HomeMy WebLinkAbout2004-3491
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RESOLUTION NO. 2004-349
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO AUTHORIZING THE MAYOR OF THE CITY OF SAN
BERNARDINO OR HER DESIGNEE TO EXECUTE AN AGREEMENT WITH ACTIVE
NETWORK INC. TO PROVIDE SOFTWARE SERVICE FOR REGISTRATIONS AND
RESERVATIONS.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY
SAN BERNARDINO AS FOLLOWS:
SECTION 1. The Mayor of City of San Bernardino or her designee is hereby authorized
directed to execute on behalf of said City, an agreement with Active Network Inc. to provide
software service for registrations and reservations, a copy of which is hereto, marked Exhibit
A" and incorporated herein by reference as fully as though set forth at length.
SECTION 2. The authorization granted hereunder shall expire and be void and of no
(further effect if the agreement is not executed by both parties and returned to the Office of the
City Clerk within 60 days following effective date of the Resolution.
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2004-349
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF
BERNARDINO AUTHORIZING THE MAYOR OF THE CITY OF SAN
ARDINO OR HER DESIGNEE TO EXECUTE AN AGREEMENT WITH ACTIVE
7ORK INC. TO PROVIDE SOFTWARE SERVICE FOR REGISTRATIONS AND
11VATIONS.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
nmon Council of the City of San Bernardino at a j t. reg. meeting thereof, held on the
1st day of November , 2004, by the following vote, to wit:
Members: AYES NAYS ABSTAIN ABSENT
IMCGINNIS x
Y x
4N
Rachel G. Clark, City Clerk
The foregoing resolution is hereby approved this _? rd day of November
>ved as to
and legal content:
AMES F. PENMAN,
;ity Attorney
h Valles, Mayor
of San Bernardino
2004-349
RecNet Global Services Agreement
This RecNet Global Services Agreement ("Agreement") is entered into between The Active Network, Inc., a Delaware
corporation, ("Active" or "we" or "us") and City of San Bernardino ("you" or "your" or "Agency"). Active agrees to
provide you the Services (as defined below) subject to the following terms and conditions:
1. Services. We will provide you with access to a fully -hosted version of Active's RecNet product, "RecNet",
through our website located at http,//w active coin (the "Website"). To assist us in the successful implementation and
promotion of the Services, you agree to provide us with certain information requested by us relating to your organization.
2. License to Intellectual Property/Promotion.
a. Active shall retain all right, title and interest in and to RecNet and its software, trademarks, service marks,
logo and trade names worldwide ("Intellectual Property') subject to a limited license necessary to perform this Agreement.
You shall use the Intellectual Property only as provided, and shall not alter the Intellectual Property in any way, or act or
permit action in any way that would impair Active's rights in its Intellectual Property. You acknowledge that your use of the
Intellectual Property shall not create in you or any other person any right, title or interest in or to such Intellectual Property.
Any goodwill accruing from the use of the Intellectual Property shall inure solely to the benefit of Active.
b. Active hereby grants to you a limited, non-exclusive, non -transferable license O to use RecNet in
accordance with Active's specifications, and (it) to display, reproduce, distribute and transmit in digital form Active's name
and logo in connection with promotion of the Services. You hereby grant to Active a limited non -transferable license to
use, display, reproduce, distribute, modify and transmit in digital or printed form information provided by you relating to
your organization, including your organization's name, trademarks, service marks and logo, in connection with the
implementation and promotion of the Services and the promotion of your organization. You will make reasonable efforts
to promote and encourage adoption of the Services, including displaying Active's name and logo in any newsletters, printed
registration forms or mailings provided by you to prospective participants.
3. Web Training. We will conduct (6) six sessions, four -hours per session, to provide a basic level of training for
the above designated RecNet product. Additional four-hour sessions can be purchased for $500 per session.
4. Information Secunrv. We will collect certain personal identifying information from users of the Service. Such
information shall be stored on a secure remote server. You may access this information at any time by downloading it from
our servers using your private password and "login" identifier. You will be responsible for protecting the privacy and
security of any information that you retrieve from our servers and shall indemnify and hold harmless Active for any claims
arising from unauthorized or illegal use or dissemination of such information. All information collected by Active shall be
jointly owned by Active and you.
5. Privacy. Each parry shall comply with all applicable laws, regulations and guidelines governing online privacy in
fulfilling its obligations hereunder and in collecting and using personal information about users of the Service; this includes
that active may use contact information provided by users or by you to send information about our services or our partners
to such users; provided, however, that users may opt out of any such uses in accordance with our privacy policy.
6. Fees. Transactions entered directly by participants through the Website will be assessed the customary service
fee charged by Active to online registrants ("Service Charge"), as described below. Transactions entered by a member of the
Agency on behalf of a participant will be assessed a Service Charge equal to 1.5% for cash or check, and 3.75% for credit
card transactions. Each online registrant will pay the event registration fee charged by Agency plus a service charge equal to
6.5% of the registration fee plus $.50, with a minimum fee of $2.00. If the registration fee is between $150-$500, the service
charge will be 3.5% plus $5.00, and for fees above $500, the fee will be 2.50% plus $10.00. Any credit card transaction or
authorization fees will be billed to the Agency and passed through at Active's cost. We will be responsible for collecting all
fees charged by you and all Service Charges assessed by us. All registration fees, except Service Charges, are your exclusive
property. Any fees collected by as will be sent to you twice a month and Service Charges shall be retained by us. Any
advertising revenue generated from web pages used in connection with the Services will be the exclusive property of Active.
You shall guarantee Active a minimum service charge amount; whether through offline or online transactions, of $750 per
quarter. You shall pay to Active the difference between such minimum and actual service charges collected by us, which
will be billed at the end of each quarter beginning with the month training is to commence. Active shall not be responsible
for processing or making any refunds. All credit card refunds processed will be accessed a $.10 fee charged by Active to
you. Active may reimburse itself for any credit card charge backs and associated fees out of registration fees collected by it.
In the event such funds are not available, you agree to reimburse Active for any charge backs.
7. Training Fees. Fees for the required six (6) four-hour basic training sessions will be $3,000-00 and will be billed
directly to your organization. Additional training beyond the first six sessions will be billed at the rate of $500.00 per four-
hour session. Such Fees will be due within 30 days of invoice date. Each Fee is due on or prior to the 151�� day of the first
month of the billing period. Any Fees rendered later than this deadline shall accrue interest at the annual rate of 10%. In
the event of delay in paying a Fee, you shall reimburse Active for any legal fees incurred by Active in its collection efforts.
S. Disclaimer of Warranty/Liritation of Liability. Active expressly disclaims any warranty that the use of its
Intellectual Property, RecNet, or the Services will be uninterrupted or error free or that the specifications will meet your
requirements. The Intellectual Property, RecNet, and Services are provided to you on an "AS -IS" basis without warranties
of any kind, either express or implied, including without limitation warranties of merchantability or fitness for a particular
purpose. Active's total liability under this Agreement is limited to the amount of fees and Service Charges collected
hereunder.
9. Term and Termination. The term of this Agreement shall be for one (1) year from the date set forth below,
with automatic renewals for one (1) year terms thereafter. After the first year, either party may terminate this Agreement
upon the giving of ninety (90) days prior written notice. Either party may terminate this Agreement upon a material breach
by the other parry if such breach is not cured within thirty (30) days following written notice to the breaching party.
2004-349
10. Representations and Warranties. Each parry represents and warrants that it has the necessary and full right, .
power, authority and capability to enter into this agreement and to perform its obligations hereunder; that it owns or
controls the rights granted or licensed to the other parry herein; that the execution and performance of its obligations under
this Agreement will not violate any known rights of any third party, any contractual commitments or any applicable federal,
state and local law or regulation; and that to its knowledge the marks, logos and intellectual property licensed to the other
party herein do not violate the proprietary rights of a third party.
11. Exclusivi y. Active will be the sole and exclusive provider of the Services for your agency for the term of this
Agreement.
12. Indemnification. Each party shall indemnify and hold harmless the other party and its directors officers,
employees, affiliates and agents, against any claim, demand, cause of action, debt or liability, including reasonable attorneys'
fees, to the extent that: (1) it is based upon the indemnitor's breach of a representation, warranty or obligation hereunder; (ii)
it arises out of the indemnitor's negligence or willful misconduct•, or (in) it is based upon the indemnitor's violation of any
applicable federal, state or local law or regulation.
13. ,Judicial Proceedings. Any action or proceeding undertaken by one party against the other to this RecNet
Global Services Agreement shall be filed in Superior Court in the County of San Bernardino, San Bernardino District. The
prevailing party shall be entitled to reasonable costs and attorneys fees, as determined by the court. The costs, salary and
expenses of the City Attorney and members of the City Attorney's Office in defending/enforcing this Agreement on behalf
of the City with respect to resolving a dispute shall be considered as "attorney's fees" for the purposes of this paragraph
14. Miscellaneous. Any notices shall be in writing by fax or airmail. Neither party may assign its rights or
obligations arising out of this Agreement without the other parrys prior written consent, except that Active may assign this
Agreement in connection with any sale of all or substantially all of its assets or any other transaction in which more than
fifty percent of its voting securities are transferred. This Agreement shall be governed by the laws of the State of California.
This Agreement contains the entire understanding of the parties regarding the subject matter and can only be modified by a
subsequent written agreement executed by both parties. Sections, 10, and 12 of this Agreement shall survive any
termination or expiration of this Agreement.
If the foregoing correctly reflects your understanding of our agreement please indicate this by signing this agreement in the
space indicated below and returning it to Cyril Juanitas at Active by fax (888-925-0649).
THE ACTIVE NETWORK, INC.
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Company Name
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Checks Payable to:
Agreement
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