HomeMy WebLinkAbout170181 TICKETS.COM - CONTRACT - AGREEMENT MISC - TICKETS.COM INCThis Online Ticket Services Agreement (the "Agreement") is effective as of the 7th day of February, 2005 (the
"Effective Date") by and between Tickets.com, Inc. (hereinafter "TDC"), a Delaware corporation, at 555 Anton
Boulevard, Costa Mesa, California 92626, (714) 327-5400 phone / (714) 327-5410 facsimile, and The City of Fort
Collins, Colorado (hereinafter "Client"), a municipal corporation at 417 West Magnolia, Fort Collins, CO 80521,
(970) 221-6808 phone / (970) 484-0424 facsimile.
Recitals:
TDC provides comprehensive ticketing software and services for entertainment facilities and events, and
maintains a distribution network for the sale of Tickets made available generally to the public, via various means and
methods, including the Online sale of tickets.
Client has selected TDC and TDC has agreed to act as Client's agent for Online distribution of Client's Tickets
and other services in accordance with the terms and conditions set forth herein.
Aereemenh
In consideration of the premises and the mutual promises and covenants contained in this Agreement, the
parties, intending to be legally bound, agree as follows:
Basic Terms: The following basic terms are incorporated into and made an integral part of this Agreement, as
each is referenced elsewhere in this Agreement:
A. Organization (name and address): As noted above.
B. Facility (name and address), if different from Organization: As noted above.
2. Term of Agreement:
A. Initial Term: This Agreement will remain in effect for a period of 5 years, unless terminated earlier
in accordance with the terms hereof.
B. Renewal Terms: This Agreement will be renewed automatically following the Initial Term for
successive 1-year renewal terms ("Renewal Term") unless cancelled in writing by either party not less
than 90 days prior to the expiration of the Initial Term or any Renewal Term.
3. Charges Paid:
A. Credit Card Fees: TDC will charge the Client 2.6% of the Ticket price and Per -order Processing
Charge collected from Customers, for Ticket purchases utilizing any credit card payment processed
through the TDC Ticketing Application Gateway System. If TDC's credit card rates change while
this Agreement is in effect, a new blended rate based on the increase or decrease may be put into
effect for the remainder of this Agreement.
B. Inside Charges:
I. .Subscriptions/Season Ticket Renewals. TDC will be entitled to a per -order processing fee
from the Client for Subscription/ Season Ticket Renewals in the amount of $10.00 per Order,
which will be deducted from settlement.
2. Donations. TDC will be entitled to a per -order processing fee from the Client for all online
donations in the amount of $4.00 per order, which will be deducted from settlement.
Lincoln Center Of Fort Collins — version 1.0
Released I I-30-04 Page I of 10
IN WITNESS WHEREOF, TDC and Client have each executed this Agreement on the date set forth below.
THE CITY OF FORT COLLINS
gut��Q iorized Signature
Name (Type or Print)
L�7QEeXD2 CIF NUJ 2CK�a�'ieX,
Title (Type or Print) n5,51C-- J*-t
TAX EXEMPT YES NO
If yes, please attach ax Exemption certificate
TICKETS.COM, INC.
Signature
Name (Type or Print)
Title (Type or Print)
Sales Contact: Barry Nicholas
Lincoln Center Of Port Collins — version 1.0
Released II-30-04
Poge 10 of 10
City of Fort Collins
Administrative Services
Finance Department - Accounting Division
BLANKET EXEMPTION CERTIFICATE
(For use by States, Territories, or political subdivision thereof)
Date: February 10, 2005
The undersigned hereby certifies that she is Joyce Grenz, Accounts Payable
Representative of City of Fort Collins to execute this certificate and that the article or
articles specified in the accompanying orders, or on the reverse side hereof, are purchased
from TICKETS.COM for the exclusive use of the
City of Fort Collins of the State of Colorado.
It is understood that the exemption from tax in the case of sales of articles under this
exemption certificate to a State, etc., is limited to the sale of articles purchased for its
exclusive use, and it is agreed that if articles purchased tax free under this exemption
certificate are used otherwise or are sold to employees or others, such fact will be
reported by me to the manufacturer of the article or articles covered by this certificate. It
is also understood that the fraudulent use of this certificate to secure exemption will
subject the undersigned and all guilty parties to a fine of not more than $10,000.00 or to
imprisonment for not more than five years, or both, together with costs of prosecution.
State of Colorado Department of Revenue, Certificate of Exemption
Identification Number 98-04502.
L
(Signature) v
Accounts Payable Rep — Accounting Dew
(Title of Officer)
215 North Mason Street • 2nd Floor • CO. Box 580 • Fort Collins, CO 80522-0580 • (970) 221-6770 • FAX (970) 221-6782
C. Customer Services Charges and Per -Order Processing Charges: TDC will charge the customer a
per Ticket Customer Service Charge and a Per Order Processing Charge based on the Average Ticket
Price which is entered into the In -House Ticketing System upon Event set-up. If Client's In -House
Ticketing System does not calculate the Average Ticket Price, it will be computed as follows:
1. Determine total number of Tickets placed for sale on the Internet by price category.
2. Multiply number of Tickets per category times the corresponding Ticket Price for that
particular category.
3. Total the Ticket revenue all categories.
4. Divide the total Ticket revenue by total number of Tickets put on sale to arrive at the
Average Ticket Price.
SINGLE TICKET SALES
Average Ticket Price
Customer Service Charge
Per Order Processing Charge
$0.00 (Donations)
$0,00
$0.00
$0.01 to $9.99
$1.50
$3.00
$ 10.00 to $19.99
$2.50
$3,00
$20.00 to $29.99
$3.50
$3.00
$30.00 to $39.99
$4.50
$3.00
$40.00 to $49.99
$5.50
$3.00
$50.00 and above
$6.50
$3.00
NEW SUBSCRIPTION/NEW SEASON TICKET SALES
Average Ticket Price Customer Service Charge Per Order Processing Charge
All Tickets $7.50 1 $3.00
SUBSCRIPTION/SEASON TICKET RENEWALS
Avera a Ticket Price
Customer Service Charge
Per Order Processin Char e
AI( Ticket Renewals
r
Not applicable
See Section 3.13.
$3.00
a. Ticket Prices: Client will establish the face price of all tickets sold through the TDC System. Any
and all taxes associated with the sale of such Tickets will be the responsibility of the Client as
outlined in this Agreement.
b. Customer Service Charge: TDC will retain in full the Customer Service Charge as set forth in the
tables above.
c. Per -Order Processing Charge: Client will receive the Per -Order Processing Charge as set forth in
the tables above.
D. Gateway and Data Communications: If Client enters into the ProVenueMax Software Support and
License Agreement simultaneously with the execution of this Agreement, and makes its tickets
available for sale online through the TDC Internet at the same time that the Client's ProVenueMax
system becomes operational, TDC will waive the Internet set-up fee of $5,000. In the event that
Client does not satisfy the foregoing conditions, Client will pay TDC a one-time Internet set-up fee in
the amount of $5,000 upon receipt of TDC's invoice.
E. Settlement: TDC will pay Client an amount equal to the Gross Ticket Proceeds collected by I DC
less the amounts TUC is entitled to retain pursuant to this Agreement. Such payment will be made via
Automatic Clearing House (ACH) or by check on or about Friday of each week with respect to Sales
which have occurred during Monday through Sunday of the week preceding such payment date.
If Client has any questions related to a weekly settlement, Client should contact TDC via email at
settlement@tickets.com. If Client has any questions related to a chargebacks, refunds or exchanges,
Client should contact TDC via email at credits@tickets.com.
. I, U ILI Bernet vt r un l-ouuls- versionIA
Released 11-30-04 Page 2 of 10
F. Equipment: Services and Equipment provided by Client:
1
High-speed connection from a telecommunications vendor. Client will provide a high
speed permanent internet connection.
1
Local ISP (Internet Service Provider) account compatible with the connection outlined
above.
1
Static IP addresses provided by the ISP (separate from Client's website address).
1
Router/modem for connection of the ticketing gateway to the Internet.
Provided by TDC:
I
ProVenueMax Internet Gateway functionality.
I
I Configuration of Internet Gateway functionality.
Any hardware equipment provided by Client under the terms of this Agreement will be retained as
property of Client and all responsibility for maintenance, service, warranty, and/ or replacement
thereof will be the sole responsibility of Client.
4. Definitions. For purposes of this Agreement, the following tenns will have the respective meanings set forth
below:
Applicable Revenue: The Gross Ticket Price for Tickets sold by TDC less (i) TDC's portion of the Customer
Service Charge for such Tickets, in accordance with Section 3, (it) TDC's portion of Processing Charges for
such Tickets in accordance with Section 3, or (iii) the relevant credit card fees payable in accordance with
Section 3 and 7.
API: Application Programming Interface
Attraction: A musical or theatrical production, motion picture, concert, sporting event, circus, dance, show,
display, or other performance, event or activity of any nature or description for which Tickets are sold by the
Client.
Available Seats: Tickets for events that are offered for sale to the public through the Client's Facility Box
Office. Available Seats do not include those seats customarily withheld from sale including but not limited to
subscription holds, press/promotion holds, and house/Artist holds.
Average Ticket Price: The weighted average of the prices of all Tickets available for purchase through the
TDC Ticketing Application Gateway system. The method for computation of the Average Ticket Price is
outlined in Section 3 of this Agreement.
Customer Service Charge: The amount charged to Ticket purchasers for the convenience of purchasing
Tickets online as agreed in accordance with Sections 3 and 7.
Event: An Attraction that is scheduled to take place or be presented or performed at a Facility.
Facility: All of the facilities owned, operated or leased by Client at which Attractions are held, or facilities for
which Client has rights to sell Event Tickets.
Facility Box Office: The Ticket sales facilities located in or at the Facility.
Fees: All fees or charges, including without limitation, the Customer Service Charges and Per -Order
Processing Charges payable to TDC. by the consumer in respect of Online Ticket Sales.
Gross Ticket Price: The purchase price of a Ticket, as established by Client or the promoter of the Event,
plus Fees and all taxes paid by the Ticket purchaser.
Gross Ticket Proceeds: The total of all charges paid by a icket purchaser, including the Ticket price,
Customer Service Charges, Per Order Processing charges, or any other fee included during the sale of Tickets
purchased by the Ticket purchaser as defined under this Agreement.
In-house Ticketing System: The hardware, software and services owned and/or operated and utilized by the
Client to conduct Ticket sales.
Lincoln Center Of Fort Collins - version 1.0
Released 11-30-I14 I'age3 of 10
Inventory Data: Data regarding inventories of Tickets for all Events.
Online: (i) the Internet (including the World Wide Web) to the extent that it is available to the public; (ii)
proprietary online services connected to the Internet and available for use (subject to terms) by the public; (iii)
hybrid Internet services available for use by the public such as @ Home; (iv) all other electronic interactive
services available to the public (whether free, by subscription or otherwise) via a computer network.
Online Ticket Sales: All sales of Tickets for Events by Online means.
Per Order Processing Charges; The amount charged to Ticket purchasers for the processing of an order for
Tickets as agreed in accordance with Section 3 and 7.
Scheduled Downtime: Regularly scheduled diagnostics to the TDC system as required for routine backups,
maintenance, or equipment and software upgrades.
Software Support Agreement: An agreement between Client and TDC covering software support terms and
conditions for Client's in-house ticketing system.
Ticket: Tangible evidence of the right to admission to and/or participate in and/or occupy seating at an Event
TDC Ticketing Application Gateway System: The API created by TDC that enables "real time" Internet
ticketing operations including logic that provides for best seat retrieval, performance acceptance and the ability
to sell a Ticket via the Internet.
TDC Network: The distribution network that links all Online locations to Client's Ticket inventory and
includes the equipment, software, personnel and procedures established and maintained by TDC.
5. Ticket Sales and Appointment
A. Authorization. Client grants to TDC the authority to sell, on behalf of Client, Tickets through the
TDC Network for Events held at Client's Facility. Client warrants that it has the right to grant such
selling privilege to TDC. Client will make Tickets available on the TDC Network.
B. Ticket Price. Unless otherwise mutually agreed upon, all Tickets sold by TDC will be sold at the
Gross Ticket Price. Client acknowledges that TDC does not guarantee that any minimum or fixed
number of Tickets will be sold.
6. Ticket Sales Procedures.
A. TDC Services. TDC agrees to act as Client's agent for Online Ticket Sales, and in connection
therewith to promote Online Ticket Sales. A summary of the Online Ticket Sales services, to be
provided in detail by TDC, is as follows:
1. Provide the technology that enables real-time Online Ticket Sales transactions via Client's
In-house Ticketing System and the TDC Ticketing Application Gateway System;
2. Maintain a TDC website where purchasers can buy Tickets Online;
3. Post regularly updated information on Events as furnished by Client;
4. Provide transaction processing for Online Ticket Sales;
5. Provide Online responses to Online consumer service inquiries; and,
6. Provide software support for technology under the same terms and conditions as Client's
then -current Software Support Agreement with TDC or subsidiary.
B. Chargebaeks. All Online sales of Tickets will be charged to Visa, MasterCard, American Express
and any other credit card accepted by TDC. Client agrees to pay all credit card chargebacks for the
unrecovered sum of all Tickets sold through TDC which sales resulted in a credit card chargeback to
TDC and were not a result of TDC"s negligence. TDC will have the right to deduct such chargebacks
through the settlement of funds as outlined in this Agreement. If settlement funds are not sufficient in
which to offset such chargebacks, TDC will have the option to continue deducting chargebacks from
subsequent settlement funds or invoice Client for said "chargebacks". Client agrees to pay all
.,uwum i eater vt ron t..oums — version 1.0
Released 11-30-04 Page 4of 10
chargeback invoices within 15 days of receipt. 'I DC will famish Client with all documentation
concerning customer chargebacks pertaining to Client's Events. TDC will also certify that it has
taken all commercially reasonable steps to collect such chargebacks.
Client acknowledges that due to banking regulations, standard chargebacks under this Agreement may
occur up to 18 months from the date in which a Customer has purchased a Ticket through the TDC
System. Those chargebacks which were a result of fraud have no timeframe limitation on Customer's
ability to recover such charges.
C. Client's Services. Client will provide all fulfillment services consisting of the printing and
distribution of Tickets following all Online Ticket Sales. Subject to the Client's normal practice
Tickets purchased Online will, al the purchaser's request, be mailed by Client to purchaser, and Client
will be responsible for all costs of mailing such Tickets. All other Online Ticket Sales will he held for
the purchaser at a "Paid Reservations" window at the Facility Box Office or such other procedure that
the Facility uses to admit such purchasers.
D. Cancellations/ Exchanges/ Refunds. If an Event is cancelled or closed after Tickets have been sold
Online, Client agrees to assume all responsibilities with regard to refunds, exchanges and/or
resululion of customer inquiries or issues. Ticket purchasers who contact TDC regarding Event
cancellations will be directed to contact Client. TDC will refund or exchange tickets as directed in
writing by the Client for ticket sales which were sold through TDC distribution channels, 'I DC will
have the right to request and receive funds required to fulfill a cancellation request by Client before
the credits are issued to the Ticket purchasers. Client will be responsible for all credit card
chargebacks with respect to cancellations, and agrees to reimburse TDC promptly for any
chargebacks as outlined above. In the event of any cancellation, TDC may agree to refund all or a
portion of its per -Ticket Customer Service Charges. 'CDC and Client agree to inform customers of
this refund policy.
Financial Conditions.
A. Credit Card Commissions. A credit card fee on all Online transactions processed through the TDC
Ticketing Application Gateway System will be paid by Client to TDC in accordance with the terms in
Section 3 of this Agreement.
B. Customer Service Charge, A Customer Service Charge will be imposed on all Online Ticket Sales.
The amount of the Customer Service Charge to be imposed will be in accordance with Section 3
unless otherwise mutually agreed upon in writing by TDC and Client.
C. Per -Order Processing Charges. A Per -Order Processing Charge will be imposed on all Online
Ticket Sales. The amount of the Per -Order Processing Charge to be imposed will be in accordance
with Section 3 unless otherwise mutually agreed upon in writing by'I DC and Client.
D. Taxes.
1. Products and Services. Client will be responsible for the payment of any and all business
licence fees, gross receipt taxes, and personal properly, sales, or use taxes based on the
products and/or services provided to Client by'I DC pursuant to this Agreement Chom will
promptly reimburse TDC for any and all such taxes paid by TDC In any Tax authority on
behalf of Client, including penalties and interest thereon, and including any and all expenses
/including attorneys' fees) or damages that result from a failure by Client to properly remit or
reimburse TDC for such taxes.
2. Ticket Sales. If any governmental entity imposes a sales, excise, use, amusement,
entertainment or other lax or assessment or charge on the admission. ficket, right to occupy
a seat at an Event. the Client is responsible for determining any required tax or assessment,
ensuring that the tax or assessment is included in the face value of the Ticket or in the fall
Ticket purchase price, and that such tax information is provided to TDC. 1 ax amounts are
Lincoln Center Of Fort Col lins -version LO
Released 11-30-04 Poge 5 of 10
included in the Gross Ticket Proceeds at the time of settlement. Client is responsible for
remitting any such tax to the appropriate taxing authority and make, execute, and complete
any and all reports or returns required by law. if TDC is required by any tax authority to pay
and does so pay any applicable taxes on behalf of Client, Client will promptly reimburse
TDC for any and all taxes paid by TDC to any tax authority, including penalties and interest
thereon, and including any and all expenses (including attorneys' fees) or damages that result
from a failure by Client to timely remit or reimburse TDC for such taxes. If TDC is held
responsible for any such taxes or assessments, TDC at its sole option may terminate this
Agreement on 10 days written notice unless Client agrees in writing to promptly reimburse
TDC for the amount of such taxes or assessments.
E. Account Procedures.
1. TDC will make settlement and transfer funds for Applicable Revenue collected by TDC for
each Event for all Online Sales in accordance with Section 3.
2. Each payment made to Client by TDC will be accompanied by TDC's customary remittance
report. Such reports will form the basis for settlement between the parties, and will be
conclusive as to any amounts owed to Client by TDC unless Client submits a written
objection to TDC within 10 business days after receipt of any such report, setting forth in
reasonable detail the respects in which Client believes the report to be incorrect.
3. If any third -party claim is duly presented to TDC against any or all of the Ticket sale
proceeds collected by TDC for an Event prior to the remittance thereof to Client, TDC may,
in its sole discretion, withhold remittance of those Ticket sale proceeds to Client until such
time as the claim is withdrawn or otherwise disposed of to TDC's reasonable satisfaction.
8. Advertising. TDC may list Events in its Online promotional displays and may otherwise promote and
advertise the Client, Facility and any Events in advertisements placed directly by TDC or in conjunction with
others. In connection therewith, TDC may use the name of Client, all Events, the Facility and all performers,
artists and other persons involved in the Events.
9. Other Obligations of TDC.
A. Confidential Data. Client's Inventory Data and Ticket purchase data is confidential. TDC agrees
not sell or rent information about Client and/or Client's customers to any third parties. TDC may,
however, perform statistical analysis in connection with Online Ticket Sales of its clients and share
that information with current and prospective advertisers, and other interested third parties. This
information is aggregated data only and contains no personally identifiable information associated
with Client and/or Client's customers.
B. Sales Data. Fallowing each Online "Picket Sale, TDC will transmit all pertinent transaction
information to Client's In-house Ticketing System.
10. Other Obligations of Client.
A. Ticket Availability. Client agrees that all Available Seats will be open for sale Online and will be
available for Online Ticket Sales by TDC's Ticketing Application Gateway System at the same time
they are first available for sale by Client. Client agrees that it will honor or cause to be honored all
Tickets sold in accordance with this Agreement by Ticket.com for all Events.
B. Access to Inventory Data. Client agrees to, at all times during the term of this Agreement, maintain,
at its expense a data transmission line for the purpose of permitting TDC to access the Inventory Data
on a real-time basis. Such data transmission line will match the specifications provided by TDC.
Client will provide TDC's Ticketing Application Gateway System such real-time access to Inventory
Data to engage in Online Ticket Sales, 7 days per week, 24 hours per day with the exception of
Scheduled Downtime for system backups and maintenance.
Lincoln Center Of Fort Collins— version 1.0
Released 11-30-04 Page 6 of 10
C. TDC Ticketing Application Gateway System. Client agrees to keep operational the TDC Ticketing
Application Gateway System on Client's In-house Ticketing System. Failure by Client to keep the
TDC Ticketing Application Gateway System operational will result in the inability to sell Tickets
online.
D. Event Set-up. Client will adhere to specific data set-up standards to ensure an appropriate audit trail
for settlement verification and consistent presentation of information for Online Ticket Sales.
E. TDC Logo. Client agrees to display, on Client's web site, the TDC logo and to provide a link to the
TDC web site (www.tickets.com). Accordingly, TDC hereby grants to Client for the Term of this
Agreement and any extension thereof, a limited, revocable, royalty free, worldwide license to display
the TDC logo on Client's web site as provided herein. Client acknowledges that all right, title and
interest in and to such logo will remain in TDC and Client further agrees to remove such logo from
Client's web site upon termination of this Agreement.
F. Connectivity. Client will provide necessary connectivity and bandwidth between Client's ticketing
system and the Internet to effectively and efficiently sell Client's Event Tickets to Online Ticket
buyers.
11. Event Notification. No less than 3 business days prior to the time when Tickets for an Event are to go on sale
Online, Client will provide to TDC, in writing or an appropriate electronic format, all necessary information
with respect to the Event for the proper sale of such Tickets Online. 'CDC requires advance notice for high
demand events, new venues, new discounts and new fulfillment methods in order to ensure the proper sale of
such Tickets Online. TDC may rely upon and will not assume any responsibility for the accuracy of the
information famished by Client pursuant to this Section.
12. Indemnification.
A. Client. To the extent permitted by applicable law, Client will defend, indemnify and hold TDC
harmless from and against any and all claims, suits, loss, damages, liabilities, costs, and expenses,
including reasonable attorneys' fees, resulting directly or indirectly from (i) any breach of Client's
covenants, warranties and representations under this Agreement, and (ii) any personal injuries to
persons holding Tickets arising out of the claimant's presence at the Facility and (iii) Client's
intentional or negligent acts, mistakes, or omissions in performance of this Agreement. TDC will
give Client prompt notice of any claim or suit coming within the purview of this indemnity, will
furnish Client with all relevant facts in its possession or under its control, and will cooperate fully
with Client, at Client's sole expense, in the defense of any matter covered by this indemnity.
B. TDC. TDC will defend, indemnify and hold Client harmless from and against any and all claims,
suits, loss, damages, liabilities, costs and expenses, including reasonable attorneys' fees, resulting
directly or indirectly from (i) any breach of TDC' covenants, warranties and representations under this
Agreement and (ii) TDC' errors in the sale of Tickets, provided, however, that such errors were not
caused by any acts or omissions of Client, or its respective agents or employees. Client will give
TDC prompt notice of any claim or suit coming within the purview of this indemnity, will furnish
TDC with all relevant facts in its possession or under its control, and will cooperate fully with TDC,
at "I DC' sole expense, in its defense of any matter covered by this indemnity.
C. Survival. The respective indemnification rights and obligations set forth herein will continue in full
force and effect notwithstanding the expiration or termination of this Agreement.
13. Default. If either party defaults in the performance of any covenants or agreements contained herein and such
default continues for a period of 60 days after written notice of default has been given to the defaulting party,
the non -defaulting party will have all the remedies available at law or in equity and, in addition, may terminate
this Agreement immediately upon notice to the defaulting party.
14. Independent Contractors. Both parties are independent contractors. Nothing in this Agreement will be
Lincoln Center Of Fort Collins— version 1.0
Released 11-30-04 Page 7 of 10
deemed to create an agency, partnership, joint venture, or employerfemployee relationship. Neither party will
be liable for the debts or obligations of the other.
15. Compliance with Law. Client and TDC will each comply at its own expense with all laws, regulations and
ordinances applicable to each of them in connection with their performance under this Agreement, and will
each obtain and maintain (at their own expense) any permits, consents and licenses required by any applicable
law, regulation, statute, or ordinance.
16. Limitation of Liability. In the event of any breach of this Agreement by either party the limit of any claim or
loss will be no greater than the proven financial loss sustained by virtue of the breach. In no event will either
party or its officers, agents or employees be liable, with respect to any subject matter of this Agreement under
any legal or equitable theory, for any incidental, indirect, consequential or punitive damages. Occasional short-
term interruptions of service will not be cause for any liability or claim, nor will any such occasion render
either party in breach under this Agreement.
17. Assignment.
A. Client. Client may not assign, transfer, pledge, or encumber all or any part of its interest in this
Agreement, or any proceeds from the sale of Tickets without TDC's prior written consent, which
consent will not be unreasonably withheld or delayed. In such an event, Client's successor will
assume all the rights and obligations of Client under this Agreement.
B. TDC. TDC may assign or transfer this Agreement, and any revenues or other benefits receivable by
TDC hereunder to TDC's lender(s) or any other entity or person, provided that no assignment will
relieve TDC of its obligations hereunder.
C. Successors. Subject to the foregoing provisions, this Agreement will be binding upon and inure to
the benefit of the parties and their respective successors and assignees.
18. Force Majeure. Except for the payment of any amount due pursuant to this Agreement, neither party will be
liable to the other for damages in the event of any loss, damage, claim, delay or default arising by reason of
Acts of God, storm, fire, flood, earthquake, labor disturbance (including strikes, boycotts, lockouts, etc.), war
or terrorism, vandalism to TDC's computer system, civil commotion, shortages or unavailability of labor,
present or future governmental law, ordinance, mle, or regulation, disruption of postal, banking, electrical,
telephone or other utility service, or other cause beyond the control of the party sought to be charged.
19. Disclaimer of Warranties. TDC disclaims any and all representations; and warranties, including without
limitation, implied warranties of merchantability or fitness for a particular purpose, with respect to the services
provided hereunder. -
20. Miscellaneous.
A. Notices. Any notice or other communication to'I'DC or to Client will be deemed properly given if
such notice or communication is in writing and is sent by first class mail (airmail, if overseas),
postage pre -paid, return receipt requested, by facsimile (if receipt confirmed within 48 hours), or by
traceable courier service (such as UPS or FedEx) to the address set forth below or such other address
as each party may designate by notice given in accordance with this Section.
B. Severability. If any one or more of the provisions of this Agreement or the application of any such
provision to a specific situation will be held invalid or unenforceable, such provision will be modified
to the minimum extent necessary to make it or its application valid, and the enforceability of all other
provisions of this Agreement and all other applications of such provisions will not be affected
thereby.
C. Governing Law. This Agreement will be governed by the laws of Colorado.
D. Entire Agreement. Except as provided in the ProVenueMax Software Support and License
Lincoln Center Of Fort Collins — version 1.0
Released 11-30-04 Page 9 of 10
Agreement Number A101-922 and the ProVenueMax Third Party Hardware and Software Purchase
Agreement Number A100-922, this Agreement constitutes the entire agreement and understanding
between the parties and supersedes any and all prior agreements, written or oral, relating to the subject
matter hereof. This Agreement may not be altered or amended in any manner except by a written
instrument signed by the duly authorized representative of each party. The headings contained in this
Agreement are inserted only as a matter of convenience and reference, and in no way define, limit or
describe the scope or intent of this Agreement.
E. Counterparts. This Agreement may be executed in any number of counterparts, each of which,
when executed, will be an original and all of which together will constitute one and the same
Agreement.
F. Confidentiality. Each party acknowledges and agrees that the specific terms of this Agreement will
be maintained on a confidential basis and will not be disclosed to any third party except to such
party's legal advisors, or unless required by law, without the prior written approval of the other.
G. Protection of Proprietary Interests. Each party agrees that all code, inventions, algorithms, know-
how, documentation and all other business, technical and financial information obtained from the
other party during the Term of this Agreement are the confidential and proprietary property of the
disclosing party ("Proprietary Information" of the disclosing party). Except as expressly provided
herein, the receiving party will hold in confidence and not use or disclose any Proprietary Information
of the disclosing party and will similarly bind its employees in writing. The receiving party will not
be obligated under this Section with respect to information the receiving party can document: (i) is or
has become readily publicly available without restriction through no fault of the receiving party or its
employees or agents; (ii) is received without restriction from a third party lawfully in possession of
such information and lawfully empowered to disclose such information; or (iii) was rightfully in the
possession of the receiving party without restriction prior to its disclosure by the other party; or (iv)
was independently developed by employees or consultants of the receiving party without access to
such Proprietary Information.
H. Authority. Each party represents and warrants that it has full right and authority to enter into and
perform this Agreement in accordance with the terms hereof and that this Agreement is a binding
agreement of each party. Each party fully understands and accepts the obligations imposed hereunder
without reservation.
Compliance with Privacy Laws. Client agrees to comply with all privacy laws with respect to the
personal information of ticket purchasers that is collected by TDC and subsequently shared with
Client for any reason. Client agrees to indemnify and hold harmless TDC with respect to Client's use
of the personal information of ticket purchasers that is collected by TDC and subsequently shared
with Client for any reason.
. lnuom �cmer vt tort U0111ns — version 1.0
Released 1 1-30-04 Page 9 of 10