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02-296 Resolution No. 02-296 RESOLUTION AUTHORIZING EXECUTION OF A PASS SOFTWARE SUPPORT AND LICENSE AGREEMENT WITH TICKETS .COM, INC. FOR A COMPUTERIZED TICKETING SYSTEM FOR THE HEMMENS CULTURAL CENTER BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Olufemi Folarin, Interim City Manager, be and is hereby authorized and directed to execute a PASS Software Support and License Agreement on behalf of the City of Elgin with Tickets . com, Inc . for a computerized ticketing system for the Hemmens Cultural Center, a copy of which is attached hereto and made a part hereof by reference . s/ Ed Schock Ed Schock, Mayor Presented: August 28 , 2002 Adopted: August 28 , 2002 Omnibus Vote : Yeas : 7 Nays : 0 Attest : s/ Dolonna Mecum Dolonna Mecum, City Clerk tickets,cjjjjj PASS Software Support and License Agreement Agreement No.A101-301 THIS AGREEMENT is made by and between the City of Elgin, an Illinois municipal corporation formed pursuant to the laws of the State of Illinois with its principal place of business at 150 Dexter Court,Elgin, IL 60120(hereinafter"Customer")and Tickets.com, Inc., a corporation formed pursuant to the laws of the State of Delaware with an office at 344 West Genesee Street, Syracuse,New York 13202 (hereinafter "Tickets.com"). Specific Terms and Conditions SOFTWARE LICENSE: Tickets.com hereby grants to Customer, subject to the terms and conditions hereof, a non-exclusive license to use, at the System Location,the Software described in the attached System Specification and Functional Definition during the Minimum Term all as set forth herein. Customer's license is subject to the terms and conditions contained in the General Terms and Conditions that form a part of this Agreement. II. FEES. A. License Registration Fee: The Customer agrees to pay to Tickets.com a license fee in the amount of$12,758.30 for the right to use the Software provided under Sections II.B and C, Specific Terms and Conditions,of this agreement. Customer agrees that the license fee shall be paid in accordance with the following payment schedule: B. Software Support Fee: The Customer agrees to pay the amount of$2,160.00 as an Annual PASS System support and license fee for a minimum of five(5)years. The payment shall be due on the first day of the first month following installation. Tickets.com may change the fee following the first contract year after the execution of this Agreement by not more than 10% accumulative in each subsequent year upon thirty (30)days prior written notice to the Customer. C. Protobase License: The Customer agrees to pay to Tickets.com a license fee in the amount of$3,395.00 for the Protobase CreditPASS software system(Southern DataCom)used for credit card processing charges. Protobase CreditPASS software is a third-party software product. D. Protobase Support Fee: The Customer agrees to pay the amount of$1,350.00 as the first year of annual Protobase support and maintenance fee. Should Southern DataCom, provider of Protobase, increase it rates, Customer's fee may increase accordingly. Tickets.com will provide Customer with verification of such increase. E. Installation: The Customer agrees to pay the amount of$0000.00 for hardware and software installation of the PASS System. Customer is responsible for all reasonable travel expenses, including transportation and meals,related to installation. Customer is also responsible for any additional installation expenses incurred over and above this Tickets.com,Inc. 08/20/2002 Software Support and License Agreement Page 2 of 13313 minimum amount. Customer agrees that the installation fees shall be paid in accordance with the following payment schedule: Travel fees related to installation will be invoiced separately to the Customer. F. Training: The Customer agrees to pay the amount of$5,000.00 for employee training on the PASS System. Customer is responsible for all reasonable travel expenses,including transportation and meals. Customer is also responsible for any additional training expenses incurred over and above this minimum amount. Customer agrees that the training fees shall be paid in accordance with the following payment schedule: III. SYSTEM LOCATION: The system covered by this Software Support and License Agreement shall be located at: 150 Dexter Court, Elgin, IL 60120(hereinafter"System Location"). IV. TERM OF AGREEMENT: This Agreement shall be effective and commence as of the date of signature of this Agreement by Tickets.com and shall remain in force for sixty(60)months in correspondence to the License fee term under Section]LB and C, Specific Terms and Conditions, (to be known hereinafter as the "Minimum Term" of the agreement)after which the contract will be automatically renewed. Any subsequent renewals of Agreement A101-301 will include no additional license fee and shall remain in force for so long as the Customer continues to pay the PASS system support payments specified in subsequent agreement(s). General Terms and Conditions PERMISSIBLE USE OF THE SYSTEM. A. The Hardware referred to in the HARDWARE PURCHASE AGREEMENT between Tickets.com and Customer together with the Software forms the "system". B. The system may be used only for,by and on behalf of Customer. Customer shall limit the use of the system to its employees or agents who have been appropriately trained. The Software must be used only in furtherance of the business of Customer except that Customer shall have the right to perform box office services for other Organizations as long as these services are performed by Customer's box office personnel on Customer's equipment at Customer's facilities. C. Customer may make one back-up copy of the Software for daily archival purposes provided no more than seven(7)copies of the Software exist at any one time. D. Except as provided in Paragraph I(C) of these General Terms and Conditions,Customer shall not reproduce, duplicate or otherwise copy the Software,materials and documentation pertaining to the Software or any portion thereof,without the express written consent of Tickets.com. H. PAYMENT. A. All charges due under this Agreement are exclusive of shipping charges which are F.O.B. Syracuse,New York and will be invoiced separately. Tickets.com,Inc. 08/20/2002 Software Support and License Agreement Page 3 of 1333 B. A finance charge of 1.5%per month may be assessed on payments not received by Tickets.com on or before the payment date during the term hereof. C. Consulting Services provided with the price of this contract are listed in Exhibit A. Any services rendered by Tickets.com following the termination of or outside the scope of this Agreement, including system related services such as additional training, design of special reports,theatre or arena maps,ticket formats,data conversions and other consulting services expressly excluded or deemed Additional Services shall be billed separately and in addition to the payments due hereunder, (hereinafter"Additional Services"). Additional Services will be billed at the prevailing Tickets.com rate for such service with a minimum charge of one hour,excluding after hours calls. III. TITLE. A. Other than as set forth herein, the Customer does not obtain any title or any other rights to the Software or any documentation pertaining to the Software. The Software and documentation pertaining to the Software are agreed to be proprietary information, whether or not any portion thereof may be copyrightable or patentable. B. Customer shall have no right,title or interest in or to the Tickets.com's design,or the PASS trademarks or logo. Customer shall not remove or obliterate any portion of any copyright or trademark notices or proprietary legends contained within or about the system. IV. INSTALLATION. A. Customer agrees that the System Location shall be prepared and made ready by the Customer for installation within a reasonable time prior to scheduled installation after Tickets.com signs this Agreement. The Customer also agrees that Tickets.com will be provided with full and free access to the System Location and other necessary areas upon two days prior notice, which may be made by telephone. The Customer will maintain the System Location in a safe manner to allow proper installation and Customer, if requested, shall make available an employee to answer Tickets.com's questions. B. Tickets.com shall install the system with the exception of the installation of the cable used to connect the PASS Server and Stations. Tickets.com will provide specifications for the cable to the Customer sufficient to identify the proper cable and associated equip- ment. Installation of the cable and associated equipment will be the responsibility of Customer and shall be completed prior to the installation of the system by Tickets.com. Customer must provide written notice to Tickets.com when the cable and associated equipment have been installed pursuant to Tickets.com's specifications before Tickets.com will schedule installation of the system. C. Two to three days of pre-installation consultation,depending upon the size and complexity of the installation shall be provided without additional charge at Tickets.com's facility in Syracuse,New York. Customer's travel expenses shall be the responsibility of Customer. V. TRAINING Tickets.com,Inc. 08/20/2002 Software Support and License Agreement Page 4 of 13313 A. Training shall be provided at Customer's location. Customer will be charged for the reasonable travel expenses,including transportation and meals of Tickets.com's training personnel plus the amount of one thousand dollars($1,000.00)per day for such training. The recommended training time for your system is estimated at 5 days(0 days for installation and 5 days for training).This recommended time is inclusive of all travel time by Tickets.com's personnel. If the Customer wishes to provide the travel arrangements for Tickets.com's personnel,pre-approval by Tickets.com's management is required. Additional training is available through Tickets.com pursuant to these General Terms and Conditions,Additional Services. VI. ACCEPTANCE. A. The Software hereunder will be subject to acceptance testing by Customer for a period of forty-five(45)days after it is installed by Tickets.com, using such testing procedures and data as Customer deems appropriate. B. If Customer does not notify Tickets.com in writing of its rejection during said forty-five (45)day period, then Customer shall be deemed to have accepted the Software on the forty-sixth(46)day following installation. C. To reject the Software, Customer must notify Tickets.com by writing within the forty- five(45)day period of its decision to reject the Software and must set out the reasons for its rejection. Said rejection must have a reasonable basis relating to the performance of the Software. Customer shall,within ten(10)days of rejection,return the Software and all documents and material related thereto, at its expense, and shall thereafter receive a refund of eighty percent(80%)of all amounts previously paid to Tickets.com under this Agreement within sixty(60)days of the date that the Software and all documentation are received by Tickets.com at its Syracuse,New York facilities. VII. SOFTWARE SUPPORT. A. Software Support includes diagnostic telephone assistance and consultation to answer questions and diagnose problems with PASS Software and to determine the best way to solve the problems. B. Tickets.com will render on-site Software Support if required by the Customer. Such on-site services will be billed as Additional Services including travel time to and from Tickets.com's premises. C. Software Support Exclusions. 1. The following are not included in Software Support by Tickets.com: a. Programming of systems installed,contracted or sold to Customer by a company other than Tickets.com,unless Tickets.com elects to support the same; b. Recovery of programming or data where a backup of programming or data has not been properly maintained by Customer; Tickets.com,Inc. 08/20/2002 Software Support and License Agreement Page 5 of 13313 c. Software contained on disk or diskette that has been altered or damaged so as to be no longer compatible with the original Hardware sold by or installed by Tickets.com; d. Software Support which is impractical because of alterations in the Customer's Hardware or the connection of the Hardware by mechanical or electrical means to another machine or device; and e. Any improper or unauthorized modification,misuse, substitution or addition to the Software by Customer or any person not authorized by Tickets.com. 2. If persons other than Tickets.com's representatives modify or perform any maintenance service on the system and as a result thereof any service by Tickets.com is required to restore the system to good operating condition, such service will be performed at the sole discretion of Tickets.com and will be billed at the rate for Additional Services. Customer shall designate and make available a representative of Customer to assist Tickets.com, if requested by Tickets.com in performing such service. 3. Software Support does not include maintenance,repair, or replacement of any Hardware nor any installation, assistance or subsequent support of any Hardware not purchased from Tickets.com by the Customer. D. Access to System: Customer will provide Tickets.com with full and free physical access to the system in a safe environment with adequate space for Software Support and shall maintain telephone line access and modem access on a call-back basis. In addition, Tickets.com must have twenty-four(24)hour access to Customer's system via dial-up, DSL or other interne connection. E. Additional Services: The performance of Support services requested by Customer which are outside the scope of Software Support will be at the sole discretion of Tickets.com. Such services will be billed at Tickets.com's rate for Additional Services. See Exhibit B. F. Software Support Within Standard Hours. 1. Software Support will be available by telephone Monday through Friday,except legal holidays,between 9 a.m. and 6 p.m. (Customer time). 2. The Software Support representatives will use their best efforts to respond as soon as possible within a four(4)hour time period. G. Software Support Outside Standard Hours; Tickets.com provides 24 hour, 365 day service. If the Customer requests Software Support services to commence outside the standard period of Software Support or to continue for more than one hour past the end of standard support hours,the Services will be deemed Additional Services and be billable at the prevailing Tickets.com rate for such service for after hours Monday through Friday, and at time and one half for weekends and double time for legal holidays. See Exhibit B. For purposes of this Agreement,a day is defined as eight(8) working hours. Tickets.com will provide 24 hour emergency software support for system malfunctions. Tickets.com,Inc. 08/20/2002 Software Support and License Agreement Page 6 of 13313 VIII. SOFTWARE MODIFICATIONS AND ENHANCEMENTS. A. During the term of this Agreement and so long as the Customer is current in monthly Software Support payments,Customer shall be entitled to receive any enhancements or modifications to the Software as are provided to other Tickets.com customers. Software modifications are provided at no additional charge to Customer, subject to any applicable handling charges. However,no custom Software or report maintenance required to bring the Software or report(s)in line with a new Software modification will be done free of charge. B. Software modifications apply only to Tickets.com's PASS and MEGAworks software. Customer is not entitled to free 3rd party Software upgrades. C. Tickets.com shall not be responsible for any changes made to the system by any party other than Tickets.com without the written approval of Tickets.com. Any such changes shall immediately release Tickets.com from any and all obligations to correct or maintain the system,but in no way shall such changes alter or modify Customer's duty and obligation to maintain the confidentiality of the Software. Tickets.com may, at its option,terminate this Agreement if such changes are made without the written approval of Tickets.com. D. The Customer,within sixty(60)days of notification by Tickets.com,will institute all modifications of the system. Failure to institute the modification will result in Tickets.com either terminating this Agreement or imposing an additional service charge to install the modification. E. The Customer's limited license applies to all modifications and enhancements in the form of new or partial software programs or documentation. IX. CUSTOMER'S MAINTENANCE OBLIGATIONS: Customer shall at all times: A. Keep the area around the system free from any materials obstructing air flow and free from excessive dirt, dust or moisture; B. Install, if necessary, and maintain proper air conditioning on a dedicated circuit, temperature,humidity and electrical grounding as specified by Tickets.com with prompt corrections of any improper condition; C. Minimize static electric build-up in carpeted areas with the use of properly-grounded static mats and/or the application of anti-static carpet spray as frequently as is required. D. Customer must,at a minimum,make a weekly verified and non-incremental backup copy of the software data files. Tickets.com strongly recommends that this be done nightly. At no time will Tickets.com be responsible for Customer's data. X. INDEMNIFICATION. Tickets.com,Inc. 08/20/2002 Software Support and License Agreement Page 7 of 13313 A. Tickets.com will indemnify and defend Customer in any actions against Customer to the extent that they are based on a claim of infringement for the use of any of the Software, provided that Tickets.com is immediately notified in writing of such claim. Tickets.com shall have the right to control the defense of all such claims,lawsuits and other proceedings. Customer shall use its best efforts to aid Tickets.com in conducting any such defense. In no event shall Customer settle any such claim, lawsuit or proceeding without Tickets.com's prior written approval. B. In case of a judgment adverse to Customer or Tickets.com,Tickets.com shall make reasonable efforts,but shall not be required,to purchase the right to continue use of any infringing Software on Customer's behalf, or to modify the system to make it non-infringing. If neither option is reasonably practicable, Tickets.com may discontinue the license granted on 30 days written notice and refund to Customer for every full month remaining in the Minimum Term 1/60th of the license fee paid by Customer to Tickets.com under the terms this Agreement. XI. LIMITED WARRANTY. A. Tickets.com warrants its Software, and not that of any third party software provider,to be free from defects in materials or workmanship during the duration of this license under normal use and service. In the event of any defect in the Software,Tickets.com shall,at it's option, either(a)return the purchase price or(b)replace the Software that does not meet Tickets.com's warranty. If failure of Tickets.com's Software has resulted from accident,abuse, or misapplication,Tickets.com shall have no responsibility to replace the Software or refund the purchase price. Any replacement Software will be warranted for the remainder of the term of this Agreement. B. EXCEPT AS SET FORTH ABOVE,TICKETS.COM MAKES AND THE CUSTOMER RECEIVES NO WARRANTY EXPRESS OR IMPLIED AND THERE ARE EXPRESSLY EXCLUDED ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. C. TICKETS.COM SHALL NOT BE LIABLE FOR ANY GENERAL, SPECIAL OR CONSEQUENTIAL LOSS,DAMAGE, INJURY, OR LEGAL OR OTHER EXPENSE INCURRED BY CUSTOMER OR ANY PERSON OTHER THAN EMPLOYEES OR AUTHORIZED AGENTS OF TICKETS.COM,IF ARISING OUT OF THE USE OF THE SYSTEM BY CUSTOMER,UNLESS SUCH LOSS, DAMAGE OR INJURY IS CAUSED BY THE NEGLIGENCE OF TICKETS.COM,ITS EMPLOYEES OR AUTHORIZED AGENTS. XII. NON-DISCLOSURE/CONFIDENTIALITY. A. Customer acknowledges that the Software and documentation pertaining to the Software is highly confidential proprietary information. Customer, its employees or agents shall not sell, transfer,publish or otherwise disclose the Software or the documentation to any person or corporation,unless required by law. B. Customer hereby covenants and agrees that it will not alter,reverse engineer, disassemble,modify or otherwise use or alter the PASS technology except pursuant to Tickets.com,Inc. 08/20/2002 Software Support and License Agreement Page 8 of 13313 the terms of the license granted herein. Any such activity conducted by Customer shall automatically,and without further action on the part of Tickets.com,terminate the license granted herein and this agreement except that the obligations of Customer with respect to indemnification and with respect to damages which Tickets.com may incur as a result of such activity shall survive. XIII. TAXES: Customer shall pay all taxes arising out of Customer's use or possession of the Software except federal, state and local taxes based on Tickets.com's net income. XIV. TERMINATION. A. If either party breaches any of its material obligations under this Agreement,the other party shall have the right to terminate this Agreement and/or discontinue delivery of operational security codes by giving thirty days'notice to the breaching party unless the breaching party remedies the breach within the thirty-day period. B. Either party has the right to immediately, without notice, terminate this Agreement in the event either party terminates or suspends its business,becomes insolvent, makes an assignment for the benefit of creditors or suffers or permits the appointment of a receiver, trustee in bankruptcy, or similar official. C. Upon any expiration or termination of this Agreement, Customer agrees to immediately cease its use of the system. D. Termination of this Agreement shall not terminate the confidentiality obligations in Paragraph XI,the indemnification obligations in Paragraph IX and the obligations to pay the costs, expenses, and fees due and owing pursuant to Paragraph II of these General Terms and Conditions. E. Customer's obligation to make payments pursuant to Paragraph II of the Specific Terms and Conditions shall survive the termination of this Agreement by Tickets.com pursuant to Subparagraphs A and/or B above. XV. MISCELLANEOUS. A. Except as provided in the HARDWARE PURCHASE AGREEMENT between Tickets.com and Customer, this Agreement constitutes the entire agreement between the parties and may be modified or supplemented only by a written document signed by an authorized representative of each party. B. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof. C. In the event that any provision of this Agreement shall be illegal or otherwise unenforceable, such provision shall be severed and the entire Agreement shall not fail on account thereof and the balance of the Agreement shall continue in full force and effect. D. All notices shall be in writing addressed to the party at the address set forth in the Specific Terms and Conditions, or such other address as from time-to-time may be Tickets.com,Inc. 08/20/2002 Software Support and License Agreement Page 9 of 13313 designated in like manner. Such notices shall be deemed given on the date of receipt(or refusal)of delivery. E. Tickets.com or Customer may not assign, sublicense or subcontract its rights and obligations under this Agreement or otherwise transfer to a third party without the prior written consent of the other and any attempted assignment without such consent shall be void. F. 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 pursuant to this Agreement shall be in the Circuit Court of Kane County,Illinois. In witness whereof,the parties have hereunto set their hands and seals as of the date set out beneath their respective signatures. CITY OF ELGIN TICKETS.COM,INC. SID:611111■ Authorized Authorized Si:i ature Olufemi Folarin drajq t. ryoj'/ Printed Name Printed Nam Interim City Manager V. P 9- t. &i(va./ Couhrel Printed Title Printed Title 3o o2 -to-o2 Date Date DATE ISSUED: August 20, 2002 Tickets.com,Inc. 08/20/2002 Software Support and License Agreement Page 10 of 13;-4 SYSTEM SPECIFICATION ATTACHMENT SOFTWARE INCLUDED IN LICENSE: Network Licenses Number of Stations Software PASS License Modules DB10 3 PASS GOLD T06 T68 T77S GATEWAY_5 PBAUTH_S_3 Functionality T06=Ticketing, Subscriptions,Marketing&Reporting T79=Performance Settlement Report PBAUTH_S_X=Credit Card Authorization (where `X' equals the number of users) M02=Ticket Reporting T68=Gateway T77S=Best Seat(required for Internet Gateway) GATEWAY_5 =Internet Gateway CUSTOMER NAME: Customer name HARDWARE EQUIPMENT LOCATION: Customer Address Customer Address Tickets.com,Inc. 08/20/2002 Software Support and License Agreement Page 11 of 13313 EXHIBIT A Consulting Services Provided with Contract A101-XXX The following consulting services will be delivered during the installation process, and are included in the price of the system. • One(1)custom sales guide • Theatre/Space Design: Design of one(1) assigned seat venue (up to 6,000 seats) • One(1)Header Ticket • One(1)Gift Certificate • One(1)Custom Ticket Tickets.com,Inc. 08/20/2002 Software Support and License Agreement Page 12 of 13 313 EXHIBIT B Consulting/Additional Services 1)Customized Services $150/hour Customized services includes the creation,by the Tickets.com Syracuse staff, of venue maps, ticket formats,reports and other custom output.Also systems analysis performed via phone and/or modem by the Tickets.com staff to make PASS effective in a specific situation or function, or to make better use of existing PASS functionality.This also includes any billable training done via telephone. 2) Customized Programming $150/hour Specialized programming performed by Tickets.com Special Projects or Development staff to accommodate specific client required functionality. 3)Data Conversions and Software Interfacing $150/hour Data conversions include,but are not limited to, downloading names, subscription history, as well as transferring history from other automated systems into the PASS database. Included in this classification is the design of automated data transfer from PASS to other software applications, such as Excel or accounting packages. Files to be converted from other systems must be submitted in DOS ASCII format with fixed field lengths. 4)On-site Training $1000/day(plus travel expenses) A trainer will be sent to your site to instruct your staff on a particular module. We recommend classes of four or fewer people to allow for the most effective learning environment. Trainees should be at a similar level of PASS experience. Saturdays at$1500/day. Sundays& Holidays at$2000/day 5) On-site Support $1 000/day(plus travel expenses) A Client Service Associate is sent to your site to perform on-site hardware or software support. Saturdays at$1500/day. Sundays&Holidays at$2000/day 6) On-site Installation $1000/day(plus travel expenses) A technician is sent to your site to perform PASS system set-up and integration with existing hardware. Saturdays at$1500/day. Sundays& Holidays at$2000/day 7)In-house Training $750/day Training, as above,performed at Tickets.com's office in Syracuse,NY. The client is responsible for their expenses (transportation,lodging, food, etc.). Tickets.com,Inc. 08/20/2002 Software Support and License Agreement Page 13 of 133-13 8)In-house Hardware Repair and Diagnostics $150/hour(plus shipping) A technician will perform all necessary diagnostics as well as repair equipment,which has been purchased from Tickets.com and is not covered by any warranties. Repair and diagnostics are performed at Tickets.com's Syracuse,NY office. 9)After Hours Support $150/hour(billed in 15 minute increments) Hardware and software support after normal business hours as defined in the client's contract, excluding warranty service. Saturdays/Sundays at$190/hour; Holidays$250/hour. 10)Test and Assurance for Client Supplied Hardware $as listed below Client supplied hardware will be charged a test and assurance fee based on the following rates: $200 per workstation : $1000 per NT servers : $2000 per AIX Server : $7500 HA RISC Server Upgrade. 11) On-Site Services $200/hour Any additional hours(above the customary eight hours)required and agreed upon between Tickets.com and the client to provide on-site services such as training, installation, customizations, etc. All prices effective 12/1/00 and can change without notice.