HomeMy WebLinkAboutContract 59135DocuSign Envelope ID: F431F7C1-3589-480B-AFEF-C13FF9C3CBA9
Contract # 00127820
CSC No. 59135
PRODUCT AND SERVICES AGREEMENT
CLIENT INFORMATION
ORGANIZATION FULL
City of Forth Worth
ADDRESS:
Parks and Community Services
LEGAL NAME:
4200 S.
Freeway, STE 2200
Fort Worth, TX
CONTACT NAME:
Sheri Endsley
TELEPHONE:
817-392-8200
EMAIL:
sheri.endsley@fortworthtexas.gov
OVERVIEW OF AGREEMENT
This Agreement consists of this cover page, the Schedule, the General Terms, and the following Product Attachments:
Recreation Management Product Attachment
Addendum
Exhibit 1, Network Access Agreement
Exhibit 2, Electronic Communications Resource Use Policy
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
DocuSigned by:
Signature:
Valerie Washingto�28, 2023 13:59 CDT)
Signature:
tt *
042FAC5901474C9...
Name:
Valerie Washington
Name:
Randy Skemp
Title:
Assistant City Manager
Title:
Vice President, Sales
Date:
Mar 28, 2023
Date:
3/13/2023 1 10:13 AM CDT
Active Network, LLC
5850 Granite Parkway, Suite 1200, Plano, TX 75024
Telephone: (469) 291-0300
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
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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 Products, Client's use of the Products, 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 and the provision
of 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).
1A.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 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 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 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
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"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 SaaS and
Services 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, 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, and/or (b) visit Client's premises during
Client's normal business hours to review Client's sales tax payments.
3. LIMITED RIGHTS AND OWNERSHIP; INDEMNIFICATION.
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
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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; 0) 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; (1) 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 SaaS 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 SaaS; (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 Services or SaaS except for the express purpose of using the SaaS for
their intended use; (q) not engage in any activity that interferes with or disrupts the SaaS; and (r) not use the SaaS
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.
3A.Active Indemnification. Active agrees to defend, settle, and pay damages (including reasonable attorneys'
fees) relating to any third party claim, demand, cause of action, or proceedings (whether threatened, asserted, or
filed) ("Claims") 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.
3.5.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
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breach of any obligation owed to the Disclosing Parry; (iii) is received from a third party without breach of any
obligation owed to the Disclosing Parry; or (iv) was independently developed by the Receiving Parry without use
of or reference to the Disclosing Parry's Confidential Information, as evidence by prior documentation or tangible
embodiments of such information
3.6.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 Parry 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 Parry 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.
3.7.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 parry,
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, TITLE, OR NON -
INFRINGEMENT; (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 SERVICES, LOST DATA, LOSS OF USE OF
INFORMATION OR SERVICES, 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
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GIVING RISE TO SUCH CLAIMS DURING THE 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 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.
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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 for each Product or Service offered under this Agreement will be as set forth in the applicable
Product Attachment. This Agreement will continue until either parry 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 parry 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 30 days of being notified in writing of such breach, except for breach of Section 2 of
these General Terms which will have a 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 30 days after they
are instituted; or the insolvency or making of an assignment for the benefit of creditors or the admittance by either
parry 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 of these General Terms.
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. 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.
5.3.Suspension. Active will be entitled to suspend any or all Services or deactivate Client's account, including
suspending its performance and obligation to remit payments hereunder, upon 10 days' written notice to Client
in the event Active reasonably believes that Client is in breach of this Agreement, Client's use of the Services or
SaaS 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 sole
discretion, may terminate Client's password, accounts (or any part thereof), and/or Client's right to use the
Services, and remove and discard any and all of Client's content within the Services, at any time for any reason
or no reason, including, without limitation, for lack of use, failure to timely pay any fees or other monies due
Active, or if Active believes Client has violated or acted inconsistently with the letter or sprit of this Agreement.
Client agrees that any termination of its use of the Services may be effected without prior 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 Services. Further, Client
agrees that Active shall not be liable to Client or any third party for any termination of use of or access to the
Services. All provisions of this Agreement that by their nature should survive termination of Client's right to use
the Services shall survive (including, without limitation, all limitations of liability, releases, indemnification
obligations, disclaimers of warranties and intellectual property protections and licenses).
5.4. Active will, at Client's request, deliver to Client a file containing Client Data for download in a commercially -
reasonable standard format, such as comma separated value (.csv) or extensible markup language (.xml), along
with attachments in their native format as stored by Active, within a reasonable time upon Active's receipt of
Client's written notice requesting the same made not more than thirty (30) days after the termination of this
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Agreement for any reason. Upon conclusion of thirty (30) days, inclusive, after termination of this Agreement for
any reason, Active will have no obligation to maintain or provide such Client Data to Client and Active shall
thereafter delete all Client Data in Active systems or otherwise in Active's possession or under Active's control.
If requested by Client, Active will certify that it has returned or destroyed all copies of the applicable Client Data
using commercially reasonable measures and acknowledges that its rights to use the same are relinquished.
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
5 days of the public announcement or close of the transaction, whichever occurs first. Within the 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 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.
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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 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
unenforceable 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, 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 parry, 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 Parry 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 and Venue. Except as set forth below, this Agreement will be governed by the laws
of the State of Texas, 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 The governing law is: The courts having exclusive jurisdiction are:
business is in:
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Canada
Province of British
Columbia
Province of British Columbia
United Kingdom, Ireland,
Germany, France, or
Austria
England
England
Singapore
Singapore
Singapore
New Zealand
England
En land
Hong Kong
Hong Kong
Hon Kong
Australia
New South Wales
Sydney, New South Wales
Switzerland
England
England
Denmark
England
England
Netherlands
England
England
Spain
England
England
Sweden
England
England
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
Parry 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 parry, 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.
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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.
6.18 Upon consent by Active, this Agreement may be used for permitted cooperative procurement by any
municipal body, entity or agency located in the state of Texas. If so authorized, this Agreement may be extended
to such other entities indicated above for the procurement of similar products and/or services provided to Client
herein and at the fees in accordance with this Agreement unless separately negotiated between such other entities
and Active. Further related entities participating in a cooperative procurement process shall place their own orders
directly with Active and will fully and independently administer their use of this Agreement to include such
contractual obligations as those entities and Active deem appropriate without direct administration from the
original Client. This offer expires on October 1, 2022, at the rates detailed in Schedule 00123992.
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.
"Client Data" means information obtained from Client that is not generally available to the public and which is
marked "Confidential," including business, administrative and financial data, Intellectual Property and personnel
data.
"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 SaaS or Services, as updated by Active from time
to time.
"Effective Date" means the date of last signature on page one of this Agreement.
"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
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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.
"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.
"Security Breach" means (i) any unauthorized use of, loss of, access to or disclosure of, Client Data; provided
that an incidental disclosure of or incidental access to Client Data by Active or its authorized parties, where no
reasonable suspicion exists that such disclosure or access involves theft, or is fraudulent, criminal or malicious in
nature, shall not be considered a "Security Breach" hereunder.
"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.
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"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.
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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 Services related to events, camps, licenses, classes, tickets, contests,
permits, facility/equipment use, transactions, sales, memberships, reservations, donations, and/or activities
(together, "Events"), including without limitation access to its SaaS. 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
Services and SaaS. SaaS 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 SaaS 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 Services that Active provides.
2.2. Client will make reasonable efforts to promote and encourage the use and availability of the SaaS 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 SaaS and Services 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 SaaS 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 SaaS provided to Client
hereunder.
2.3. Active may present commerce offers to users who register for, sign up, or otherwise use the SaaS 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 SaaS 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
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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 SaaS and Services 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 SaaS or Services 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 SaaS that are intended for
that purpose; or (b) credit card information other than in pre -defined fields within the SaaS 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. 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 SaaS 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.
4.4. In the event Client is entering into this Product Attachment and using the Services and/or SaaS for the benefit
of a third -party Event or organization ("Third Party Recipient"), Client agrees that Active can remit amounts
directly to the Third Parry Recipient identified by Client. In addition, Client will cause each Third Parry 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 Parry 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.
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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.
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 third anniversary of the Effective Date (the "Initial Term"). This Product
Attachment shall renew automatically following the Initial Term for up to two (2) subsequent renewal terms
thereafter of one (1) year (the "Renewal Term(s)", and, together with the Initial Term, the "Term") unless either
Parry delivers written notice to the other Parry at least six (6) months prior to the expiration of the then -current
Term of its intent to terminate this Product Attachment upon the completion of the Initial Term or any Renewal
Term. Unless otherwise set forth in the applicable Schedule, to the extent that Client enters into a Schedule for
additional Services and/or SaaS that are related to or interoperable with Services or SaaS 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
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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.
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ADDENDUM TO PRODUCT AND SERVICES AGREEMENT
BETWEEN
THE CITY OF FORT WO TH
AND
ACTIVE NETWO K, LLC
This Addendum to the Product and Services Agreement ("Addendum") is entered into by
and between Active Network, LLC ("Active") and the City of Fort Worth ("Client"). Client and
Active are also individually referenced herein as a "parry", and collectively as the "parties." The
terms of the Agreement will apply to this Addendum. Capitalized terms used but not defined herein
shall have the meanings ascribed to such terms in the Agreement.
The parties hereby agree that the provisions in this Addendum below shall be applicable
to the Agreement as follows:
1. Attorneys' Fees. To the extent the attached Agreement requires City to pay
attorneys' fees for any action contemplated or taken, City objects to these terms and any such terms
are hereby deleted from the Agreement and shall have no force or effect.
2. Sovereign Immunity. Nothing herein constitutes a waiver of Client's sovereign
immunity. To the extent the Agreement requires Client to waive its rights or immunities as a
government entity; such provisions are hereby deleted and shall have no force or effect.
3. Security Breach. In the event of a Security Breach involving Active's systems and
Client Data, Active will notify Client without undue delay following its internal confirmation that
such data has been involved in a Security Breach, provided that such notification will not conflict
with or compromise Active's efforts to (i) cooperate with law enforcement, (ii) protect Client Data
or confidential information belonging to Active or any third party, or (iii) remediate and/or mitigate
the Security Breach and further provided that Active will notify Client at the same time Active
notifies other similarly situated and similarly impacted customers.
4. Insurance. Active agrees that insurance coverage provided to Client by Active is
sufficient for purposes of the Agreement only.
5. Public Information. Client is a government entity under the laws of the State of
Texas and all documents held or maintained by Client are subject to disclosure under the Texas
Public Information Act. To the extent the Agreement requires that Client maintain records in
violation of the Act, Client hereby objects to such provisions and such provisions are hereby
deleted from the Agreement and shall have no force or effect. In the event there is a request for
information marked Confidential or Proprietary, Client shall promptly notify Active. It will be the
responsibility of Active to submit reasons objecting to disclosure. A determination on whether
such reasons are sufficient will not be decided by Client, but by the Office of the Attorney General
of the State of Texas or by a court of competent jurisdiction.
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DocuSign Envelope ID: F431 F7C1-3589-480B-AFEF-C13FF9C3CBA9
Contract # 00127820
6. Immigration Nationality Act. Active shall verify the identity and employment
eligibility of its employees who perform work under the Agreement, including completing the
Employment Eligibility Verification Form (I-9). Active shall adhere to all Federal and State laws
as well as establish appropriate procedures and controls so that no services will be performed by
any Active employee who is not legally eligible to perform such services.
7. No Boycott of Israel. If Active has fewer than 10 employees or the Agreement is
for less than $100,000, this section does not apply. Active acknowledges that in accordance with
Chapter 2270 of the Texas Government Code, Client is prohibited from entering into a contract
with a company for goods or services unless the contract contains a written verification from the
company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the
contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to those
terms in Section 808.001 of the Texas Government Code. By signing this Agreement, Active
certifies that Active's signature provides written verification to City that Active: (1) does not
boycott Israel; and (2) will not boycott Israel during the term of the Agreement.
8. Right to Audit. During the Term and until the expiration of three (3) years after
final payment under the Agreement, Active agrees that Client shall, upon ten (10) days' notice to
Active and no more than once per calendar year, have access to and the right to examine financial
records and supporting documentation relating to Active's billings or amounts payable by Client
under the Agreement ("Audit"). Active agrees that Client shall have access during normal working
hours to all necessary Active facilities and shall be provided adequate and appropriate workspace
in order to conduct audits in compliance with the provisions of this section. If Client exercises its
right to Audit Active, Client shall be responsible for all costs associated with said Audit.
9. Prohibition on Boycotting_ Energy Companies. Active acknowledges that in
accordance with Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg.,
R.S., S.B. 13, § 2, the Client is prohibited from entering into a contract for goods or services that
has a value of $100,000 or more that is to be paid wholly or partly from public funds of the Client
with a company with 10 or more full-time employees unless the contract contains a written
verification from the company that it: (1) does not boycott energy companies; and (2) will not
boycott energy companies during the term of the contract. The terms "boycott energy company"
and "company" have the meaning ascribed to those terms by Chapter 2274 of the Texas
Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2. To the extent that Chapter
2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Active
certifies that Contractor's signature provides written verification to the Client that Contractor: (1)
does not boycott energy companies; and (2) will not boycott energy companies during the term of
this Agreement.
10. Prohibition on Discrimination Against Firearm and Ammunition Industries. Active
acknowledges that except as otherwise provided by Chapter 2274 of the Texas Government Code,
as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1, the Client is prohibited from entering into a
contract for goods or services that has a value of $100,000 or more that is to be paid wholly or
partly from public funds of the Client with a company with 10 or more full-time employees unless
the contract contains a written verification from the company that it: (1) does not have a practice,
Page 19 of 25
DocuSign Envelope ID: F431 F7C1-3589-480B-AFEF-C13FF9C3CBA9
Contract # 00127820
policy, guidance, or directive that discriminates against a firearm entity or firearm trade
association; and (2) will not discriminate during the term of the contract against a firearm entity or
firearm trade association. The terms "discriminate," "firearm entity" and "firearm trade
association" have the meaning ascribed to those terms by Chapter 2274 of the Texas Government
Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1. To the extent that Chapter 2274 of the
Government Code is applicable to this Agreement, by signing this Agreement, Active certifies that
Contractor's signature provides written verification to the Client that Contractor: (1) does not have
a practice, policy, guidance, or directive that discriminates against a firearm entity or firearm trade
association; and (2) will not discriminate against a firearm entity or firearm trade association
during the term of this Agreement.
11. Insurance.
11.1 Active shall carry the following insurance coverage with a company that is
licensed to do business in Texas or otherwise approved by the Client:
11.1.1 Commercial General Liability:
11.1.1.1 Combined limit of not less than $2,000,000 per
occurrence; $4,000,000 aggregate; or
11.1.1.2 Combined limit of not less than $1,000,000 per
occurrence; $2,000,000 aggregate and Umbrella
Coverage in the amount of $4,000,000. Umbrella policy
shall contain a follow -form provision and shall include
coverage for personal and advertising injury.
11.1.1.3 Defense costs shall be outside the limits of liability.
11.1.2 Statutory Workers' Compensation and Employers' Liability
Insurance requirements per the amount required by statute.
11.1.3 Technology Liability (Errors & Omissions)
11.1.3.1 Combined limit of not less than $2,000,000 per claim;
$4,000,000 aggregate.
11.1.3.2 Coverage shall include, but not be limited to, the
following:
11.1.3.2.1 Failure to prevent unauthorized access;
11.1.3.2.2 Unauthorized disclosure of information;
11.1.3.2.3 Implantation of malicious code or computer
virus;
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DocuSign Envelope ID: F431 F7C1-3589-480B-AFEF-C13FF9C3CBA9
Contract # 00127820
11.1.3.2.4 Fraud, Dishonest or Intentional Acts with
final adjudication language;
11.1.3.2.5 Technology coverage may be provided
through an endorsement to the Commercial
General Liability (CGL) policy, a separate
policy specific to Technology E&O, or an
umbrella policy that picks up coverage after
primary coverage is exhausted. Either is
acceptable if coverage meets all other
requirements. Any deductible will be the
sole responsibility of Active. Coverage shall
be claims -made, with a retroactive or prior
acts date that is on or before the effective date
of this Agreement. Coverage shall be
maintained for the duration of the contractual
agreement and for two (2) years following
completion of services provided. An annual
certificate of insurance shall be submitted to
the Client to evidence coverage; and
11.2 General Insurance Requirements:
11.2.1 All applicable policies except Technology Errors & Omissions shall
name the Client as an additional insured thereon, as its interests may
appear. The term Client shall include its employees, officers,
officials, agents, and volunteers in respect to the contracted services.
11.2.2 A minimum of Thirty (30) days' notice of cancellation or reduction
in limits of coverage shall be provided to the Client. Ten (10) days'
notice shall be acceptable in the event of non-payment of
premium. Notice shall be sent to the Risk Manager, City of Fort
Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies
to the City Attorney at the same address.
11.2.3 The insurers for all policies must be licensed and/or approved to do
business in the State of Texas. All insurers must have a minimum
rating of A- VII in the current A.M. Best Key Rating Guide, or have
reasonably equivalent financial strength and solvency to the
satisfaction of Risk Management. If the rating is below that
required, written approval of Risk Management is required.
11.2.4 Any failure on the part of the Client to request required insurance
documentation shall not constitute a waiver of the insurance
requirement.
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DocuSign Envelope ID: F431 F7C1-3589-480B-AFEF-C13FF9C3CBA9
Contract # 00127820
11.2.5 Certificates of Insurance evidencing that Active has obtained all
required insurance shall be delivered to the Client's Risk
Management Division following execution of this Agreement and
upon written request by Client.
(signature page follows)
Page 22 of 25
DocuSign Envelope ID: F431 F7C1-3589-480B-AFEF-C13FF9C3CBA9
Contract # 00127820
[Executed effective as of the date signed by the Assistant City Manager below.] / [ACCEPTED
AND AGREED:]
City:
By: Valerie Washington (Mar 28, 2023 13:59 CDT)
Name: Valerie Washington
Title: Assistant City Manager
Date: Mar 28, 2023
Active Network LLC:
By:
FDocuSignedby:
oun S�uMp
Name:
PA�Acs'ompg
Title:
vice President, Sales
Date:
3/13/2023 1 10:13 AM CDT
CITY OF FORT WORTH INTERNAL ROUTING PROCESS:
Approval Recommended:
By:
Name: Kevin Gunn
Title: Director, IT Solutions Department
Approved as to Form and Legality:
By:
Name: Taylor Paris
Title: Assistant City Attorney
Contract Authorization:
M&C: N/A
Contract Compliance Manager:
By signing I acknowledge that I am the
person responsible for the monitoring and
administration of this contract, including
ensuring all performance and reporting
requirements.
By: Steven Vandever(Mar 21, 202311:24 CDT)
Name: Steven Vandever
Title: Sr. IT Solutions Manager
City Secretary:
By:
Name
Title:
Jannette S. Goodall
City Secretary
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Page 23 of 25
DocuSign Envelope ID: F431 F7C1-3589-48OB-AFEF-C13FF9C3CBA9
Contract # 00127820
ACT E
networrc..
Company Address 6860 Granite Parkway, Suite 1200
Plano, TX.76024
Us
Prepared By Molly Mueller
Cpportunity Owner Chad Corsentino
Owner Email
chad.corsentino[mactivenetwork.com
Bill To Name
City of Fort Worth
Bill To Contact
Sheri Endsley
Bill To Address
Parks.and Community Services4200 S.
Freeway, STE 2200
Fort Worth, TX76116 United States
ACTIVE Captivate
-Tier SaaS
ACTIVE Net -
(credit card refunds SaaS
-flat fee)
ACTIVE Net -
Credit Card
Processing Fee SaaS
C/ )
ACTIVE Net -
Everxgreen
Package:
Advanced Bundle
Service
Schedule
Created Date
12f27I2022.
Quote Number
00127820
Currency
USD
Contact Name
Sheri Endsiey
Phone
817-392-8200
Email
Sheri.endsley@fortworthtexas.gov
Ship To Contact Sheri Endsley
Ship To Address 4100 Col um bus Trail
Fort Worth, TX 76116 United States
The cost of thisfeature will be subscription based -and will be due
annually for the duration of your contract.
The ACTIVE Net - Evergreen Padrage: Advanced Bundle consists afthe
following Services:
Marketing
• Basic Google Malytics and Co6gle Tag Manager configuration,
including eCommerce and cros"orrraintraclang
• Ongoing Google AnalyUcs and Google Tag Manager updates and
maintenance
• Baseline SEO assessment, induding.a site audit and site crawl,
occuring on a quarterly (3 month) cadence
• Access to a Digital Marketing Consultant to assist with troubleshooting
questions, including a 1 hour telephonic meeting each month upon
request by Client
Professional Services
• Access to Academy Exclusive for all logi ns
• Annual tech refresh optimization ¢emote)
-Annual database management optimization demote)
• Certification demote)
Technical Account Manager
• Dedicated escalation point for high priority issues
• 24 hour target response time
• Monthlytelephonicopen, case review with assigned Technical Account
Manager
100% of total Service cost will be billed upon execution of the relevant
1 9,00000
1 0.10
1 2.26
122,600.00
Page 24 of 25
DocuSign Envelope ID: F431 F7C1-3589-480B-AFEF-C13FF9C3CBA9
Contract # 00127820
ACT E
netwom
ACTIVE Net -
Cateway API Pro
300 K>
ACTIVE Net - Staff
Interface Payment
Processing Fee -
Electronic
ChequelCheck
Processing
ACTIVENet - Staff
Interface -
Technology Fee
ACTIVENet
Conned
ACTIVENet Hub -
Advanced
SaaS
SaaS
Saas
Saas
Saas
Schedule
Schedule, payable within 30 days of invoice date.
Duration: Notwithstanding anything contrary within the Agreement, the
term of this service will be for 12 months from the date of last signature
below, with automatic renewals for 12 monthterms thereafter, unless
either party gives written notice
For the first three months of the Initial Term, Client is allowed unlimited
AP I calls on the production and trainer environments. After the first three
months, and for the remainder of the . Initial Term, the subscription
indudes 300,000 API calls per month on production and 50,000 API calls
ontraiher environments. If Client exceedsthe monthly limit, Client will be
assessed an overage charge of USD 0.001 per API call, invoiced m onthly.
Migration Loyalty Fatesforfirst term of contract for organizations
exceeding $30,000,000 in annual revenue through ACTIVE Net.
1 1,800.00
1 b.5o
1 0.76
1 2,388.00
1 6,000.00
Total Price US 41,688.00
Annual Projected US 41,688.00
Contract Value
Active reservesthe right, and may take additional measuresto verify Client's account which may consist of reviewing publicly
avallable.data and+ confirmation of Client provided information. Such verification measureswill be completed in advance of
remittance.
All fees described herein are in consideration of the Softvtare and Servicesthat Active provides. Active and Client acknovt edge that certaiir
credit card netvwrk 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 mayindude MasterCard, Msa, American Express and Discover.
'Salestaxand shipping not included intotal price. Salestax and shipping, vhere applicable, wall be added to yourimuce
Quote Acceptance Iflformatlon
Signature:
Printed Name: Valerie Mshinigton
Title-. Assistant City Manager
D ate:
PQ#.(ifappli0able)r
ActivaH uSigned by:
Signature: ra SLu*p
042FAC5901474C9...
Name: Randy Skernp
Title: vice President, sales
Date. 3/13/2023 1 10:13 AM CDT
Page 25 of 25