political
opinions, religious or other beliefs, trade-union membership, as well as personal data concerning health or sexual life or criminal convictions other than as expressly
directed by Active, and in such event, only in pre-defined fields within the Products that are intended for that purpose; or (b) credit card information other than in pre-
defined fields within the Products that are intended for that purpose.
3.2. Both parties agree to use the collected information in compliance with (a) all applicable laws, rules and regulations, including, without limitation, those governing
privacy and personal information (e.g., by including an appropriate CAN-SPAM Act and Canadian Anti-Spam Legislation opt out mechanism in email communications)
and the use of credit card data (e.g., using credit card information only for purposes authorized by the cardholder); (b) applicable credit card network rules and Payment
Card Industry Data Security Standards; and (c) Active’s privacy policy, as published on its website or otherwise provided by Active from time to time.
4. FEES.
4.1. Client will pay the fees as more fully described in the applicable Schedule. Unless otherwise set forth in the applicable Schedule, Active will charge registration
fees to individuals who register for the Events or purchase goods or services online, and will process and collect such fees as a payment facilitator according to the
card networks. On a bi-weekly basis, unless otherwise set forth in the applicable Schedule, Active will pay Client sums due to Client based on the total fees collected,
net of Active’s service fees as set forth in the applicable Schedule and any other deductions provided herein. The applicable currency will be set forth in the Schedule.
4.2. If applicable, any minimum volume commitment will be set forth in the applicable Schedule. The minimum volume calculation will begin on the date of the first
live operational use of the Products for the Event(s) (“Go-Live Date”). If the Schedule indicates that Client is paying on a subscription basis, Client will be invoiced for
the first month of subscription fees upon the Go-Live Date, with subsequent subscription fees being invoiced monthly.
4.3. If (a) there are any overdue or overage amounts owed by Client; or (b) there are returned charges or items, including those resulting from any error or complaint
related to an Event, Active has the right to charge fees owed to Active by Client by issuing an invoice, or by offsetting the deficiency from any account balance Client
maintains with Active or any payment Active owes Client.
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4.4. In the event Client is entering into this Product Attachment and using the Products for the benefit of a third-party Event or organization (“Third Party Recipient”),
Client agrees that Active can remit amounts directly to the Third Party Recipient identified by Client. In addition, Client will cause each Third Party Recipient to agree
to and comply with provisions that are at least as protective of Active as Sections 3 and 4 of the General Terms in Client’s agreement with such Third Party Recipient.
Should Client fail to obtain such agreement to such provisions and the failure results in costs or damages to Active, to the extent not prohibited by law, Client agrees
to defend, indemnify, and hold Active harmless from any such costs and damages, including, without limitation, reasonable attorneys’ fees. In addition, Client is
responsible and liable for each Third Party Recipient’s compliance with the terms and conditions of the Agreement.
4.5. It is Client’s responsibility to notify End Users of Client’s refund policy. Client must ensure that Client’s refund policies are consistent with the Agreement. Client
agrees that all fees for a given Event are earned by Client only following either the conclusion or delivery of the applicable Event (as applicable) and all amounts
ultimately due to Client will be net of all service fees, reversals, refunds, disputed charges, chargebacks and other deductions whether due to customer complaints,
allegations of fraud, discrepancies related to the applicable Event or otherwise. No payments will be made to Client with respect to any Event that is cancelled. If
payments have already been made by Active to Client for a cancelled Event or if Active reasonably determines that it is prudent or otherwise necessary to pay a refund
to or honor a chargeback request from an End User, Active may issue an invoice or offset an equivalent amount from Client’s account or payment owed by Active to
Client and return the value to the End User, and if sufficient funds are not available, Client must reimburse Active on demand. Active will notify Client of the reason for
such offset provided that it is lawful to do so.
4.6. Client hereby authorizes and appoints Active as its limited agent to initiate payment card and ACH credit or debit entries to and from Client’s bank account.
Payment by Receiver (in the case of ACH entries) or card networks (in the case of Payment Card transactions) to Active is considered the same as payment made
directly to Client. Client, upon receipt of funds by Active, must (1) provide the purchased goods or services to the End User, or (2) credit the End User for the full
amount of funds received by Active, which credit is not revocable by Client, and evidence this credit in writing in a form capable of being retained for future reference.
For transactions involving goods or services, Client must provide the purchased goods and services as agreed to between Client and End User, regardless of whether
Active transmits the funds to Client.
5. TERM AND TERMINATION.
5.1. Unless otherwise set forth in the applicable Schedule, this Product Attachment will commence on the Effective Date and will continue in effect until the earlier to
occur of (i) its termination in accordance with the terms and conditions below and (ii) the fifth anniversary of the Effective Date (the “Initial Term”). This Product
Attachment shall renew following the Initial Term for subsequent renewal terms thereafter (the “Renewal Term(s)”, and, together with the Initial Term, the “Term”) by
mutual written agreement of the parties. Unless otherwise set forth in the applicable Schedule, to the extent that Client enters into a Schedule for additional Products
that are related to or interoperable with the Products set forth in a previously entered into Schedule, the Term of such subsequent Schedule will be concurrent and
coterminous with the Term of the previously entered into Schedule.
5.2. If Client has entered into a sub-merchant agreement for payment processing services, and such agreement is terminated by the applicable acquiring bank, Active
may terminate this Product Attachment and the effected Schedule.
6. NON-APPROPRIATION.
Client’s obligations and all amounts payable hereunder are contingent upon sufficient appropriations therefore by Client’s Governing Body. If sufficient appropriations
are not made, Client will notify Active of the same, and this Agreement will terminate forthwith. Client represents that it intends to fulfill its obligations under this
Agreement and reasonably believes that funds in amounts sufficient to fulfill these obligations lawfully can and will be appropriated and made available for this purpose.
In the event funds are not appropriated in amounts sufficient to fulfill these obligations, Client shall use its best efforts to satisfy any requirement for payment from any
other source of funds legally available for this purpose. Notwithstanding the foregoing, Client shall notify Active within ten (10) days of any action by Client's governing
body not to appropriate funds for payment of Client's obligations hereunder, and will provide with such notice a copy of the resolution, minutes or recording of such
action.
7. MISCELLANEOUS.
7.1. Sections 5 and 7 of this Product Attachment and any fees owed by Client will survive any termination or expiration of the Agreement.
7.2. The “Liquidated Damage Amount” equals the “Annual Projected Contract Value” (to the extent such amount is specified in the applicable Schedule(s)) times
the number of years in the then-current Term, minus the amount of revenue already paid to Active during the then-current Term, net of all refunds, credit card
chargebacks, and all other deducted amounts. Client agrees that (a) it will pay Liquidated Damages to Active if (i) Client breaches its exclusivity obligations under
Section 2.2 of this Product Attachment; (ii) Active terminates a Schedule and/or the Agreement in accordance with Section 5.2 of the General Terms; (iii) Client fails to
cause an assignment as specified in Section 6.2 of the General Terms; and/or (iv) Active terminates a Schedule and/or the Agreement pursuant to Section 6.3 of the
General Terms; (b) all Liquidated Damage Amounts set forth in the Agreement will automatically reset during each Renewal Term; (c) Active may offset any Liquidated
Damages Amount set forth in the Agreement from any account balance Client maintains with Active or any payment Active owes Client; (d) because of the difficulty in
making a precise determination of actual damages incurred by Active, the Liquidated Damage Amount will be assessed, not as a penalty, but as a reasonable
approximation of costs incurred by Active and Active’s loss of revenue., and (e) that in any suit or other action or proceeding involving the assessment or recovery of
liquidated damages, the reasonableness of the Liquidated Damage Amount will be presumed and the liquidated damages assessed will be in addition to every other
remedy now or hereinafter enforceable at law, in equity, by statute, or under the Agreement.
DocuSign Envelope ID: 69464E0A-55BF-4DCE-8CD0-115FF04160FB
401 S. Pavilion Way
PALM SPRINGS, CA 92262 United States
Ship To Address
Larry klingamanShip To Contact
401 S. Pavilion Way
PALM SPRINGS, CA 92262 United States
Bill To Address
Larry klingamanBill To Contact
PALM SPRINGS PARKS & RECREATIONBill To Name
larry.klingaman@palmspringsca.govEmail
Larry klingamanContact Name
carlos.peixoto@activenetwork.comOwner Email
Carlos PeixotoOpportunity Owner
Sharon KramerPrepared By
USDCurrency
00129780Quote Number
10/4/2023Created Date5850 Granite Parkway, Suite 1200
Plano, TX 75024
US
Company Address
Product Product
Type Description Quantity Fee
%
Total
Price
ACTIVE Captivate - Tier 5 SaaS The cost of this feature will be subscription based - and will be
due annually for the duration of your contract.1 7,000.00
ACTIVENet - credit card refunds - flat fee SaaS 1 0.10
ACTIVENet - Functionality: Facilities SaaS ACTIVENet - Functionality: Facilities 1
ACTIVENet - Functionality: FlexReg SaaS ACTIVENet - Functionality: FlexReg 1
ACTIVENet - Functionality: League
Management SaaS 1
ACTIVENet - Functionality: Memberships SaaS 1
ACTIVENet - Functionality: POS
(Point-of-sale)SaaS ACTIVENet - Functionality: POS (Point-of-sale)1
ACTIVENet - Functionality: Program &
Activity Registration SaaS ACTIVENet - Functionality: Program & Activity Registration 1
ACTIVENet - Public Interface ($0 -
$149.99 transaction fee - % fee)SaaS 1 7.30
ACTIVENet - Public Interface ($150 -
$499.99 transaction fee - % fee)SaaS 1 3.90
ACTIVENet - Public Interface ($500 and
up transaction fee - % fee)SaaS 1 2.80
ACTIVENet - Public Interface - ($2.00
Service Charge Minimum)SaaS 1
ACTIVENet - Public Interface Fee Set up
- passed to online registrant SaaS 1
ACTIVENet - Staff Interface - Payment
Processing Fee - Credit Card SaaS
Migration Loyalty Rates for first term of contract for U.S.
organizations between $8,000,000 to $15,000,000 in annual
revenue through ACTIVE Net.
1 2.70
ACTIVENet - Staff Interface - Payment
Processing Fee - Electronic
Cheque/Check Processing
SaaS 1 1.50
ACTIVENet - Staff Interface - Technology
Fee SaaS Rates for United States organizations exceeding $30,000,000
in annual revenue through ACTIVE Net.1 1.80
DocuSign Envelope ID: 69464E0A-55BF-4DCE-8CD0-115FF04160FB
Active Network, LLC
Signature:
______________________________________________________
Name:
______________________________________________________
Title:
______________________________________________________
Date:
______________________________________________________
Signature:
______________________________________________________
Printed Name:
___________________________________________________
Title:
__________________________________________________________
Date:
__________________________________________________________
PO# (if applicable):
_______________________________________________
Active reserves the right and may take additional measures to verify Client’s account which may consist of reviewing publicly available data and/
confirmation of Client provided information. Such verification measures will be completed in advance of remittance.
All fees described herein are in consideration of the Products that Active provides. Active and Client acknowledge that certain credit card network
rules and laws prohibit imposing a surcharge that is based on the type of payment method used (e.g., having a different fee for the use of a credit
card vs. debit card), and therefore, each agree not to impose such a surcharge on any End User.
The payment options we offer may include MasterCard, Visa, American Express and Discover.
If your order includes hardware, please note that all hardware orders have a 30-day return policy, and it is recommended that you inspect your
purchases upon delivery.
*Sales tax and shipping not included in total price. Sales tax and shipping, where applicable, will be added to your invoice.
Capitalized terms used in this Schedule and not defined have the meaning set forth in the General Terms or Product Terms, as
applicable.
Attachment: Exhibit A, Payment Services Agreement
USD 7,000.00Annual Projected
Contract Value
USD 7,000.00Total Price
Quote Acceptance Information
DocuSign Envelope ID: 69464E0A-55BF-4DCE-8CD0-115FF04160FB
EXHIBIT A
Payment Services Agreement
Revised: 09/23/22
IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT
To help the government fight the funding of terrorism and money laundering activities, Federal law requires all
financial institutions to obtain, verify, and record information that identifies each person who opens an account.
What this means for you: When you open an account, we will ask for your name, address, date of birth, and other
information that will allow us to identify you. We may also ask to see your driver’s license or other identifying
documents.
This Payment Services Agreement (“Agreement”) is a legal agreement between Client and Active Governing Client’s use of Active’s payment
processing services (collectively, the “Services”). Client must accept all of the terms of this Agreement to use the Services. Visa, Mastercard, and
Discover are collectively defined as the “Card Brands” and their cards are each a “Card”.
1. SERVICES
Active’s sponsor banks require certain information for the Services. Client must provide accurate and complete information and keep the
information up-to-date. Active relies on this information for underwriting and to meet our obligations under applicable federal and state laws and other regulatory requirements. Client must only use the Services for the business purpose described in the General Terms and/or applicable
Product Attachment. On an ongoing basis, Client will provide us with the current address of each of your offices, all “doing business as” (DBA)
names used by you, and a complete description of goods sold and services provided by you. If the scope or nature of your business or the type
of products or services you offer changes, Client must notify Active prior to the change. Client is liable to us for all losses and expenses
incurred by us arising out of your failure to report changes to us.
2. REQUIRED INFORMATION, VERIFICATION Active’s sponsor banks and the Card Brands require us to verify your identity, credit, business operations, and compliance with the obligations
under this Agreement. Client must provide sufficient information and documentation as requested by Active, including information to verify your
identity, financial statements, and customer information. Client authorizes Active to make, from time to time, any business and personal credit
inquiries, identity-verification inquiries, and other inquiries considered necessary to review the acceptance and continuation of this
Agreement. Client also authorizes any person or credit reporting agency to compile information to answer those inquires and to furnish that
information to Active. Active reserves the right to decline your application for any reason. Active is required to report certain information to our
sponsor banks or Card Brands, including the names of any principles and country of domicile.
3. COMPLIANCE WITH LAWS AND RULES
Client must comply with all rules and operating regulations issued from time to time by the Card Brands; any policies, procedures, and
instructions provided by us; and the Payment Card Industry Data Security Standards ("PCI DSS") and the Payment Application Data Security
Standard (“PA-DSS”) (collectively, "Rules"). The Rules are incorporated into this Agreement by reference as if they were fully set forth in this
Agreement. An abridged version of the Visa and MasterCard Rules may be viewed at usa.visa.com and www.mastercardmerchant.com. Client
further agrees to comply with all applicable federal, state, and local laws, rules, and regulations ("Laws"), as amended from time to time
affecting acceptance of Cards, processing of Card transactions, and the transactions contemplated by this Agreement. Client agrees to the
terms of the Electronic Funds Transfer Agreement incorporated into this Agreement by reference as if they were fully set forth in this Agreement. Client will assist Active in complying in a complete and timely manner with all Laws and Rules, now or hereafter applicable to any
Card transaction or this Agreement. Client will execute and deliver to Active all such instruments deemed necessary for compliance. If any
terms of this Agreement conflict with the Card Brand Rules, the Card Brand Rules will govern.
4. TRANSACTION PROCESSING
In order to process Card transactions, Client must familiarize itself with and adhere to the applicable Card Brand Rules. The following sections
address some but not all of the Card Brand Rules that must be adhered to in order to process card transactions. It is Client’s responsibility to understand and follow all Card Brand Rules.
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5. CARD ACCEPTANCE
Client will honor, without discrimination, any valid Card properly tendered by a Cardholder. “Cardholder” means a person possessing a Card and asserting to be the person in whose name the Card is issued. Client may elect not to accept Visa or MasterCard branded debit cards, but
you must provide Active with prior written notice of such election. Client will identify the Cardholder when accepting payment and will request
the Card expiration date and ZIP code or postal code from the Cardholder's billing address. It is also highly recommended that Client obtain the
security code from each Card. You must not honor any Card if the Card has expired or if the Card number is listed on a current Electronic
Warning Bulletin file. You will properly disclose to the Cardholder, at the time of the Card transaction, Client’s name, return policy, and other
limitations you may have on accepting returned merchandise. Active’s name may appear in conjunction with Client’s name on Cardholders’
statements. Client will not accept any payments from a Cardholder relating to previous charges for merchandise or services, and if Client
receive such payments, you will promptly remit them to Active.
6. CARD AUTHORIZATION
Client must obtain authorization via methods acceptable to the Rules prior to completing any Card transaction. Client must follow any
instructions received during the authorization process. Upon receipt of authorization, Client may consummate only the transaction
authorized. Where authorization is obtained, Client will be deemed to warrant the true identity of the customer as the Cardholder. Transactions
will be deemed invalid on Cards that are expired, whether or not an authorization has been obtained.
Authorizations are not a guarantee of acceptance or payment of a Card transaction and do not waive any provision of this Agreement or
otherwise validate a fraudulent transaction or a transaction involving the use of an expired Card. Active may refuse to authorize any
transaction, and we are not liable to you if authorization for a transaction is not given. Client will not have any claim against, or right to receive
payment from, a Cardholder or any other customer in any Card transaction if Active refuses to authorize the transaction for any reason.
7. RECORDS
Client will deliver to the Cardholder at the time of the transaction a complete and legible receipt from the Card transaction or refund. Client must retain the merchant copy of the receipt in accordance with the applicable Card Brand information security and confidentiality requirements for at
least 3 years following the date of completion of the Card transaction (or such longer period as the Rules may require).
8. RECURRING TRANSACTIONS
For recurring transactions, Client must obtain a written request from the Cardholder for such goods and services to be charged to the
Cardholder's account, the frequency of the recurring charge, and the duration of time during which such charges may be made. Client must
obtain such written consent before the first recurring transaction, and Client must notify the Cardholder that he or she is able to discontinue consent for recurring billing charges at any time. Client must retain evidence of such written consent for recurring transactions for twenty-four
months (24) from the date you submit the last recurring billing charge. If this Agreement is terminated for any reason, Client will, at your own
cost, advise all individuals and establishments to whom you submit recurring billing charges that Client no longer accept the Card for amounts
owed by such establishments or by such individual. The termination of a Cardholders' services constitutes immediate cancellation of the
Cardholder's consent for recurring billing charges. Active has no obligation to notify Client of such cancellation, nor shall Active have any
liability to Client arising from any such cancellation. Client will not complete any recurring transaction after receiving a cancellation notice from
the Cardholder, notice from Active to not complete a recurring transaction, or a response that the Card is not to be honored.
9. FUTURE DELIVERY
Client will not accept a Card transaction for the sale of goods or services for future delivery. If, however, Client has clearly disclosed your
intentions to the Cardholder and the Cardholder agrees, Client may submit the following types of charges to Active before you deliver the goods
purchased to the Cardholder: (a) charges representing deposits on (i) custom or special orders (provided that in doing so Client is in compliance
with applicable law) and (ii) mail orders for items not in inventory at the time the order is placed; and (b) charges representing advance, partial,
or full payment for items the Cardholder requests Client to deliver at a later date. If a Cardholder disputes any of these charges, Active will have
the right to Full Recourse for such charge. Client represents and warrants to Active that you will not rely on any proceeds or credit resulting from such transactions to purchase or furnish goods or services. Client will maintain sufficient capital to provide for the delivery of goods or
services at the agreed upon future date, independent of any credit or proceeds resulting from Card transactions taken in connection with future
delivery transactions.
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10. E-COMMERCE TRANSACTIONS If applicable, Client may process e-commerce transactions only if the transactions have been encrypted by a third-party vendor acceptable to
Active. Client is liable for all chargebacks and losses related to e-commerce transactions, whether or not encrypted. Encryption is not a
guarantee of payment and will not waive any provision of this Agreement or otherwise validate a fraudulent transaction.
For goods to be shipped on e-commerce transactions, Client may obtain authorization up to seven calendar days prior to the shipment
date. Client need not obtain a second authorization if the Card transaction amount is within 15% of the authorized amount, provided that the
additional amount represents shipping costs. Client’s website must contain all of the following information: (i) complete description of the goods
or services offered, (ii) return and refund policies, (iii) customer service contact, including email address or telephone number, (iv) transaction currency (such as U.S. or Canadian dollars) (v) any export or legal restrictions, if known, and (vi) delivery policy.
11. PROHIBITED PRACTICES
Client may not split transactions into multiple Card transactions except where: (a) partial payment is entered on the transaction record and the
balance of the transaction amount is paid in cash or by check at the time of transaction; or, (b) the amount represents an advance deposit in a
Card transaction completed in accordance with this Agreement and the Rules. Client will not use the Services to accept amounts representing
the refinancing of an existing uncollectible obligation, debt, or dishonored check of a Cardholder. Client may not process transactions for, receive payments on behalf of, or (unless required by Law) redirect payments to a third party. Client agrees that Active may, within our sole
discretion, suspend the Services for a reasonable period of time required to investigate suspicious or unusual activity. Active shall have no
liability for any losses Client may attribute to any suspension of funds disbursement. Client will not allow the Service to be used for high risk
transactions or transactions for illegal activities. If Client engages in the behavior for illegal activities, you hereby acknowledge liability to Active
and all damages suffered by Active, without limitation despite other language in this Agreement to the contrary. Without limiting the foregoing,
Client agree to reimburse Active for any and all costs, expenses, and fines levied on Active by the Card Brands, our sponsor banks, payment
processors, or service providers as a result of Client’s use of the Services in violation of this Agreement. Active may reverse Card transactions
we deem to violate this Agreement, the Laws, Rules, or Policies, and Client agrees to reimburse Active for any such reversal. Client agrees that Active is entitled to invoke the security interest we have, as set forth in this Agreement and all other rights we have, pursuant to a violation of
this Agreement, in order to collect the fines levied against Client, or other losses incurred by Active, as set forth in this Agreement.
12. FRAUDULENT TRANSACTIONS
Client will not present for processing or credit, directly or indirectly, any transaction not originated as a result of a Card transaction directly
between Client and a Cardholder or any transaction Client knows or should know to be fraudulent or not authorized by the Cardholder. Client
will refer perpetrators of fraudulent transactions, in our discretion, to the appropriate law enforcement agency.
13. DATA SECURITY REQUIREMENTS
Client must keep all systems and media containing account, Cardholder or transaction information (physical or electronic, including but not
limited to account numbers, card imprints, and terminal identification numbers) secure and prevent access by or disclosure to anyone other than
Client’s authorized personnel. Client must destroy, in a manner that will render the data unreadable, all such media that Client no longer deems
necessary or appropriate to store (except for sales drafts maintained in accordance with this Agreement, applicable law, or Rules). Merchant
must also ensure proper destruction of Cardholder, transaction or system information (physical or electronic, including but not limited to account numbers, card imprints, and terminal identification numbers) prior to selling, storing, or disposing of any terminal.
14. MERCHANT SERVICES AGREEMENT
Active may require that you enter into a Merchant Services Agreement if certain Card processing volume thresholds are met by Client’s use of
the Services. Such threshold is met when Card processing reaches over 1,000,000.00 USD in any one-year period. Active will notify you if this
occurs. Client’s continued use of the Services after we notify you will constitute your agreement to the Merchant Services Agreement.
15. CUSTOMER CONTACT
Client authorizes Active to contact Client’s customers or their bank if Active determines that such contact is necessary to find out information
about any payment transaction between Client and the customer. Also, Client will provide to Active upon our request, contact information for
your customers as deemed necessary and reasonable by Active.
16. REFUND CREDITS Client will issue a credit memorandum, instead of making a cash advance, a disbursement, or a refund on any Card transaction. Active’s
sponsor bank will debit from the amounts owing you under your Active account for the total face amount of each credit memorandum
submitted. Client will not submit a credit relating to any Card transaction not originally submitted to Active, nor will Client submit a credit that
exceeds the amount of the original Card transaction. Client will, within the time period specified by applicable law, provide Active with a credit
memorandum or credit statement for every return of goods or forgiveness of debt for services that were the subject of a Card transaction.
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17. USE OF TRADEMARKS
Client’s use of Card Brand marks will fully comply with the Rules. Client’s use of Active’s marks must comply with our instructions. Client’s right to use Active marks and the Card Brand marks will cease upon termination of this Agreement. The Card Brands are the sole and exclusive
owners of their marks. Active is the sole and exclusive owner of all Active marks. Client agrees to not contest the ownership of the marks for
any reason. Active may at any time, immediately and without advance notice, prohibit the use any of the trademarks for any reason.
18. INFORMATION SECURITY
Client must keep all systems and media containing account, Cardholder, or transaction information (physical or electronic, including but not
limited to account numbers, and card imprints,) in a secure manner, to prevent access by or disclosure to anyone other than your authorized personnel. Client must destroy in a manner that will render the data unreadable all such media that you no longer deem necessary or
appropriate to store (except for receipts maintained in accordance with this Agreement, Laws, Rules, and Policies). Further, Client must take all
steps reasonably necessary to ensure Cardholder information is not disclosed or otherwise misused. Client may not retain or store magnetic
stripe or CVV2, CVC2, or CID data after authorization. Client must notify Active in the event Client uses any agent that will have access to
Cardholder data. Card Brand regulations mandate that all agents that access, store, transmit, or process Cardholder data must be registered
and comply with the established data security standards of PCI DSS and PA-DSS.
If Client stores Cardholder account numbers, expiration dates, and other personal Cardholder data in a database, Client must follow Card Brand guidelines on securing such data. Client must, at all times, remain in compliance with the PCI DSS and PA-DSS, as applicable, and as
mandated by the Card Brands and Active’s sponsor bank.
In the event of breach of, intrusion of, compromise of, or otherwise unauthorized access to Cardholder account information which is stored and
in the possession of Client or Client’s agents, Client must immediately notify Active and provide us with information relating and pertaining to the
type, nature, and extent of Cardholder account information which has been compromised. Further, Client must cooperate with Active regarding
reasonable requests for information and details regarding the compromise of Cardholder account information. Client will make all reasonable,
good faith efforts to remedy and address the cause of said breach, intrusion, compromise, or otherwise unauthorized access to Cardholder account information. Client shall maintain industry "best practices" regarding continuity procedures and systems to ensure security of
Cardholder account information in the event of a disruption, disaster, or failure of Client’s respective data storage system and/or facility.
19. THIRD PARTY SERVICE PROVIDERS
If Client uses special services or software provided by a third party to assist in processing transactions, including authorizations and
settlements, or accounting functions, Client is responsible for ensuring compliance with the requirements of any third party. Active is not
responsible for any transaction until the point in time Active receives data about the transaction. Active has relationships with the Card Brands to provide the Services. The Card Brands have the right to enforce any provision of the Card Brand Rules and to prohibit Client and Active from
engaging in any conduct that the Card Brands deem could injure or could create a risk of injury to the Card Brands, including injury to
reputation, or that could adversely affect the integrity of the interchange system, the Card Brands’ Confidential Information as defined in the
Rules, or both. Client will not take any action that could interfere with or prevent the exercise of this right by the Card Brands.
20. ADDITIONAL REPRESENTATIONS AND WARRANTIES
In addition to all other warranties provided under this agreement, Client represents and warrants that (a) Client has never been placed on the MasterCard MATCH system or the Combined Terminated Merchant File, and if so, Client has disclosed this to Active and (b) all transactions
are bona fide and no transaction involves the use of a Card for any purpose other than the purchase of goods or services from Client and does
not involve a Cardholder obtaining cash from Client unless allowed by the Rules and agreed in writing with Active.
21. ADDITIONAL INDEMNIFICATION AND LIMITATION OF LIABILITY
In addition to any other indemnity obligations provided under this Agreement, Client also agrees to indemnify and hold harmless Active’s
sponsor bank for acting in accordance with any instruction from Client or Active regarding Client’s use of the Services. Further, Client shall indemnify and hold harmless Active’s sponsor banks, the Card Brands, and Active, and all employees, officers, directors, shareholders and
agents of Active or Active’s sponsor bank from any and all loss, cost, expense, claim, damage, and liability (including attorneys' fees and costs)
paid or incurred by any one or more of them, arising from, caused by, or attributable to, any of the following: (1) any Card transaction processed
under this Agreement, (2) any breach by Client of this Agreement and those related to any bankruptcy proceeding; (3) willful misconduct, fraud,
intentional tort or negligence by Client or that of Client’s employees, agents or representatives; (4) theft, embezzlement, or unauthorized use; or
(5) action by Active or Active’s sponsor bank exercising any right under this Agreement, Laws, Rules, or Policies.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ACTIVE’S SPONSOR BANK’S TOTAL AGGREGATE LIABILITY FOR ALL MATTERS
ARISING FROM OR RELATED TO THIS AGREEMENT IS LIMITED TO $10,000 U.S. DOLLARS.
22. IRS REPORTING
To comply with IRS 1099-K reporting requirements, Active may be required to file a form 1099-K with the U.S. Internal Revenue Service
(IRS). Active may collect 28% federal backup withholding upon transaction settlement, on behalf of the IRS, from Client if Client does not
supply your legal name, SSN or EIN, or if Client fails to respond to a request from Active to verify the same. All withholdings will be remitted to
DocuSign Envelope ID: 69464E0A-55BF-4DCE-8CD0-115FF04160FB
the IRS as required by law. To avoid potential backup withholdings, Client should notify Active any time there is a change to your SSN, EIN,
legal name, or business address, and ensure you respond to any request for verification and record update from Active .
23. RIGHTS AND REMEDIES CUMULATIVE
The rights conferred upon Active , Active’s sponsor banks, and the Card Brands in this Agreement are not intended to be exclusive of each other
or of any other rights and remedies Active has under this Agreement, at law, or in equity. Rather, each and every right Active has at law or in
equity will be cumulative and concurrent and in addition to every other right.
24. AMENDMENTS This Agreement and the Policies referenced and incorporated in this Agreement may be amended, modified, or revised at any time without
notice. While Active may notify Client as the Agreement or Policies are modified, it is Client’s sole responsibility to review and maintain
familiarity with the Agreement and Policies, including any changes that may be made to these documents, respectively, from time to time
thereto, and Client is bound by any changes. The amendments to this Agreement and/or Policies referenced herein will become effective and
binding upon Client immediately. In the event Client does not agree to the aforementioned amendments and do not wish to be bound the terms
and conditions thereto, Client shall provide written notice to Active. Notwithstanding the foregoing, changes to fees authorized by this
Agreement will be effective upon the giving of notice to Client and any fee increase, change in Rules, or other requirement imposed by Card
Brands may be passed on to Client and will be effective upon the giving of notice to Client.
25. AGENCY RELATIONSHIP
Client authorizes Active with respect to the Services to act as Client’s agent for the limited purposes of holding, receiving, and disbursing funds
on Client’s behalf. Client’s authorization permits Active to generate an electronic funds transfer to process each payment transaction. This
authorization will continue until this Agreement is terminated. Client agrees that Active’s receipt of transaction proceeds satisfies your
customers’ obligations to Client. Active will remit funds actually received by Active on Client’s behalf, less amounts owed to Active, subject to
any chargebacks or reserve withheld or applied as per this agreement.
26. SECURITY INTEREST, RESERVE, RECOUPMENT, PERSONAL GUARANTEE
Because Active is financially responsible for action taken by you using the Services, we require certain protective measures as outlined below.
This Agreement will constitute a security agreement under the Uniform Commercial Code. You grant to us a security interest in and lien upon:
(a) all funds representing amounts owing you under this Agreement at any time in the Member Operating Account, regardless of the source of
such funds; (b) all funds at any time in the Reserve Account (as defined below), regardless of the source of such funds; (c) present and future Card transactions; and, (d) any amount which may be due to you under this Agreement, including, without limitation all rights to receive any
payments or credits under this Agreement (collectively, the "Secured Assets"). You agree to provide other security to us upon request to secure
your obligations under this Agreement. These security interests and liens will secure all of your obligations under this Agreement and any other
agreements now existing or later entered into between you us including, but not limited to, your obligation to pay any amounts due and owing to
us. We may exercise this security interest without notice or demand of any kind by making an immediate withdrawal or freezing of your
Secured Assets. Upon our request, you will execute one or more financing statements or other documents to evidence this security
interest. You represent and warrant that no other person or entity has a security interest in the Secured Assets. With respect to such security
interests and liens, we will have all rights afforded under the Uniform Commercial Code and any other applicable law and in equity. You must obtain from us written consent prior to granting a security interest of any kind in the Secured Assets to a third party. You agree that this is a
contract of recoupment. As such, we are not required to file a motion for relief from a bankruptcy action automatic stay to realize on any of the
Secured Assets. Nevertheless, you agree not to contest or object to any motion for relief from the automatic stay filed by us. You authorize us
and appoint us your attorney in fact to sign your name to any financing statement used for the perfection of any security interest or lien granted
hereunder.
For the purpose of providing a deposit and a source of funds to pay us for amounts owed by you, you shall deposit to an account maintained by
us titled to our sponsor banks, initially or at any time in the future, as requested in good faith by us, sums sufficient to satisfy your current and/or future obligations as determined by us (“Reserve Account”). Funds, if any, in the Reserve Account shall remain in the Reserve Account until
each of the following has occurred: (a) this Agreement has been terminated; and, (b) you have paid us in full all amounts owing or that could
ever be owed under this Agreement, including, without limitation, all outstanding or uncollected amounts and potential chargebacks. Our
sponsor banks shall have sole control of the Reserve Account. Our sponsor banks or we may, at any time, require that the amount on deposit
in the Reserve Account be increased and shall have sole discretion as to the amount from time to time. In no event shall you be entitled to a
return of any sums remaining in the Reserve Account for 270 days following the effective date of termination of this Agreement. We have the
right to debit your funds in the Member Operating Account to establish, increase, or maintain funds in the Reserve Account. We may deposit
into the Reserve Account funds we would otherwise be obligated to pay you, for the purpose of establishing, increasing, or maintaining the Reserve Account in accordance with this section, if we determine such action is reasonably necessary to protect our interests. You understand
and agree that if you are required to establish a Reserve Account, you have an obligation under this Agreement to maintain at all times a
balance in the Reserve Account sufficient to protect us against losses resulting from transactions initiated by you. Active may, without notice to
Client, apply funds deposited in your Reserve Account against any outstanding amounts you owe us under this Agreement or any other
agreement between Client and Active. Also, Active may debit your Reserve Account to exercise our rights under this Agreement to collect any
amounts due to us including, without limitation, rights of set-off and recoupment.
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Active has the right of recoupment and set-off. This means that Active may offset any outstanding or uncollected amounts owed to us from: (a)
any amounts owed to Client and (b) any other amounts Active may owe Client under this Agreement or any other agreement. Client
acknowledges that in the event of a bankruptcy proceeding, in order for you to provide adequate protection under Bankruptcy Code § 362 to
Active, Client must create or maintain the Reserve Account and Active will have the right to offset against the Reserve Account for any and all
obligations which Client may owe to Active, without regard to whether the obligations relate to Card transactions initiated or created before or
after the filing of the bankruptcy petition.
27. DESIGNATION OF DEPOSITORY
The financial institution set forth in Client’s application or order form is designated by Client as a depository institution ("Depository") for its card
indebtedness hereunder. Such financial institution must be a member of an Automated Clearing House Association. Client authorizes payment
for indebtedness purchased hereunder to be made by paying Depository therefore with instructions to credit Client’s account(s) with Depository
(the “Account(s)”). Active and/or its sponsor banks may charge the Account(s) for any amount due under this Agreement. Active must approve in
writing any proposed changes to the Account(s) or to the Depository. Client represents and warrants that: (a) the Client Account(s) will always be
in the same legal and DBA (if applicable) name as Client’s name on Client’s application or order form; (b) Client will own and maintain control of the Account(s) and will keep such Account(s) open at all times during the term and as long as any reserve account is in effect; and, (c) the
Account(s) will not be associated with any merchant processing activity that is illegal or prohibited by the Rules or Law, including without limitation
merchant processing activity associated with other accounts and/or processors. Client hereby authorizes Depository to release any and all account
information to Active as Active may request without any further authorization, approval, or notice from or to Client.
28. DISCOVER PROGRAM MARKS
Merchant is hereby granted a limited non-exclusive, non-transferable license to use Discover brands, emblems, trademarks, and/or logos that identify Discover cards (“Discover Program Marks”). Merchant is prohibited from using the Discover Program Marks other than as expressly
authorized in writing by Global Direct. Merchant shall not use the Discover Program Marks other than to display decals, signage, advertising and
other forms depicting the Discover Program Marks that are provided to Merchant by Global Direct pursuant to this Card Services Agreement or
otherwise approved in advance in writing by Global Direct. Merchant may use the Discover Program Marks only to promote the services covered
by the Discover Program Marks by using them on decals, indoor and outdoor signs, advertising materials and marketing materials; provided that
all such uses by Merchant must be approved in advance by Global Direct in writing. Merchant shall not use the Discover Program Marks in such
a way that customers could believe that the products or services offered by Merchant are sponsored or guaranteed by the owners of the Discover
Program Marks. Merchant recognizes that it has no ownership rights in the Discover Program Marks and shall not assign to any third party any of the rights to use the Discover Program Marks.
29. TERMINATION
29 (a) Termination without cause. Active or its sponsor bank may terminate this Agreement without cause upon 30 days advance written notice
to Client.
29 (b) Termination for cause. Active or its sponsor bank may terminate this Agreement in its sole discretion, effective immediately, upon written
notice to Client if Active or its sponsor bank reasonably determines that any of the following conditions exist:
(i) Client has violated any provision of this Agreement.
(ii) There is a material adverse change in Client’s financial condition, material change in Client’s processing activity, processing activity
inconsistent with the Merchant Application, or Active or it’s sponsor bank determines in its sole discretion that Client’s processing
activity could result in a loss to Active or Active’s sponsor bank.
Client
Active NetWork LLC
Signature: Signature:
Name: Name:
Title: Title:
Date: Date:
DocuSign Envelope ID: 69464E0A-55BF-4DCE-8CD0-115FF04160FB
Revised 4.13.23 Page 11 of 17
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated
below.
CONTRACTOR:
By: _______________________________________By: _________________________________________
Signature Signature
(2nd signature required for Corporations)
Date:Date:
CITY OF PALM SPRINGS:
APPROVED BY CITY COUNCIL:
Date: __N/a____ Item No.
APPROVED AS TO FORM: ATTEST:
By: ___________________________ By: _______________________________
City Attorney City Clerk
APPROVED:
By: _______________________________ Date:
City Manager – over $50,000
Deputy/Assistant City Manager – up to $50,000
Director – up to $25,000
Manager – up to $5,000
N/a
DocuSign Envelope ID: 69464E0A-55BF-4DCE-8CD0-115FF04160FB
11/2/2023 11/3/2023
11/6/2023
5850 Granite Parkway, Suite 1200
Plano, TX 75024
T.469.291.0300
www.ACTIVEnetwork.com
October 25, 2023
City of Palm Springs
ATTN: Larry Klingaman
Director of Information Technology
401 South Pavilion Way, Palm Springs, 92262
Dear Larry,
This letter confirms that Active Network, LLC (“Active”) is the sole source vendor for Active’s software product,
ACTIVENET. The ACTIVENET product is only available through Active, and Active is the owner or authorized
licensor of all of the proprietary rights contained in the ACTIVENET product. Active does not market
ACTIVENET through any other companies, distribution channels, or consultants.
If you have any questions or require additional information, please feel free to contact me at any time at 704-
615-8781.
Best regards,
Kevin Farmer
Vice President, Sales
DocuSign Envelope ID: F8E7F3B4-B9DA-491C-86BF-E1A887AC231CDocuSign Envelope ID: 69464E0A-55BF-4DCE-8CD0-115FF04160FB