HomeMy WebLinkAbout2004-208 Agreement - RecNetRecNet 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 Ashland Parks and Recreation ("you" or ~youd' or ~Agmcy'). 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://www, active.com (the "Webske"). To assist us in the successflal 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 Prope~' in any way, or act or
permit action in any way that would impair Active's fights in its Intellectual Property. You acknowlec~;e 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-exdusive, non-transferable license (i) to use RecNet in
accordance with Active's specifications, and ('fi) 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 rdating to
your organization, induding 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. Onsite Training. We will conduct two (2) full days of onsite training to provide a basic level of training for the
above designated RecNet product. We will provide you with additional two-hour sessions for $500 pe~r session.
4. Information Security. 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 passwoM 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 collect:ed by Active shall be
jointly owned by Active and you.
5. Privacy. Each party 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. 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. We may combine into
statistical format information collected from users and distribute such information to improve and promote our services or
attract promotional partners. You agree to such uses and further agree that we may disdog~e inforn~tion if we believe, in
good faith, that it is necessary in order to: (a) comply with the law, (b) enforce the terms and conditions of this Agreement,
or (c) protect the rights of you or us, to the extent that such disclosure is not otherwise prohibited by a~V law or regulation.
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 partidpant will be assessed a Service Charge equal to 1.5% for cash or check, and 375% for credit
card transactions. Each online registrant ~411 pay*.he 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 2.5% plus $10.00. We may change the Service
Charge at any time. We agree to provide' you with advanced notice, and you agree to such change unless you provide us
with written objection to such change ~ithin 30 days from the date such change is frrst implernenteck We will be
responsible for collecting all fees charged by you and all Service Charges assessed by us. All registration fees, except Service
C2mrges, are your exclusive property. Any fees collected by us 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 transaction fee, wl'~,.her through offline or online
transactions, of $3,000 per year. 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 year beginning the day after the training sessions referenced in
Paragraph 7. 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 reirnburse Active for any
charge backs.
7. Training Fees. Fees for the required two (2) full days of onsite training will be $3,000.00 and will be billed
directly to your organization. Additional training beyond the first three sessions will be billed at the rate of $500.00 per two-
hour session or $1,250 per each set of three (3) additional two-hour sessions. Such Fees will be due within 30 days of
invoice date. Each Fee is due on or prior to the 15m day of the fn'st month of the billing period. Ar~y 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.
8. Disclaimer of Warranty/Limitation of Liability.. Active expressly disdaims any warranty that the use of its
Intellectual Property, RecNet, or the Services will be uninterrupted or error free or that the spedfications 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 until either party gives written notice to terminate this Agreement
sixty (60) days prior to the end of a term. Ekher party may terminate this Agreement upon a material breach by the other
party if such breach is not cured within thirty (30) days following written notice to the breaching party.
10. Representations and Warranties. Each party represents and warrants that it has the necessary and M1 right,
power, authority and capability to enter into this agreement and to perform its obligations heretmder; that k owns or
controls the rights granted or licensed to the other party 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 (subject to the limits of the Oregon Tort Claims Limitations Stature, ORS 30.265 et seq.);
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. Exclusivity. 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: (i) it is based upon the indemnitor's breach of a representation, warranty or ob]ligation hereunder;
it arises out of the indemnitor's gross negligence or willful misconduct; or Cfii) it is based upon the indmmitor's violation of
any applicable federal, state or local law or regulation.
13. Arbitration. Any controversy or claim arising out of or rdating to this agreement shall be settled by binding
arbitration in accordance with the American Arbitration Association (AAA) rules then in force and effect. The arbitration,
induding the rendering of an award, shall take place in Oregon. The arbitrator or arbitrators shall apply the substantive law
of the State of Oregon. Judgment on the award rendered by the arbitrator or arbitrators may be entered in any court of
competent jurisdiction.
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 party's 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 Oregon.
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 6, 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 ~ signing this agreement in the
space indicated below and returning it to Megan Linaugh at Active by fax (858-551-7619).
THE ACTIVE NETWORK, INC.
Matthew G. Landa
President
4/9/04
Date of Agreement
Ashland Parks & Recreation
Company Name
Signature
Don Robertson, Director
Print Name and Title
Ashland Parks & Recreation
Checks Payable to:
E-Mail
340 S. Pioneer Street
Address
Ashland, OR 97520
City, State and Zip