Services Agreement

LAST UPDATED: AUGUST 2016

IN THIS AGREEMENT entered into this ____ day of ________, 20__, between Attendease, as defined in the “Contracting Party” section of the Terms of Use, found here https://attendease.com/tou/, and __________________________________________(the “Client”), the parties agree as follows:

1. SERVICES AGREEMENT

1.1 Application

The following agreement sets forth the terms and conditions upon which Organizers can use the Services to create, promote and/or collect sales proceeds for an event selling tickets and/or registrations (this “Agreement”).

1.2 Incorporation by Reference

This Agreement and the rights and obligations contained in this Agreement are in addition and subject to those in the Attendease’s Terms of Use, accessible https://attendease.com/tou/. In the event of a conflict between the rights and obligations contained in the Terms of Use and the rights and obligations contained in this Agreement, this Agreement shall prevail to the extent of the conflict.

2. SERVICES RETAINED

2.1 Description

  1. Client retains the professional services of Attendease to perform the tasks set forth in the separate project statement(s) attached hereto as Schedule “A”, which forms part of this Agreement.
  2. This Agreement shall apply to all project statements attached hereto from time to time and which expressly reference this Agreement.

2.2 Modifications

All modifications to this Agreement shall be in writing and set out from time to time in Schedule “B”, which forms part of this Agreement.

3. PERSONNEL

3.1 Qualified Personnel

Attendease shall execute this Agreement on a best efforts basis, with qualified personnel of its choice, whom it shall have the right to replace at its discretion.

3.2 Non-solicitation

The Parties agree that, during the term of this Agreement and for twelve months thereafter, they will not solicit the services of any staff member of the other Party.

4. ON-SITE SEVICES

4.1 Assitance

Should on-site services be required, Client shall make available to Attendease, during Client’s normal office hours, adequate office space, secretarial services, furniture, office supplies, and computer facilities.

4.2 Access and Secuirty

Should on-site services be required, Attendease’s staff shall observe all applicable Client’s security requirements.

5. PAYMENT METHODS; PAYMENT PROCESS; FEES

5.1 Payment Method

Attendease acts as Organizer’s limited payment collection agent for the purpose of collecting Event Registration Fees through its payment processors (as defined below) (“Attendease Payments”).

5.2 Attendease’s Role

For the avoidance of doubt, Attendease does not and will not provide banking, deposit taking, stored value, insurance or any other financial services to an Organizer other than serving as a limited payment collection agent as set forth below. To provide the Attendease Payments service, Attendease utilizes third party gateways, payment processors, merchant acquirers and/or merchant acquiring banks with which we have relationships (collectively, “Payment Processors”) and both Organizers and Attendease are subject to the rules and regulations of such Payment Processors. For convenience, Attendease shows you a balance of proceeds for your events in your Attendease account Payment Summary, however, that balance merely reflects the amount of Event Registration Fees collected by Attendease and/or the Payment Processors, and represents only a general unsecured claim against Attendease and not a store of value or a deposit/current account.

5.3 Confirmation

Upon an order being placed by an Attendee and confirmed through Attendease, Attendease generates a confirmation message and issues a unique confirmation number for such Attendee’s order. Organizer agrees to unconditionally accept, honor and fulfill all ticketing, registration, merchandise and donation commitments that have been confirmed by Attendease through the Services, and it is Organizer’s responsibility to verify an Attendee’s confirmation number and/or any event restrictions prior to the applicable event.

5.4 Payment Processing

Payment processing occurs directly through our Payment Processing Partners. Within five (5) business days after the successful completion of an event, Attendease will pass along all Event Registration Fees related to such event that have been collected, subject to (i) deduction of all applicable Fees then due and (ii) any other deductions authorized pursuant to this Service Agreement.

5.5 Appointment as Agent

Organizer hereby appoints Attendease, as defined in the Terms of Use, found here https://attendease.com/tou/, as Organizer’s limited payment collection agent solely for the purpose of collecting payments made by Attendees for such events. Organizer agrees that a payment made by an Attendee to Attendease shall be considered the same as a payment made by an Attendee directly to Organizer and Organizer will sell or provide all advertised goods and services to the Attendee as if Organizer had directly received the Event Registration Fees from such Attendee, regardless of whether the Event Registration Fees have yet to be received from Attendease. Organizer agrees that in its role as limited agent, Attendease is authorized to (i) enable Attendees to transfer or upgrade a ticket and/or registration (if such transfers are permitted by Organizer during the event registration process); (ii) hold, disburse and retain proceeds on Organizer’s behalf pursuant to this Agreement; (iii) issue refunds to Attendees as set forth in section 6 below; and (iv) manage credit card chargebacks as set forth in section 5.6 below. In accepting appointment as the limited agent of Organizer, Attendease assumes no liability for any acts or omissions of Organizer and Organizer understands that Attendease’s obligation to pay Organizer is subject to and conditional upon receipt of the associated Event Registration Fees from Attendees. Organizer further authorizes Attendease to delegate its obligations under this Agreement to certain of its affiliated entities both within and outside the United States, provided, that Attendease will remain liable for the discharge of its obligations under this Agreement by such affiliated entities.

5.6 Credit Card Chargebacks/Reversals

Any credit card chargebacks or other transaction reversals initiated against Attendease or its affiliates for any reason (except to the extent they are caused solely by Attendease’s negligence or willful misconduct) with respect to an Organizer’s event and all related credit card association, payment processing, re-presentment, penalty and other fees and expenses incurred by Attendease or its affiliates in connection with such chargebacks shall ultimately be the responsibility of Organizer, and Organizer agrees to promptly and fully reimburse Attendease for such amounts on demand. As part of Attendease’s limited payment collection agency, Attendease will use commercially reasonable efforts to manage the re-presentment of such chargebacks and reversals on behalf of Organizer and Organizer hereby authorizes Attendease to do so and agrees to use reasonable efforts to cooperate with Attendease in such re-presentment. However, Attendease shall have no obligation to re-present any chargeback that it believes in its discretion it is more likely than not to lose or that relates to a transaction that should be refunded in accordance with the Organizer’s refund policy or the provisions of section 6 below. Both parties agree that Attendease’s loss of any chargeback that has been re-presented by Attendease shall not in any way limit Organizer’s obligation to reimburse Attendease and its affiliates under this paragraph.

6. REFUNDS

6.1 Refund Policy and Process

Organizer agrees to communicate a refund policy to Attendees with respect to each event posted on the Services and to administer such policy in accordance with its terms. All refunds for Attendease transactions must be processed through Attendease, unless otherwise agreed by Attendease. Refunds may need to be processed manually by Attendease. Attendease may determine in its discretion not to process any refunds, which are manual, in which case they will be processed directly by Organizer.

6.2 Refund Disputes

Regardless of what payment method is selected, all disputes regarding refunds are between Organizer and its Attendees. In the event of a dispute, Attendease may try to mediate, but ultimately it is Organizer’s obligation to settle the dispute. Notwithstanding the foregoing, Attendease shall have the right to make refunds on Organizer’s behalf as set forth in subsection 6.3 below.

6.3 Mandatory Refunds

Notwithstanding the foregoing, Organizer authorizes Attendease to make refunds in the following situations (i) Organizer specifically authorizes the refunds at the time; (ii) Attendease believes in its discretion that specific orders should be refunded under the Organizer’s posted refund policy, including without limitation, that they are required by applicable local, state, provincial, national or other law, rule or regulation; (iii) Attendease believes in its discretion that the refund request, if not granted, will lead to a chargeback that Attendease is more likely than not to lose; (iv) Organizer failed to list a refund policy on the applicable event page and Attendease believes in its discretion that a refund would be reasonable under the circumstances; (v) Attendease believes in its discretion that specific orders are fraudulent (e.g., made with stolen credit cards or otherwise not bona fide transactions); or (vi) Attendease believes in its discretion that the order is a duplicate. Organizer also authorizes Attendease to make refunds of any and all orders (including those for unrelated events) if (A) Attendease believes in its discretion that Organizer has engaged in any fraudulent activity or made any misrepresentations; (B) Attendease believes in its discretion that there is substantial risk of nonperformance by Organizer with respect to the applicable event or future events; (C) Attendease believes in its discretion that it is likely to receive complaints, refund requests, transaction reversals and/or chargebacks with respect to a substantial amount of orders; or (D) Attendease believes in its discretion that Organizer is a Prohibited Merchant, has used the Services to process Prohibited Transactions or to manage Prohibited Events or that failing to make the refunds would otherwise expose Attendease to legal liability. Because all sales are ultimately made by Organizers, Organizer hereby agrees to promptly and fully reimburse Attendease and its affiliates upon demand for refunds that Attendease makes Attendease to this Agreement, other than to the extent that the necessity for such refunds are caused by Attendease’s negligence or willful misconduct. Organizer acknowledges and agrees that chargebacks will result in losses to Attendease in excess of the amount of the underlying transaction and that by refunding transactions in advance of a chargeback Attendease is mitigating such losses and its damages with respect to Organizer’s breach of this Agreement.

7. FEES

7.1 Fees

Organizer agrees to pay Attendease all applicable service fees for each ticket, registration or other item sold or donation solicited via the Services (the “Attendease Service Fee”). The Attendease Service Fee shall be on a fixed-fee basis in accordance with the Pricing definition in Schedule “A”. Note that these fees are subject to change from time to time with respect to transactions that occur following the change. In addition, Organizer may from time to time request additional Services from Attendease, including without limitation, marketing and promotion services, equipment leasing, on-site services, printed tickets and dedicated account management, which Attendease may provide at its discretion and the terms of which will be covered by an amendment or change in Schedule “B”. Fees for such ancillary Services (the “Ancillary Fees”) will be disclosed to Organizer prior to Organizer’s acceptance of such Services. The Attendease Service Fee and the Ancillary Fees are referred to herein as the “Fees.”

7.2 Monthly Invoices

Invoices for Fees shall be sent monthly, unless otherwise agreed in writing by Client and Attendease in Schedules “A” and/or “B”, and shall be paid by Client within thirty days, subject to verification by Client.

7.3 Out-of-Pocket Expenses

Client shall reimburse Attendease for all out-of-pocket expenses, including documented necessary travel and living expenses of staff, directly related to the services under this agreement.

7.4 Taxes

All taxes and services relating to the provision of services and materials hereunder shall be payable by Client.

7.5 Charges for Modifications

The cost of preparation of estimates for changes to the services specified in a Schedule “A” and any increase in costs resulting from the implementation of said charges shall be billed to Client and be recoverable above and beyond any limit of maximum expenditure, if any, under this agreement.

8. LIMITATION OF APPLICABLE CHARGES

8.1 Limitation

The project cost estimates set forth in Schedule “A”, if any, unless otherwise stipulated, are bona fide estimates prepared by Attendease for its services in a project statement, and shall be the “Estimated Funding Limitation”. The Parties agree that the total Applicable Charges payable by Client under this Agreement for a project statement shall not exceed its Estimated Funding Limitation and Attendease agrees to make every effort to perform all services called for hereunder within said constraints.

8.2 Proviso

In the unlikely event that it appears that Attendease cannot complete the services of a project statement within its Estimated Funding Limitation, the Client may, but shall not be obliged to, authorize an amendment to Schedule “A” increasing the Estimated Funding Limitation on such terms and conditions as the Parties shall then determine.

9. STEERING COMMITTE

9.1 Steering Committee Creation

If the services of Attendease are invoiced on a fixed price basis, a “Steering Committee” shall be established at either party’s request, comprising Client’s project manager and Attendease’s project manager as well as a representative of senior management from both Client and Attendease. The Steering Committee shall meet no less than once a month and make every effort to:

  1. Monitor the progress of the project;
  2. Discuss and attempt to resolve any problems which may arise;
  3. Discuss and cause to be implemented such changes to the project as the Parties may deem advisable;
  4. Narrow the issues to be presented to the Parties’ senior management.

10. INTELLECTUAL AND INDUSTRIAL PROPERTY

10.1 Client’s Proprietary Right

  1. All original materials provided by Client to Attendease or produced by Attendease specifically for, and paid for, by Client under this Agreement, shall remain or become the sole property of Client. Upon termination of this Agreement, Attendease shall return all such materials to Client, Attendease being allowed to retain one copy thereof for its records purposes only.
  2. Attendease is authorized to freely use or adapt materials produced for Client hereunder, provided Attendease shall not use or allow such material to be used to compete with Client.

10.2 Inventions

Any invention, discovery or improvement conceived by Attendease’s personnel in connection with this Agreement shall belong to Attendease. Attendease agrees to grant Client a perpetual non-exclusive, non-transferable worldwide license to use, for its own needs only, these inventions, discoveries and improvements, free of royalties.

10.3 Attendease’s Proprietary Right

Notwithstanding paragraph 7.1, all materials owned by or introduced to Client by Attendease shall remain the restricted property of the Attendease and Client may not use same without the consent of Attendease.

11. CONFIDENTIALITY

Attendease recognizes that Client’s business must remain confidential and undertakes to use its best efforts to ensure that no materials or information relating to Client’s business will, in any way, be copied, summarized or divulged by Attendease’s staff, except by court order. Nor will Attendease use or allow the use of any trade secret, business development program or other material belonging to Client for its own benefit, without Client’s prior approval.

12. INTELLECTUAL PROPERTY RIGHTS

Attendease warrants that the provision of the services and materials called for hereunder shall not infringe any third party “Intellectual Property Rights” (patents, trademarks, copyrights, trade secrets) and agrees to fully defend and indemnify Client at Attendease’s expense against all claims relating to any Intellectual Property Rights. Such obligation will exist only if the infringement results from the Attendease’s fault or negligence.

13. WARRANTS AND LIMITATIONS OF LIABILITY

13.1

The Parties recognize that Attendease’s exclusive warranty with regard to the services and materials provided under this Agreement is to provide services and materials of professional quality conforming to generally accepted practices in the field of information management and technology.

13.2

Client’s recoverable damages shall be limited to actual direct damages and shall in no case exceed the total Applicable Charges actually paid.

13.3

Subject to paragraph 9, Client will indemnify Attendease from any third party claim relating to Client’s use of any software developed under this Agreement.

14. CLIENT RESPONSIBILITIES

In the event that Client fails to fulfill its responsibilities hereunder in a proper and timely manner, and that this failure causes a delay in the performance of the services hereunder or results in additional costs to Attendease, the Attendease shall provide Client with a written specification of the delay and the resulting costs. Client shall pay said costs to Attendease at the then current Attendease rates for the services involved, and any time limits for performance hereunder shall be extended by the number of days of delay.

15. PUBLICITY

Attendease shall not publicize the subject-matter of this Agreement in any way, without Client’s prior consent, but may list Client as one of its customers in its publicity material.

16. DISPUTES

In the event of a dispute, the Parties irrevocably undertake to adopt the following procedure, rather than seek recourse to the courts:

  1. The Steering Committee (or, if none is in place, the project manager of each party, together) shall in the first instance use its (their) best efforts to seek to resolve any disputes which may arise.
  2. If the dispute is not resolved within two weeks of presentation, then it shall, upon request by a party, be presented to the Chief Executive Officer of each party, who will take up the matter between themselves.
  3. If the dispute cannot be resolved within three weeks of the request for presentation, the parties agree that it shall be resolved in accordance with the arbitration set forth in the following paragraph and which shall be final and binding.
  4. The Parties shall agree on a single arbitrator within five working days of a notice by either Party requesting such action, failing which a judge will designate such arbitrator. The arbitrator shall proceed with all due dispatch to hear the dispute, in conformity with the procedural rules of the applicable law, and to hand down his decision.

17. CLAUSES SURVIVING TERMINATION

Any indemnification, ownership, confidentiality and publicity clause in this Agreement shall survive any termination of this Agreement.

18. TERM

18.1

Unless agreed otherwise in a schedule hereto, the term of this Agreement shall commence at the date hereof and shall continue until terminated by a three-months’ prior notice by either Party.

18.2

The Client shall, upon receipt of invoice, pay Attendease for services executed up to the date of termination.

19. FURTHER ASSURANCES

The parties hereby covenant that they shall from time to time and at all times hereafter do and perform all such acts and things and execute all such deeds, documents and writings as may be required to give effect to the true intent of this Agreement.

20. INTERPRETATION

It is understood and agreed by the parties that questions may arise as to the interpretation, construction or enforcement of this Agreement and the parties are desirous of having the Steering Committee determine any such question of interpretation, construction or enforcement. It is, therefore, understood and agreed by and between the parties that any question arising under the terms of this Agreement as to interpretation, construction or enforcement shall be referred to the Steering Committee and their majority decision shall be final and binding on both of the parties.

21. ENTIRE AGREEMENT

This Agreement represents the entire agreement between the parties relating to the granting of Stock Options and there are no other collateral agreements, representations or warranties to which either party relies.

22. GENERAL

22.1 Notice

Any notice to be given pursuant to the provisions of this Agreement shall be in writing and conclusively deemed to have been delivered and received by a party and in effect on the day on which it is delivered to such party at the address for such party as described above (or at such other address that such party shall provide to the other party in writing).

22.2 Severability

In the event that a provision of this Agreement is unenforceable or is determined to be void or invalid, the parties agree to sever such provision(s) from the Agreement, with the remaining provisions to in full force and effect.

22.3 Enurment

Subject to the other provisions of this Agreement, this Agreement shall enure to the benefit of and be binding upon the parties and their respective heirs, executors, administrators, successors and permitted assigns.

22.4 Jurisdiction

This Agreement shall be governed and construed in accordance with the laws in force from time to time in the Province of British Columbia.

22.5 Time of Essence

Time shall be of the essence of this Agreement.

Having agreed to be bound by the terms of this Agreement, the parties by their duly authorized representatives hereby execute this Agreement on the date first written above.

Signed, Sealed and Delivered in the presence of:

__________________________________________
Witness

Attendease

Per: __________________________________________

__________________________________________
Name of Client

Per: __________________________________________

SCHEDULE “A”

1. Scope of Work

SCHEDULE “B”

Additional Terms and Conditions, or Modifications to the Agreement