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HomeMy WebLinkAboutPK14-174 - Original - The Active Network, Inc. - Active.com Cornucopia Days Fun Run - 03/27/2013 T Records Management- WASHINGTON Document }s CONTRACT COVER SHEET This is to be completed by the Contract Manager prior to submission to City Clerks Office. All portions are to be completed. If you have questions, please contact City Clerk's Office. Vendor Name: Active.com Vendor Number: JD Edwards Number Contract Number: W 14 -114 This is assigned by City Clerk's Office Project Name: Active.com Corn Days Fun Run Description: ❑ Interlocal Agreement ❑ Change Order ❑ Amendment ® Contract ❑ Other: Contract Effective Date: �j Termination Date a J 30 Contract Renewal Notice (Days): Number of days required notice for termination or renewal or amendment Contract Manager: Mark Hendrickson(tp) Department: Cultural Programs Detail: (i.e. address, location, parcel number, tax id, etc.): Fun Run Contracts S Pubhc\RecordsManagement\Forms\ContractCover\adcc7B32 1 11108 Page 1 of 4 View Contract Print contract Contract accepted by:Kent Cornucopia Days fun Run Date contract accepted:3/27/2013 Your use of TAN's software as a solution product("Software")and products,software,services and web sites (referred to collectively as the"Services")is subject to the terms set forth below(the"Terms")and is between you and TAN "TAN" means The Active Network,Inc with a principal place of business is at 10182 Telesis Court,San Diego, CA 92121 In order to use the Software and Services,you must first agree to these Terms. You represent and warrant that you have the necessary and full right,power,authority,and capability to accept these Terms,to hind your organization,and to perform your obligations hereunder You can accept the Terms by (i)clicking to accept or agree to the Terms,where this option is made available to you by TAN in the user interface for any Software or Service,(u)where a link to these terms appears in an order form or other document provided to you by TAN,or(ni)by actually using the Software and/or Services.In the case of(iii), you understand and agree that TAN will treat your use of the Software and/or Services as acceptance of the Terms from that point onwards.You may not use the Software and/or Services and may not accept the Terms if(a)you are not of legal age to form a binding contract with TAN,or(b)you are a person barred from receiving the Software and/or Services under the laws of the United States or other countries including the country in which you are resident or from which you use the Software and Services.You may not use the Software or Services if you do not accept the Terms By accepting the Terms,you agree as follows• 1.Services.TAN will provide you access to its Software and Services related to your events,camps,licenses, classes,tickets,facility/equipment use,transactions,sales,memberships, reservations,donations,and/or activities(together,"Events") The features,services,options,and fees may be described more fully in an applicable schedule,pricing form,order form,or similar document, referencing these Terms (each,a "Schedule") Each Schedule will be governed by these Terms and incorporated herein by reference You agree to provide us with certain information relating to your organization as necessary for us to provide the Software and Services.Software provided under these Terms is deemed delivered when made available to you. 2 License to Intellectual Property/Promotion.a)TAN retains all right,title,and interest in and to its Software and Services and any underlying software subject to the limited license provided by these Terms. b)TAN hereby grants to you a limited,non-exclusive, non-transferable license(i)to use the Software and Services solely in accordance with the Schedule and these Terms,and (ip to display, reproduce, distribute,and transmit in digital form TAN's name and logo solely for the purposes set forth in this Section 2.You hereby grant to TAN a limited license to use information provided by you relating to your organization,which may include your organization's name,trademarks,service marks,and logo,in connection with the promotion of your organization or Events. c)You will make reasonable efforts to promote and encourage the use and availability of the Software in connection with the promotion of your Events for which you are using the Software and Services.You will include TAN's name and logo in newsletters, printed registration forms or mailings provided by you to prospective participants(e g., by inserting the following statement in any online or print media related to your Event:"Online Registration Powered by Active.coni TAN will be the sole and exclusive provider of registration services similar to the Software and Services provided to you hereunder for each Event for which you are using TAN's Software and Services during the term of these Terms. d)You agree to receive notifications regarding free product,promotional items,and giveaways at your Event (s)or facility(ies),but you may opt not to receive the items from TAN Registrants of your Events may opt-in to receive information,items,or promotions/deals from TAN;we will be responsible for providing customer service for any such offers. e)Each party agrees to comply with all applicable laws, rules,and regulations relating to such party's http://www.active.com/explorer/admin/contract.cfm?eventId=2091301 5/1/2014 Page 2 of 4 obligations hereunder. 3.Information Collection TAN collects certain information from individuals as part of the registration process for your Events You may login to our data management system to access this information.You are responsible for the security of your login information and for the use or misuse of such information by users authorized by you to use the Software and Services You will immediately notify TAN in writing if any such users are no longer authorized Both parties agree to use the collected information in compliance with(i)all applicable laws, rules and regulations,including,without limitation, those governing online privacy and use of credit card data (i a using credit card information only for purposes authorized by the cardholder),(if) applicable Payment Card Industry Data Security Standards,and(iii)TAN's privacy policy as published on its website 4.Fees.a)You will pay the fees as more fully described in the applicable Schedule.For registration software, unless otherwise set forth on the applicable Schedule,TAN will collect registration fees charged by you from individuals who register for your Events online,for the purposes of card association rules,as a merchant of record but not a seller of record.TAN will remit those sums to you, net of chargebacks and any other offsets, bi-weekly unless otherwise set forth in the applicable Schedule, less TAN's service fees as set forth in the applicable Schedule TAN may suspend its performance hereunder, including remitting payments, in the event it reasonably believes that the Software or Services are being used for fraudulent or other suspect purposes If you have agreed to a minimum volume commitment in a Schedule,TAN also has the right to charge fees owed to it by you if your organization does not meet the agreed volume commitments and may collect those fees by issuing an invoice or by offsetting the deficiency from any account balance you maintain with TAN. Any minimum volume commitment calculations will begin on the date that the Software is live for your Event (s),TAN may also reimburse itself for any chargebacks, returned items or overdue fees owed by you out of the registration fees it collects on your behalf by offsetting your account If the Schedule indicates that you are paying on a subscription basis,you will be invoiced for the first year of subscription fees upon the first five operational use of the Software("Go-Live Date"),with subsequent annual subscription fees being invoiced upon each anniversary of Go-Live Date.Payment of subscription fees are due within thirty(30)days of your receipt of an invoice All fees and prices are in United States Dollars unless otherwise specified. b)All fees that are not directly collected by TAN as part of registration fees will be due from you within thirty (30) days from the end of the remittance cycle during which the fees accrued These fees are displayed on your account statement Past due fees shall accrue interest at the annual rate of ten percent(10%)per annum. In the event of delay in paying a fee,you agree to reimburse TAN for any fees incurred in its collection efforts. TAN may suspend or deactivate your account if your account is more than thirty(30)days past due. c)TAN reserves the right to modify the fees once per calendar year,provided that any increase will not exceed twelve and a half percent(12 5%) TAN shall notify you at least thirty(30)days in advance of any such change If we modify the fees,you can terminate these Terms at that time by providing written notice within thirty(30) days following the date the change is implemented. d)As the seller of record,you will be solely responsible for,and will pay,any and all use,excise,sales or privilege taxes,duties,value added taxes,fees,assessments,or similar liabilities,chargeable by a governmental authority as a result of any Software or Service provided under these Terms Taxes on TAN's net income are excluded e)In the event you are entering into these Terms and seeking the Services for the benefit of a third-party event or organization('Third Party Beneficiary'),you agree that we may send registration fees collected by us directly to the Third Party Beneficiary 5 Disclaimer of Warranty/Limitation of Liability.TAN EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE USE OF ITS SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SOFTWARE OR SERVICES WILL MEET YOUR REQUIREMENTS.SOFTWARE AND SERVICES ARE PROVIDED TO YOU ON AN"AS- http://www.active.com/explorer/admin/contract.cfm?eventId=2091301 5/1/2014 Page 3 of 4 IS"BASIS WITHOUT WARRANTIES OF ANY KIND,EITHER EXPRESS OR IMPLIED,INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE TAN SHALL NOT BE LIABLE FOR INDIRECT,INCIDENTAL,CONSEQUENTIAL, PUNITIVE,OR LOST PROFIT DAMAGES TAN'S TOTAL AGGREGATE LIABILITY FOR ANY MATTER ARISING FROM OR RELATED TO THESE TERMS IS LIMITED TO THE AMOUNT OF FEES ACTUALLY PAID BY YOU 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 6.Indemnification.a)Each party(the"Indemnifying Party")shall defend,settle,and pay damages(including reasonable attorneys'fees)("Damages")relating to any third party claim,demand,cause of action or proceedings(whether threatened, asserted, or filed)("Claims')against the other party hereto(the "Indemnified Party")to the extent that such Claim is based upon (i)the Indemnifying Party's violation of any applicable law,rule,or regulation;and/or(ii)provision, by the Indemnifying Party,of materials, products,or services as part of such party's obligations hereunder that infringe the intellectual property rights of any third party provided that such materials,products,or services are used in accordance with these Terms b)You shall further defend, settle,and pay Damages relating to Claims to the extent based on(i)injury or death to a person or damage to property resulting from the participation in an Event operated by you in connection with the Software and/or Services,and/or(h)brought by a Third Party Beneficiary that relate to or arise from your negligence,wrongdoing,or lack of authority to act on behalf of such third party For the purposes of Sections 5 and 6,reference to TAN shall also include its suppliers and licensors 7.Term and Termination.The term of these Terms shall be for three(3)years from the Effective Date with automatic renewals for three(3)year terms thereafter,unless either party gives written notice to the other party to terminate these Terms no less than twelve(12)months prior to the expiration of the then-current term Either party may terminate these Terms-(a)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,or(b)where the other party is subject to a filed bankruptcy petition or formal insolvency proceeding that is not dismissed within thirty(30) days. 8.Miscellaneous a)Any notices required to be given under these Terms shall be in writing sent to the address set forth below for you or, in the case of TAN,to the address set forth above to the attention of General Counsel Notices will be deemed received the next day if sent via overnight mail or courier with confirmation of receipt,or three(3)days after deposited in the mail sent certified or registered. b)These Terms are non-assignable without the written consent of the other party,except that TAN may assign without consent (i)its rights to receive payments;or(i)to an affiliate or in connection with any sale of or any other transaction involving the transfer of more than fifty percent of its voting securities or assets Any assignment in violation of these Terms will be void. c)These Terms shall be governed by the laws of the State of California,without giving effect to the conflict of laws provisions thereof Neither the United Nations Convention of Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act shall apply to these Terms Any legal action or proceeding relating to these Terms shall be instituted only in any state or federal court in San Diego County, California In any action or suit to enforce any right or remedy under these Terms or to interpret any provision of these Terms,the prevailing party shall be entitled to recover its casts, including reasonable attorneys'fees. d)These Terms contains the entire understanding of the parties regarding the subject matter hereof and can only be modified or amended by a subsequent written agreement executed by both parties. e)Sections 2, 3,5,7,and 8 of these Terms and any fees owed by you shall survive any termination or expiration of these Terms. http://www.active.com/explorer/admin/contract.cfm?eventId=2091301 5/1/2014 Page 4 of 4 f)if any provision of these Terms is held unenforceable by a court of competent jurisdiction,that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties,and the remainder of these Terms shall continue in full force and effect. g)No waiver of any provision of these Terms or any attachment shall be effective unless it is in writing and signed by the party against which it is sought to be enforced h) Neither party will be deemed to be in default hereunder,or will be liable to the other,for failure to perform any of its obligations under these Terms to the extent that such failure results from any event or circumstance beyond that party's reasonable control. http://www.active.com/explorer/admin/contract.cfm?eventId=2091301 5/1/2014 AMENDMENT TO THE HOSTED SOFTWARE LICENSE AND SERVICES AGREEMENT ("AGREEMENT") BETWEEN Active Network, LLC (successor in interest to The Active Network, Inc.) ("Active") and CITY OF KENT ("City") INSURANCE REQUIREMENTS This Amendment No. I (this "Amendment") is made effective as of June 19, 2014 (the "Amendment Effective Date") and amends that certain Agreement between Active and City dated as of March 26,, 2014 to include the following insurance requirements: Insurance Active shall procure and maintain for the duration of the Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work hereunder by Active, its agents, representatives, empioyees_or subcontractors. A. Minimum Scope of Insurance Active shall obtain insurance of the types described below: 1. Commercial General Liability insurance shall be written on ISO occurrence form CG 00 01 and shall cover [lability arising from premises, operations, Independent contractors, products-completed operations, personal injury and advertising injury, and liability assumed under an Insured contract. The City shall be named as an insured under the Courts Commercial General Liability insurance policy with respect to the work performed for the City using ISO additional insured endorsement CG 20 10 11 85 or a substitute endorsement providing equivalent coverage. 2. Professional Liability (Technology Errors & Omissions) insurance appropriate to Active's profession. 3. Fidellty/Crlme Insurance with specific coverage for Computer Fraud and Funds Transfer Fraud. 4. Gvber Liability insurance naming the City as an Additional Insured. B. Minimum Amounts of Insurance Active shall maintain the following Insurance limits: 1. Commercial General Liability insurance shall be written with limits no less than $1,000,000 each occurrence, $2,000,000 general aggregate and a $2,000,000 products-completed operations aggregate limit. 2, Professional LiabihtI (Technology Errors &Omissions) insurance shall be written with limits no less than $2,000,000 per occurrence, 3. Fidelity/Crime insurance shall be written with limits of $2,500,000 and inclusive of coverage for Computer Fraud and Funds Transfer Fraud 4. fiber Liability insurance coverage shall be written with limits of at least $2,000,000 per occurrence and $2,000,000 aggregate. C. Other Insurance Provisions The Insurance policies are to contain, or be endorsed to contain, the following provisions for Automobile Liability and Commercial General Liability insurance: - - - - - -- 1. Active's insurance coverage shall be primary Insurance with respect to the City. Any Insurance or self-insurance coverage maintained by the City shall be excess of Active's insurance and shall not contribute with it. 2. Active's insurance shall be endorsed to state that coverage shall not be cancelled by either party, except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City. 3. The City shall be named as an additional insured on all policies (except Professional Liability) as respects work performed by or on behalf of Active and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance. The City reserves the right to receive a certified copy of all required insurance policies. Active's Commercial General Liability insurance shall also contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. D. Acceptability of Insurers Insurance is to be placed with insurers with a current A.M. Best rating of not less than ANII. E. Verification of Coverage Active shall furnish the City with original certificates and a copy of the amendatory endorsements, Including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of Active before commencement of the work. F. Subcontractors Active shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to all of the same insurance requirements as stated herein for Active. Active agrees to provide the documents required by this Amendment (Certificate of Insurance, plus Additional insured endorsement naming the City of Kent) within 30 days of receipt of this document. By signing below both parties agree to the terms of this Amendment to the original Agreement and have executed this Amendment as of the Amendment Effective Date Signed; City of Kent Agreed and Accepted; Active Network, LLB S By; Y: AC oR 4/16/2015 6/11/® CERTIFICATE OF LIABILITY INSURANCE D6 11//DD YI'Y1� 2014 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER,AND THE CERTIFICATE HOLDER. IMPORTANT If the certificate holder Is an ADDITIONAL INSURED,the policy(ies)must be endorsed If SUBROGATION IS WAIVED,subject to the terms and conditions of the policy,certain policies may require an endorsement A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s) PRODUCER LOckton Insurance Brokers,LLC NAMEACT CA License#OF15767 PHONE we No IAIC.Na Et Two Embarcadero Center,Suite 1700 E-MAIL ADDRESS San Francisco CA 94111 INSURERS AFFORDING COVERAGE NAIC# (415)568-4000 INSURER 20281 Federal Insurance Com an INSURED Active Network,LLC INSURER B National (Jition Fire Ins CID Pittsburgh PA 1 445 1381070 10182 Telesis Ct,Suite 100 INSURER C San Diego CA 92121 INSURER O INSURER E INSURER F COVERAGES 1084882 CERTIFICATE NUMBER: 12983067 REVISION NUMBER XXXXXXX THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS INSR TYPE OF INSURANCE ADD SUBR POLICPOLICY NUMBER MM/DDY EFF POLICY EX NYYY MM/DD/YYYY LIMITS LTR DWVD A X COMMERCIAL GENERAL LIABILITY Y N 3587-79-16 4/16/2014 4/16/2015 EACH OCCURRENCE DAMAGE TO RENTED CLAIMS-MADE OCCUR PREMISES(Ea occurrence) $ 1,000,000 X Host Liquor Lialb MED EXP(Any onePerson) $ 1 0000 Included PERSONAL&ADV INJURY $ 1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER GENERAL AGGREGATE s 2 OO O X POLICY ❑ PERCOL JT ❑LOC PRODUCTS-COMPIOP AGG $ 2 OO 00 OTHER COMBINED A AUTOMOBILE LIABILITY Y N 7354-66-85 4i 1612014 4/16/2015 (Ea accident)IN L L MI $ 1 00 000 X ANY AUTO BODILY INJURY(Per person) $ XXXXXXX ALL OWNED SCHEDULED BODILY INJURY Per accident) $ XXXXXXX ( AUTOS UTOS NON-OWNED PROPERTY DAMAGE $ XXXXXXX HIRED AUTOS AUTOS (Per 16s XXXXXXX A X UMBRELLA LIAB OCCUR Y N 7986-52-88 4/16/2014 4/16/2015 EACH OCCURRENCE S 51000,000 EXCESS LIAB CLAIMS-MADE AGGREGATE s 5,000,000 DED RETENTION$ s XXXXXXX WORKERS COMPENSATION N 7173-76-68 4116,12014 4/16/2015 X STATUTE ER A AND EMPLOYERS'LIABILITY YIN ANY PROPRIEiORIPARTNER/EXECUTIVE NIA EL EACH ACCIDENT $ O OO OFFICER/MEMBER EXCLUDED? N (Mandatory in NH) E L DISEASE-EA EMPLOYEE $ 1,000,000 f yes,describe under DESCRIPTION OF OPERATIONS below E L DISEASE-POLICY LIMIT $ ] B Crime Y N 04-186-73-28 4/16,2014 4/16/2015 $5,000,000 Limit B Tech E&O/Cyber Liability 04-177-78-80 4/16/2014 4/16/2015 $5,000,000 Limit DESCRIPTION OF OPERATIONS I LOCATIONS/VEHICLES (ACORD 101,Additional Remarks Schedule,may be attached if more space is required) RE Kent Parks(City of Kent),Recreation and Community Services is an Additional Insured to the extent provided by the policy language or endorsement issued or approved by the insurance tamer Insurance provided to Additional Insured(s)is primary and non-contributory as per the attached endorsements or policy language CERTIFICATE HOLDER CANCELLATION See Attachment 12983067 Kent Parks,Recreation and Community Services SHOULD ANY OF THE ABOVE DESCRIBED TICE WILL BE CANCELLED BEFORE Attu Chris Hills THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN Att FourthCis HillsAven $OBt]3 ACCORDANCE WITH THE POLICY PROVISIONS Kent WA 98032 AUTHORIZED REPRI � i1 C I rights reserved ACORD 25(2014/01) The ACORD name and logo are registered marks of ACORD Liability Insurance Endorsement Policy Period: 4/16/2014 TO 4/16/2015 Effective Date: 4/16/2014 Policy Number: 3587-79-16 Insured ACTIVE NETWORK, INC Name of Company: FEDERAL INSURANCE COMPANY Date Issued: 4/16/2014 This Endorsement applies to the following forms GENERAL LIABILITY Under Who Is An Insured,the following provision is added. Who Is An Insured Scheduled Person Or Subject to all of the terms and conditions of this insurance,any person or Organization organization organization shown in the Schedule,acting pursuant to a written contract or agreement between you and such person or organization, is an insured,but they are insureds only with respect to liability arising out of your operations, or your premises, if you are obligated, pursuant to such contract or agreement,to provide them with such insurance as is afforded by this policy However,no such person or organization is an insured with respect to any • assumption of liability by them in a contract or agreement This limitation does not apply to the liability for damages for injury or damage,to which this insurance applies,that the person or organization would have in the absence of such contract or agreement • damages arising out of their sole negligence Schedule PERSONS OR ORGANIZATIONS THAT YOU ARE OBLIGATED, PURSUANT TO WRITTEN CONTRACT OR AGREEMENT BETWEEN YOU AND SUCH PERSON OR ORGANIZATION,TO PROVIDE WITH SUCH INSURANCE AS IS AFFORDED TO THE MINIMUM EXTENT THAT SUCH CONTRACT OR AGREEMENT REQUIRES THE PERSON OR ORGANIZATION TO BE AFFFORDED STATUS AS AN INSURED, HOWEVER, NO PERSON OR ORGANIZATION IS AN INSURED UNDER THE PROVISION WHO IS MORE SPECIFICALLY DESCRIBED UNDER ANY OTHER Liability Insurance Additional Insured-Scheduled Person Or Organization continued Form 80-02-2367(Rev 8-04) Endorsement Page 1 Attachment Code D493597 Certificate ID 12983067 Liability Endorsement (continued) PROVISION OF THE WHO IS AN INSURED SECTION OF THIS POLICY (REGARDLESS OF ANY LIMITATION APPLICABLE THERETO) All other terms and conditions remain unchanged. Liability Insurance Additional Insured-Scheduled Person Or Organrzabon last page Form 80-02-2367(Rev 8-04) Endorsement Page 2 Attachment Code D493597 Certificate ID 12983067