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1.0 Introduction.

THIS PROFESSIONAL SERVICES AND LICENSING AGREEMENT (this “AGREEMENT”) is entered into the executed date (the “EFFECTIVE DATE”), defined in the attached Proposal (Schedule A-Proposal), by and between Agile Ticketing Solutions, LLC, a Tennessee limited liability Company having an address of 3810 Central Pike, Suite 301 Hermitage, Tennessee 37076 (the “COMPANY”), and Organization referenced in the attached Schedule A-Proposal, having an address defined in the Attached Schedule A-Proposal for purposes of this Agreement, shall be referred to as the “PRINCIPAL.”

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1.1 Definitions

“Events” are any events, activities, or resources to which Principal is authorized to sell or provide access and for which Principal elects to use Company’s services.

“Tickets” or “Ticketing” are any form of ticket, pass, reservations, tuitions, membership, certificates, coupons, merchandise, or confirmations that allow the holder access to, participation in, or use of Principal’s Events.

“Schedule A” is the proposal that is presented within this document. Schedule A describes the service and the estimated cost of the service(s).

“Ticketing Software” or “Software” is the application, both web hosted at “http://portal.agiletix.com” and/or the PC-Based loaded application that can be acquired at “http://www.agiletix.com/downloads”. Once accessed, the Principal may setup Events, extract website entry points, extract Event, financial or organizational reports, process memberships, produce Event passes, activate box office services or any other features annotated in Schedule A of this document.

“Patron” refers to any person or organization committing to the purchase of Tickets.

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2.0 Agreement with Terms and Conditions.

This Agreement sets forth the terms and conditions that apply to use of Ticketing Software by the Principal. By using the Ticketing Software, Principal agrees to comply with all of the terms and conditions hereof or any referenced Schedules.

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3.0 Changes in Terms and Conditions.

The Company has the right to change or discontinue any aspect or feature of the Ticketing Software, including, but not limited to, content, hours of availability, and equipment needed for access or use, at any time. The Company has the right to change or modify the terms and conditions applicable to Principal’s use of the Ticketing Software, or any part thereof. Such changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by means including, but not limited to electronic or conventional mail, or by any other means by which Principal obtains notice thereof. If Principal does not approve of the changes in terms and conditions proposed by the Company, Principal can terminate this Agreement and discontinue its use based on the early termination procedures outlined in section 8.1 of this agreement. Notwithstanding the foregoing, the Company shall not have the unilateral right to change any of the terms contained in Schedule A to this Agreement.

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4.0 Conduct of Principal.

4.1 Interests.

Principal is a producer, promoter, presenter, or manager of events. Under this Agreement, Principal contracts with the Company for the services described above. Principal affirms that it has full power and authority to offer, sell, and honor the tickets to the events it offers via the Ticketing Software.

4.2 Responsibility of Principal.

Principal agrees to accept, honor, and fulfill ticketing commitments that have been confirmed by the Ticketing Software.  When each individual ticket purchase receives credit card authorization, the Ticketing Software generates a confirmation message with a unique customer number and a confirmation number.  Verification of the customer name, address, customer number, membership status and/or confirmation number at or prior to the event is the responsibility and at the discretion of the Principal.

4.3 Lawful Use.

Principal shall use the Ticketing Software for lawful purposes only.  Principal shall not post or transmit through the Agile Ticketing Solutions any material which:

i) violates or infringes in any way upon the rights of others;

ii) is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable;

iii)  encourages conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any la

4.4 Uploading of Intellectual Property.

Principal shall not upload, post, or otherwise make available with the Ticketing Software any material protected by copyright, trademark, or other proprietary right, without the express written permission of the owner of the copyright, trademark, or other proprietary right, and the burden of determining that any material is not protected by copyright rests with Principal. The Principal shall be solely liable for any damage resulting from any infringement of copyrights, proprietary rights, or any other harm resulting from such a submission.  Principal hereby grants the Company the right to copy, publish, and distribute any material made available on the Ticketing Software by Principal solely for purposes of providing services to the Principal under this Agreement.  Any other use of material provided by Principal will require written permission from the Principal.

 

5.0 Disclaimers and Limitation of Liability.

THE COMPANY OWNS THE DESIGN AND FUNCTION OF THE TICKETING SOFTWARE AND WEBSITE (agileticketing.net). PRINCIPAL ACKNOWLEDGES THAT THE COMPANY DOES NOT COMMIT TO SUPPORTING OR SPECIFYING ANY PARTICULAR BROWSING OR OPERATING PLATFORM, AND THAT THE COMPANY HAS THE RIGHT AT ANY TIME TO REVISE AND MODIFY ITS WEB PAGES AND SERVICE, RELEASE SUBSEQUENT VERSIONS THEREOF, AND/OR ALTER FEATURES, SPECIFICATIONS, CAPABILITIES, FUNCTIONS, AND OTHER CHARACTERISTICS OF THE TICKETING SOFTWARE.

 

5.1 Representations and Warranties.

Each party represents, warrants, and covenants to the other that:

5.1.1 it is duly organized and in good standing under the laws of the state indicated as its state of organization in the first paragraph of this Agreement and has the power to enter into and perform this Agreement;

5.1.2 this Agreement has been duly authorized, executed, and delivered on behalf of such party and constitutes the legal, valid, and binding agreement of such party, enforceable in accordance with Its terms; and

5.1.3 the entering into and performance of this Agreement will not violate any judgment, order,  law, regulation, or agreement applicable to such party or any provision of such party’s charter or bylaws or similar organizational agreement, or violate the rights of any third party, 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 interests of such party, pursuant to any instrument to which such party is a party or by which it or any of its assets may be bound.

 

5.2. Risk of Loss.

Except as otherwise set forth herein, Principal shall be responsible for any and all risks, claims, expenses (including reasonable attorneys’ fees but only if, and the extent, awarded by a court of competent jurisdiction) or causes of action from any third party caused by Principal and its employees related to their use, possession or operation of the Software and/or any rented or leased Point-of-Sale (POS), ticket printers, hand-held ticket scanning equipment, internet gateways (mobile cellular internet gateways) or any other technological hardware associated with the use of ticket sales.  Company shall be responsible for any and all risks, claims, expenses (including reasonable attorneys’ fees but only if, and the extent, awarded by a court of competent jurisdiction) or causes of action from any third party caused by Company, its employees, software and hardware.

 

5.3 Taxes.

5.3.1 Principal shall be responsible for the payment of any and all sales, amusement, admissions and other taxes or charges due to any municipality or state as a result of, or in connection with, this Agreement or the Event. Any taxes owed for use of the Companies services will be detailed on the periodic invoice for services.

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5.4 Limitation of Liabilities.

5.4.1 The Company represents and warrants to the Principal that the Company owns and has title to the software and license rights in and to the Software related to the Services. The Services will be undertaken in a professional and workmanlike manner consistent with industry standards; provided, however, that such warranties do not extend or become applicable with respect to any delays, stoppages, or malfunctions which are caused by the acts of any third parties or which are not under or caused by events or causes beyond the control of the Company.

5.4.2 ALL IMPLIED WARRANTIES EXISTING BY OPERATION OF LAW, INCLUDING SPECIFICALLY ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY DISCLAIMED AND NEGATED BY THE EXPRESS WARRANTIES PROVIDED HEREIN.

5.4.3 Neither party shall be under any liability for any loss or for any failure to perform any obligation hereunder due to causes beyond its control, including without limitation, industrial disputes of whatever nature, power loss, telecommunications failure, acts of God, or any other cause beyond its reasonable control.

 

5.5 Compliance with Law.

Both parties will comply with all federal, state, and local laws, regulations, rules, ordinances, and orders of any kind which are applicable to performance of their respective obligations under this Agreement.

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5.6 Further Documents.

The parties will execute and deliver or cause the execution and delivery of all additional documents, in form approved by the other, and will perform or cause the performance of any other acts which the other may deem reasonably necessary or desirable to effectuate the purposes of this Agreement.

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6.0 Indemnification.

6.1 The Principal hereby agrees to indemnify and hold the Company and its successors, assigns, officers, directors, employees, and agents (“Agile Ticketing Solutions’ Indemnities”) against and hold harmless from, any and all liabilities, actions, losses, costs, damages, and expenses, foreseen and unforeseen, including attorney’s and collection fees imposed on, incurred by, or asserted against Agile Ticketing Solutions’ Indemnities occurring as a result of, or in connection with, any breach of any agreement, or misrepresentation by Principal under this Agreement, or arising out of Principal’s or Principal’s employee’s or Principal’s agent’s negligence or misconduct.

6.2 The Company hereby agrees to indemnify and hold Principal and its successors, assigns, officers, directors, employees, and agents (“Principal’s Indemnities”) against and hold harmless from, any and all liabilities, actions, losses, costs, damages, and expenses, foreseen and unforeseen, including attorney’s and collection fees imposed on, incurred by, or asserted against Principal’s Indemnities occurring as a result of, or in connection with, any breach of any agreement, or misrepresentation by the Company under this Agreement, or arising out of the Companies or Companies employees or Companies agent’s negligence or misconduct and any claim that the Software or Ticketing Software, when used within the scope of this Agreement. Infringes, violates or misappropriates a valid third-party patent, copyright or other proprietary right.

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7.0 Services and Fees.

The Company provides online ticketing services via the World Wide Web. The services under this Agreement include:

• Displaying lists, descriptions, and pricing of Principal’s events.

• Membership Benefits Management

• Initiating Agile Ticketing Solutions from the Principal’s Website and served from agileticketing.net or any domain name or IP address currently being provided by the Company

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7.1 Fees, Charges, and Payment.

7.1.1 For its services, the Company applies annual maintenance and transaction fees to Principal’s account which can be covered

1. i) entirely by Principal,

2. ii) entirely by Patron, or

iii) by a combination of Principal and Patron.

A complete breakdown of transaction and service fees are available in Schedule A of this document.  Principal agrees that the Company will invoice the Principal for fees owed based on the billing cycle defined in section 7.2 (Billing Cycle) of this agreement.

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7.1.2 The Principal agrees that the Company has the right to suspend service for unpaid fees. If an outstanding balance that is over ninety (90) days old is not made current, service can be suspended at the Company’s discretion. Notice of suspension of service will be given in writing five (5) business days prior to suspension of service. The Company may also modify the merchant services to its own provider if the account becomes more than 90 days delinquent. Merchant services modification shall not require notice and is at the sole discretion of the Company.

 

7.1.3 Any outstanding balance that is over sixty (60) days old shall be subject to any costs of collection (including reasonable legal fees) and shall bear interest at the rate of 1.5% per month until paid.

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7.2 Billing Cycle. (See also Merchant Services)

An invoice for fees due the Company will be emailed to the email address provided in the Accounting/Billing Information section of the Schedule A-Proposal on or near the billing cycle defined in the Schedule A-Proposal. This invoice will include fees for transactions and services that occurred between the 1st and last day of the month prior to the month of the invoice. Payments of invoices are due upon receipt. All funds will be payable in U.S. dollars (USD).

7.3 Credit Cards Processing

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7.3.1 If the Principal is providing the Company merchant account information to use the Principals merchant account items 7.3.1.1 – 7.3.1.6 apply

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7.3.1.1        The Company will provide technology for and authorizes the Principal to utilize the technology to interface with SafeSave, Authorize.net, BlueFin, Vital / VisaNet / TSYS credit card processing network. There will be no additional charges assessed by the Company for use of this technology.

 

7.3.1.2        The Principal authorizes the Company to host the merchant information for purposes of processing credit card payments for sales conducted for the Principal.

 

7.3.1.3        The Company will use its best effort to ensure the security of credit card data and merchant information maintained within the Company system. Except in cases of negligence by the Company, the Principal assumes the risk fees and penalties associated with theft and/or loss of credit card related data from the Company system.

 

7.3.1.4        The Company will use its best efforts to ensure that no fraudulent or stolen credit cards are used to purchase Items through the Company’s Systems.  Except in cases of negligence by the Company, the Principal assumes the risk of credit card sales and related fees and penalties associated with the use of fraudulent or stolen credit cards.

 

7.3.1.5        All charge back disputes and any fees or refunds given due to such action will be the responsibility of the Principal.

 

7.3.1.6        If Principal’s account becomes more than 60 days delinquent, Principal agrees that the Company has the authority to modify the merchant services account to the Company’s account until account delinquency has been satisfied.

 

7.3.2          If the Principal is using merchant services provided by the Company items 7.3.2.1 – 7.3.2.7 apply

 

7.3.2.1        Service Fees and Credit Card processing fees due to the Company will be automatically deducted from Principal’s proceeds prior to the Company releasing the funds to the Principal. Revenue collected by the Company on behalf of the Principal shall be released on the Tuesday following the completion of the event(s) or monthly for non-date specific items. Principal understands and agrees that fees cannot be released earlier than the event occurring.

 

7.3.2.2        Principal hereby agrees that Customers are entitled to full refunds of the face value of the ticket for cancelled, postponed, or relocated events.  Principal accepts responsibility for all refunds related to cancelled, postponed, or relocated events.

 

7.3.2.3        Principal hereby agrees that Customers are entitled to full refunds for errors caused by Principal that prevent Customers from being admitted to the Event(s) or being allowed to sit or otherwise be located in the location specified on Customer’s Ticket or the Admission Report.

 

7.3.2.4        If an Event or Events are cancelled, postponed, relocated, or a Customer or Customers are otherwise entitled to a refund(s), service fees stated in Schedule A of this contract ARE NOT refundable to the ticket buyer.  If the Principal chooses to reimburse the consumer for the entire ticket purchase (including fees) the Principal will accept the responsibility to pay any applicable fees to the Company.

 

7.3.2.5        Principal agrees to be responsible for all chargeback claims and associated fees not related to an error on the part of Company. Said charges will be taken out of any pending remittance or invoiced to Principal for payment upon receipt of invoice.

 

7.3.2.6        Principal agrees to procure a signature of ticket buyers who receive their tickets via hard or soft will call and supply Company with that signature upon request.

 

7.3.2.7        Principal agrees to make every effort to dispute chargeback claims with ticket buyer verification information.

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8.0 Term and Termination.

This Agreement shall commence on the Effective Date and shall continue in full force and effect for contract term defined in the Schedule A-Proposal unless otherwise terminated early.

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8.1 Early Termination

(a) The term of this Agreement will commence on the Effective Date hereof and continue in effect for the then applicable term unless terminated early:

(i) by either party upon the filing of a petition under the United States Bankruptcy Act or any other insolvency law by or against the other party; or

(ii) by either party upon 30 days’ written notice to the other party of a material breach by the other party of any of the provisions of this Agreement, during which period the breach remains unremedied; or

(iii) By either party upon 90 days written notice to the other.

(b) Except as set out herein, termination of this Agreement by either party will not affect or impair any rights or obligations that have accrued prior to the effective date of termination.  Neither party, by electing to terminate this Agreement, will be deemed to have elected a remedy or waived any cause of action.

(c) In the event the Company issues the notice for early termination, for any reason other than breach of this Agreement, the Principal has the right to continue to utilize the software and services for an additional ninety (90) after the effective date of termination defined as the termination period. All conditions of this agreement will remain in effect during this termination period.

(d) In the event that the Principal issues the notice for early termination, for any reason, other than breach of this Agreement, the Company retains the right to charge the entire amount of any concessions extended at the beginning of the contract; including implementation discounts.

(e) In the event the Company is unable to provide its technology and service to Principal, for any reason other than breach or termination of this agreement, the Principal has the right to continue to utilize the latest version of the software for up to six (6) months from the time of the termination notification. In this event the Principal agrees to pay all fees including but not limited to hosting and maintenance of the site during this period. The Company agrees to disclose and work with the Principal to establish a relationship with all necessary third-party groups for the purpose of establishing continued service during this period.

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8.2 Autorenewal of Customer Agreement

Unless earlier terminated by either party as described above, this Agreement will shall automatically renew for terms of one (1) year each year thereafter, unless either party notifies in writing the other party of its intention to terminate this Agreement no later than thirty (30) days prior to the then applicable expiration date of this Agreement. The Company agrees to attach any new rate schedule, if applicable, to this Agreement at the time of any renewal. The Company will notify the Principal in writing sixty (60) days prior to the then applicable expiration date of this Agreement of any change in pricing schedule effective for the next renewal period.

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9.0 License Grant.

1. i) The Company hereby grants to Principal a limited, non-transferable license to use the Software for the sole and exclusive purpose of marketing the Principal’s events and other products on the World Wide Web (WWW).

2. ii) Principal shall have no rights to:

3. a) sublicense the Software, make the Software available for distribution, nor distribute the Software to any third party; however, Principal may sell ticket services to other performing arts presenters or other organizations at the fees set forth herein;

4. b) create derivative works based on the Software, nor adapt, reverse engineer, decompile, disassemble, or modify in whole or in part any of the Software;

5. c) create copies of the Software, except for archival or backup purposes, in which instances all titles, trademarks, copyright, proprietary, and restricted rights notices shall be reproduced thereon, and all such archival or backup copies shall be subject to the terms of this Agreement;

iii) Except for the license granted hereunder, all rights, title and interest, including without limitation, any and all rights existing under patent law, copyright law, trade secret law, trademark law, unfair competition law, or other similar rights (the “Intellectual Property Rights”) in and to the Software are retained by the Company

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10.0 Confidential Information

Each party acknowledges that it will have access to, be making use of, acquiring and adding to, confidential business information of special and unique value, including, but not limited to, trade secrets of the other party. A trade secret is any information that can be used in the operation of a business or other enterprise and that is sufficiently valuable and secret to afford an actual or potential economic advantage over others, including financial projections and budgets, historical and projected sales, Principal and prospective Principal information, capital spending budgets and plans, the names and backgrounds of key personnel, personnel training techniques and materials and other information that the other party has or may provide in connection with the performance of its obligations under this Agreement (collectively, the “Confidential Information”). Each party (the “Recipient”) receiving or having access to the Confidential Information of the other party (the “Disclosing Party”) agrees that it will not, copy, disclose, distribute or make use of any Confidential Information of the Disclosing Party for the Recipient’s own benefit or for the benefit of a business or entity other than the Disclosing Party without the prior written consent of the Disclosing Party and each party will maintain the confidentiality of the Confidential Information of the other party.  Each party shall use at least the same degree of care in safeguarding the other party’s Confidential Information as it uses in safeguarding its own Confidential Information, but in no event shall a party use less than due diligence and care.  At the request of the Disclosing Party, the Recipient will return to the Disclosing Party all memoranda, notes, copies, drawings, abstracts, records or other documents, and all copies thereof, concerning any Confidential Information of the Disclosing Party.  All Patron information including name, address, phone, email address, order history, payment information is also considered Confidential Information and is property of the Principal.  Company will provide Principal with a copy and destroy all Patron information upon termination of this agreement.

The terms of the confidential treatment of the Confidential Information will not apply to any information which (a) is or becomes publicly known through no wrongful act of the Recipient, (b) is rightly received by the Recipient from a third party owing no obligation of confidentiality to the Disclosing Party, or (c) the Disclosing Party in writing. This Section 11.0 will survive any termination of this agreement and remain in full force for a period of three (3) years after the termination date of this agreement.

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11.0 Entire Agreement.

This Agreement, and any operating rules for Agile Ticketing Solutions’ established by the Company, constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes all previous written or oral agreements between the parties with respect to such subject matter.

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12.0 Mediation and Controlling Law

1. The parties agree to attempt in good faith to resolve promptly through negotiation any claim, dispute or controversy (collectively, a “claim”) between the parties and arising out of or relating to this Agreement. In the event of a claim, Representatives of each party agree to meet at least once and attempt to resolve the claim. For such purpose, either party may request the other to meet within fifteen (15) days at a mutually agreed upon time and place. If the parties are not able to conduct a meeting within said fifteen (15) day period or to resolve the claim within thirty (30) days after their first negotiating meeting (or such longer period of time as may be mutually agreed upon), either party may than refer the claim to non-binding mediation conducted by a mutually acceptable mediator. If a mediator cannot be agreed upon by the parties, each party shall designate a mediator and those mediators shall select a third mediator who shall act as the neutral mediator, assisting the parties in attempting to reach a resolution. All parties to the mediation shall share equally in its cost. If the claim is resolved successfully through the mediation, the resolution will be documented by a written agreement executed by all parties to the claim. If the mediation does not successfully resolve the claim, the mediator shall provide written notice to the parties reflecting the same, and the parties may then proceed to seek an alternative form of resolution of the claim, in accordance with the remaining terms of this agreement and other rights and remedies afforded to them by law.

2. Any contractual requirement of filing a notice of claim with respect to the dispute submitted to mediation shall be suspended by mutual agreement until the conclusion of the mediation proceedings.

3. Any controversy, claim, or dispute arising out of or relating to this Agreement, or the breach thereof, that cannot be settled by good faith negotiation between the parties will be submitted for non-binding mediation to a mediator selected by the American Arbitration Association (“AAA”) or as may be agreed by the parties.If complete agreement cannot be reached within three (3) days of submission to mediation, any remaining issues will be settled by arbitration administered by the AAA in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

4. This Agreement shall be construed in accordance with the laws of the State of Tennessee, without regard to its conflict of laws rules.

5. Both the Company and the Principal agrees to waive its rights to a trial by jury.

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13.0 Notices

All notices required or contemplated under this Agreement must be in writing and will be given either by personal delivery, facsimile, Federal Express or a similar reputable national overnight courier, or by United States registered mail (postage prepaid, return receipt requested) to the appropriate party at the address listed below.  Any notice given hereunder will be deemed to have been given and will be effective upon personal delivery, facsimile (with written confirmation of receipt), or, if by national overnight courier, one business day after deposit with the courier, or, if mailed, on the date three business days after deposit in the United States mail of a properly addressed envelope.  Each of the parties may specify a different address or addresses by giving proper notice under this Agreement to the other party at such party’s address listed below.

1. a) If to Company:

Agile Ticketing Solutions, LLC

 

3810 Central Pike, Suite 301

Hermitage, Tennessee 37076

Federal Tax ID #:  62-1788903

 

Office: 615-360-6700

accounting@agiletix.com

Attention:   CEO: Richard Steward

 

Telephone: (615) 360-6700

Fax: (615) 360-6700

14.0 Assignment

1. Neither party may assign this Agreement without the prior written consent of the other party, except that either party may, without the consent of the other, assign the Agreement to a controlled subsidiary of that party or a purchaser of all or substantially all of that party’s assets used in connection with performing this Agreement, provided the assigning party guarantees the performance of and causes the assignee to assume in writing all obligations of the assignor under this Agreement. The rights and obligations of this Agreement shall bind and benefit any successors or assigns of the parties.

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15.0 Miscellaneous

1. No waiver by either party of any failure by the other party to keep or perform any covenant or condition of this Agreement will be deemed a waiver of any preceding, succeeding, or continuing breach of the same, or any other covenant or condition.

2. The provisions of this Agreement will be deemed severable and the invalidity or enforceability of any provision will not affect the validity and enforceability of the other provisions hereof.If any provision of this Agreement is unenforceable for any reason whatsoever, such provision will be appropriately limited and given effect to the extent that it may be enforceable.

3. Section headings are for the convenience of the parties only and will have no legal effect whatsoever.

4. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Delivery by facsimile of an executed copy of this Agreement will be deemed actual delivery and such facsimile will be deemed effective and enforceable as if it were an original.

IN WITNESS WHEREOF, the parties have caused their duly authorized representatives to execute this Agreement as indicated on the proposal, exhibit A, or any other signature-required documents.