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SABO CLIENT AGREEMENT
This Agreement is executed effective date of Ocroszze 2Z 62O/3 between
SeatAdvisor Inc., a California corporation ("SeatAdvisor"), and the City of Elgin, an Illinois
municipal corporation ("Client"),who agree as follows:
1.Recital.This Agreement is made with reference to the following recital of essential facts:
1.1. Client shall utilize SeatAdvisor's SeatAdvisor Box Office TM system
("SABO"), an Internet-based ticketing system, pursuant to the terms and conditions set
forth in this Agreement.
1.2. SeatAdvisor shall provide SABO to Client pursuant to the terms and
conditions set forth in this Agreement and in consideration of the fees set forth in Exhibit A
attached hereto and made a part hereof.
2.Definitions. For purposes of this Agreement,the following definitions shall apply:
2.1. Event: Events created in SABO using the"Manage Events" function.
An event can be named anything by the Client and can represent either a single
"performance" or a group of performance dates/times. An Event can be used for anything
that can be sold such as tickets,donations,merchandise, admissions, registrations, etc. Once
an Event is created,inventory (Tickets) can then be generated for that event which can then
be sold.
2.2. Ticket: Any item in SABO that can be sold. Tickets can represent
things such as admission tickets to events,merchandise,concessions,gift certificates,etc.
2.3. Patron: A purchaser of a Ticket to an Event at the Venue(s) and/or
individuals and entities whose personal information is added or transferred into SABO.
2.4. Patron Data: Personal information about Patrons, including, but not
limited to, their names, addresses, phone numbers, ticket purchases history and patterns,
credit card numbers and donation information.
2.5. SeatAdvisor Box Office System (SABO): The Internet-based box
office management system and related procedures established and maintained by
SeatAdvisor for the purpose of managing event creation, facilitating ticket inventory
management, handling subscription and single ticket sales in Client's Ticket Office,handling
single ticket sales on the Internet, managing the creation of ticket subscription packages,
printing tickets, tracking Patron data, and related other features, and subsequent versions
thereof.
2.6. Venues: Facilities owned by the City of Elgin including, but not
limited to, The Hemmens Cultural Center, Art Showcase, Festival Park and City
Events.
2.7. Term of Agreement. Unless terminated for breach or by either of the
parties hereto, this agreement shall terminate on December 31, 2016. Either party hereto
may terminate this agreement at any time for any reason,with or without cause, upon thirty
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(30) days written notice. Upon any such voluntary termination, SeatAdvisor shall remove
any of Client's Ticket data and Patron Data from SABO, and Client shall remit any sums
then currently owing to SeatAdvisor pursuant to Paragraph 7 and Exhibit A below. In the
event Client terminates this agreement for any reason, Client shall be liable to SeatAdvisor
only for such sums as may be currently owed to SeatAdvisor as of the effective date of such
termination.
3. Compensation. In consideration for Client's use of SABO and SeatAdvisor's services to
be performed under this Agreement, the sufficiency of which is hereby mutually acknowledged,
SeatAdvisor shall be entitled to receive the fees set forth on Exhibit A.
4. Central Computer Facility. SeatAdvisor shall, at its sole expense, source a central
computer facility for the operation of SABO. Barring unforeseen technical difficulties, acts of God
or other events beyond the control of SeatAdvisor, the central computer facility will be in operation
24 hours a day/seven days per week, except for scheduled downtime of up to 4 (four) hours per
week, and will be adequately staffed to perform all of SeatAdvisor's services under this Agreement.
SeatAdvisor shall provide either verbal or e-mail notice of all such aforementioned scheduled
downtime periods not less than 24 hours in advance of any such downtime.
S. Event Set-Up. Client shall have the sole responsibility for the proposed arrangement of
the Venue for all Events, including without limitation, the Ticket pricing structure, providing Ticket
text printing information, event description information and all other information necessary for the
proper sale of Tickets. SeatAdvisor shall not be responsible for entering any of the foregoing into
SABO. SeatAdvisor shall not be responsible for any mistakes made by Client in the Event set-up.
6. Treatment of Patron Data. SeatAdvisor recognizes that the Patron Data is a critical asset
of Client and not an asset of SeatAdvisor. As such, SeatAdvisor shall in no way share, sell,
disseminate or otherwise provide such data to any other third party without the written permission
of Client. SeatAdvisor shall not utilize the Patron Data for any purpose except as requested or
permitted in writing by Client, or for the purpose of determining the number of Patron Data records
stored in SABO, or for the purpose of fulfilling its duties under this Agreement, or as may be
required by law. Notwithstanding the foregoing,if any of Client's Patrons purchase tickets through
more than one SABO client, Client agrees that each such other SABO client shall retain the right to
access Client-specific Patron Data for that Patron.
7. Accounting Procedures. Client shall either utilize Client's own credit card merchant
account, integrated with the SABO online credit card transaction processing system, or use
SeatAdvisor's merchant account for the purpose of accepting credit card orders for Ticket Sales on
the Internet or in the Ticket Office. If client uses client's merchant account,SeatAdvisor will invoice
Client monthly for amounts owed by Client to SeatAdvisor pursuant to Exhibit A of this Agreement
and Client shall pay SeatAdvisor within 30 days of receipt of SeatAdvisor invoice. If Client is
approved for and uses SeatAdvisor's merchant account, SeatAdvisor will inform Client when funds
will be remitted by SeatAdvisor to Client for sales less any fees in Exhibit A. Any past due amounts
will be charged a 1°o finance charge per month.
8. Client's Default. The occurrence of any of the following events for 30 days (or such
shorter time as may be specified) after receipt by Client of written notice of such event and Client's
failure to cure such event shall, at SeatAdvisor's option, constitute an Event of Default and entitle
SeatAdvisor to immediately terminate this Agreement and Client's right to effect sales of"Tickets
through SABO and take possession of any Equipment provided by SeatAdvisor.
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8.1. Failure of Client to pay SeatAdvisor any sums due under this
Agreement for thirty (30) days after receipt by Client of written notice thereof and its failure
to cure the same;
8.2. Client's breach of any material term, covenant, condition,
representation or warranty in this Agreement; or upon the occurrence of any of the
foregoing Events of Default, Client shall without demand, immediately pay to SeatAdvisor
all amounts due and owing under this Agreement,and SeatAdvisor may,without notice to or
demand upon Client (a) terminate access to SABO (b) institute litigation for the recovery of
all damages resulting from Client's failure to perform its obligations under this Agreement
and (c) terminate this Agreement. All remedies under this Agreement shall be cumulative
and in addition to any other remedy available to SeatAdvisor at law or in equity.
9. Client's Representations and Warranties. Client represents and warrants to SeatAdvisor
that the entering into and performance of this Agreement will not violate any agreement, contract,
judgment, order, law or regulation applicable to Client (including without limitation an exclusive
agreement or understanding between Client and/or the Venue or the Venue's owners or operators,
and any third party respecting the sale of Tickets for any Events held at the Venue) or any provision
of Client's charter or bylaws, or result in any breach of, constitute a default under, or result in the
creation of, any lien, charge, security interest or other encumbrance upon any assets of Client or
upon the Equipment, pursuant to any agreement or instrument to which Client is a party or by
which it or its assets may be bound. Client represents and warrants to SeatAdvisor that Client is an
agent of each Venue at which any of its Events are held and is duly authorized in such capacity to
execute this Agreement.
10. Termination Due to Bankruptcy. In the event a party: (i) declares their intent to seek
bankruptcy protection; (ii) becomes insolvent; (iii) voluntarily files or has filed against it a petition
under applicable bankruptcy or insolvency laws which such party fails to have released within thirty
(30) days after filing; (iv) proposes any dissolution, composition or financial reorganization with
creditors or if a receiver, trustee, custodian or similar agent is appointed or takes possession with
respect to all or substantially all property or business of such party;or(v) such party makes a general
assignment for the benefit of creditors, the other party may terminate this Agreement by giving a
termination notice,which termination shall become effective ten (10) days after mailing.
11. EXCLUSION OF WARRANTIES. CLIENT HEREBY ACKNOWLEDGES THAT
SEATADVISOR HAS NO CONTROL OVER INTERNET-RELATED AND SERVER
CONDITIONS (INCLUDING WITHOUT LIMITATION INTERNET ACCESS,SPEED AND
NETWORK SERVICE INTERRUPTIONS). CLIENT HEREBY ACKNOWLEDGES THAT
SEATADVISOR HAS MADE NO REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, WITH RESPECT TO: (I) THE SUITABILITY OF ITS SERVICES FOR THE
PURPOSES OR USES OF CLIENT,OR(II)THE MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. SEATADVISOR SHALL NOT BE LIABLE TO CLIENT FOR,
AND CLIENT HEREBY ASSUMES ALL RISK OF AND WAIVES ALL CLAIMS AGAINST
SEATADVISOR, IN RESPECT OF ANY DAMAGE WHATSOEVER TN CONNECTION
WITH CLIENTS USE OF SABO (WHETHER BASED UPON CONTRACT, TORT,
NEGLIGENCE, WARRANTY, PRODUCT LIABILITY, STRICT LIABILITY, AND/OR
OTHERWISE AND WHETHER OR NOT SEATADVISOR HAS BEEN NOTIFIED OF THE
POSSIBILITY OF SUCH DAMAGE) RESULTING FROM, OR ARISING OUT OF,
SEATADVISOR'S SERVICES OR CLIENTS USE OF SABO.
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12. Governing Law. This agreement shall be subject to and governed by the laws of the State
of Illinois. Venue for the resolution of any disputes or the enforcement of any rights arising out of
or in connection with this agreement shall be in the Circuit Court of Kane County, Illinois.
13. Prior Understandings. This Agreement and all documents specifically referred to and
executed in connection with this Agreement: (a) contain the entire and final Agreement of the
parties to this Agreement with respect to the subject matter of this Agreement, and (b) supersede all
negotiations, stipulations, understandings, Agreements, representations and warranties, if any, with
respect to such subject matter,which precede or accompany the execution of this Agreement.
14. Attorney's Fees. The prevailing party(ies) in any litigation, arbitration, bankruptcy,
insolvency or other proceeding("Proceeding") relating to the enforcement or interpretation of this
Agreement may recover from the unsuccessful party(ies) actual attorney's fees relating to or arising
out of(a) the Proceeding (whether or not the Proceeding proceeds to judgment), and (b) any post-
judgment or post-award proceeding including, without limitation, one to enforce or collect any
judgment or award resulting from the Proceeding. All such judgments and awards shall contain a
specific provision for the recovery of actual attorney's fees.
15. Notices. Each notice and other communication required or permitted to be given under
this Agreement ("Notice") must be in writing. Notice is duly given to another party upon: (a) hand
delivery to the other party, (b) receipt by the other party when sent by facsimile to the address and
number for such party set forth below (provided, however, that the Notice is not effective unless a
duplicate copy of the facsimile Notice is promptly given by one of the other methods permitted
under this paragraph), (c) three business days after the Notice has been deposited with the United
States postal service as first class certified mail, return receipt requested, postage prepaid, and
addressed to the party as set forth below, or (d) the next business day after the Notice has been
deposited with a reputable overnight delivery service, postage prepaid, addressed to the party as set
forth below with next-business-day delivery guaranteed, provided that the sending party receives a
confirmation of delivery from the delivery-service-provider.
To: SEATADVISOR INC.
2655 Camino Del Rio North
Suite 470
San Diego,CA 92108
(714) 442-2627—fax
To: Amanda Rodebeck
Cc: Butch«'ilhelnu
City of Elgin, Illinois
Hemmens Cultural Center
45 Symphony Way
Elgin,IL 60120
847-931-5900
Each party shall make a reasonable,good faith effort to ensure that it will accept or receive Notices
to it that are given in accordance with this paragraph. A party may change its address for purposes
of this paragraph by giving the other party(ies) written notice of a new address in the manner set
forth above.
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16. ARBITRATION OF DISPUTES. The terms of this agreement shall be severable. In
the event any of the terms or provisions of this agreement are deemed to be void or otherwise
enforceable for any reason, the remainder of this agreement shall remain in full force and effect.
17. Compliance with Laws. Notwithstanding any other provision of this agreement,it is
expressly agreed and understood that,in connection with the performance of this agreement,
SeatAdvisor shall comply with all applicable federal,state, city and other requirements of law,
including,but not limited to,any applicable requirements regarding prevailing wages,minimum
wage,workplace safety and legal status of employees. Without limiting the foregoing, SeatAdvisor
hereby certifies,represents and warrants to the City that all SeatAdvisor's employees and/or agents
who will be providing products and/or services with respect to this agreement shall be legal
residents of the United States. SeatAdvisor shall also,at its expense, secure all permits and licenses,
pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution
of the work,and/or the products and/or services to be provided for in this agreement. The City
shall have the right to audit any records in the possession or control of SeatAdvisor to determine
SeatAdvisor's compliance with the provisions of this section. In the event the City proceeds with
such an audit, SeatAdvisor shall make available to the City SeatAdvisor's relevant records at no cost
to the City.
18. Relationship Between the Parties. This agreement shall not be construed so as to create
a partnership, joint venture, employment or other agency relationship between the parties hereto,
except to the extent specifically provided for herein.
19. Submission to Jurisdiction.SeatAdvisor hereby irrevocably consents to jurisdiction of the
Circuit Court of Kane County, Illinois for the resolution of any disputes or the enforcement of any
rights arising out of or in connection with this agreement upon written notice, including a copy of
any applicable complaint pursuant to the provisions of Section 15 herein. The provisions of this
section shall survive any termination or expiration of this agreement.
SeatAdvisor's Initials: Client's Initials:
For the City of El i , IL
Signed:
Name: Sean Stegall
Title: City Manager
SEATADVISOR,INC., a California corporation
By:
Brent Miller, President and CEO
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EXI-IIBIT A
Box Office Processing Fee
$0.65 per ticket
Subject to the Minimum Box Office Tickets Processed (as defined below), Client shall pay to
SeatAdvisor a Box Office Ticket Processing Fee, which will be calculated based on the net tickets
processed by Client using SABO. "Net tickets" is defined as [number of tickets sold less refunds,
exchanges and up to 10% free comps ($0 priced tickets)]
Annual Minimum Box Office Tickets Processed
10,000
Should the annual sum total of Client's Box Office Tickets sold not amount to the above minimum
totals (the "Minimum Tickets"), Client shall pay SeatAdvisor the difference between the annual sum
total of Box Office Tickets sold and the Minimum Tickets as defined above multiplied by the Box
Office Ticket Processing Fee. SeatAdvisor will send Client an annual statement of total Box Office
Ticket Processing Fees paid within 30 days after the anniversary date of this Agreement. Should
Client have an amount owed to SeatAdvisor to reach the annual minimums, Client shall remit such
funds within 30 days of receiving the SeatAdvisor annual statement.
Private Labeled B2C (optional)
Client shall pay SeatAdvisor a setup fee of$ N/A to customize the B2C screens (colors and fonts)
to match Client's website.
Credit Card Processing Fee—SeatAdvisor Merchant Account
If Client uses SeatAdvisor's credit card merchant account for any Ticket sales, Client shall pay
SeatAdvisor 5% of the gross amount of all tickets and Client extra charges/fees (if any) processed.
Credit Card Processing Fee—Client Merchant Account
If Client uses the Authorize.net or PayPal gateway "Pay Flow Pro" Client will pay the gateway
vendor directly for any costs involved for processing credit card transactions. If Client chooses to
use Cybersource as the gateway,Client shall pay SeatAdvisor a setup fee of$100.00 to integrate
Client's merchant account directly into SABO (must be Cybersource compatible) and a fee of$ 0.15
per credit card transaction for those transactions that are processed through SABO on Client's
Credit Card Merchant Account.This fee shall apply to transactions that are made via Patron Internet
sales or box office credit card transactions that Client chooses to charge through the SABO system.
This fee shall be applied per authorization,not per ticket.
Charge-backs
In the event of a Patron credit card charge-back in connection with any order processed through
SeatAdvisor's merchant account, SeatAdvisor will use reasonable efforts to resolve the charge-back
issue. If SeatAdvisor is unable to reverse the Patron charge-back within five (5) days of receiving
notification of such charge-back, SeatAdvisor is authorized to deduct the amount of any such
charge-back from Client's next payment, less any fees collected by SeatAdvisor in connection with
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•
such Patron order. If such funds are insufficient to cover all such chargebacks, Client shall deliver
the amount of the deficiency to SeatAdvisor within 72 hours after notice by SeatAdvisor to Client of
the amount of the deficiency. In addition, SeatAdvisor will charge Client a $20 processing fee per
chargeback occurrence. This processing fee will be assessed whether or not the charge back is
reversed.
Training Fee
Client shall pay SeatAdvisor $595.00 for training. Should Client terminate this Agreement, all
Setup and Training fees paid by the date of termination will be completely non-refundable. In
consideration of this fee,SeatAdvisor will provide Client with:
• Up to 9 hours telephone training by a SeatAdvisor Client Services representative to be
used during the first year of this Agreement
• Import of Client-supplied Patron Data list into SABO,provided such data is supplied in
SeatAdvisor-specified format
Per Venue Setup Fee
$150 General admission
$300 For SeatMap up to 500 seats
$600 For SeatMap up to 1,500 seats
Over 1,500 seats: $600 plus $0.15 per seat over 1,500
Additional map layouts or changes for the same venue will be charged at 50%of the above prices.
50%surcharge on all rush maps.
Service and Support
Client shall be solely responsible for all service, maintenance and support-related costs for
computers, printers, Client Internet connection(s), and any other Client-owned hardware and
software utilized to access and use SABO. SeatAdvisor will provide Client with telephone and email
support specifically related to the use of the SABO system. After the completion of the Set Up and
Training services set forth in this Exhibit A, Client shall maintain its own qualified personnel (or
contract with a third-party service provider) who are trained in the day-to-day operation of SABO
for the purpose of on-going staff training, answering staff"how-to" questions, and addressing any
other SABO usage-related issues but can contact SeatAdvisor for support as needed. After the initial
setup and training, any additional training will be billed at $100/hr. or a full training can be
scheduled for$500.
Other Costs.
Except as provided in this Agreement,all other costs and expenses to be paid by Client under this
Agreement shall be due and payable upon receipt of an invoice by Client.
INFORMATION CONTAINED IN THIS DOCUMENT IS INTENDED SOLELY FOR
USE OF THE RECIPIENT(S) NAMED ABOVE AND IS CONFIDENTIAL. IF YOU
ARE NOT THE INTENDED RECIPIENT, PLEASE DO NOT READ, DISTRIBUTE,
OR REPRODUCE THIS DOCUMENT. YOU ARE ADVISED THAT
UNAUTHORIZED USE OF THIS INFORMATION BY ANY UNINTENDED
RECIPIENT MAY BE UNLAWFUL AND COULD SUBJECT THE USER TO CIVIL
DAMAGES AND OTHER PENALTIES.
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