Item 1.4 - Third Amendment to the SABO Client Agreement •
APPROVED
P OF CPWY APPROVES CICity of Poway (SDEEALNUTESJAMENDED
.tet, COUNCIL AGENDA REPORT DENIED ❑
N\I TME cote REMOVED ❑
• CONTINUED
RESOLUTION NO.
DATE: February 19, 2019
TO: Honorable Mayor and Members of the City Council
FROM: Brenda Sylvia, Director of Community Services Wr
CONTACT: Roger Morrison, Senior Management Analyst (L
(858) 668-4581 or rmorrisonpoway.orq
SUBJECT: Third Amendment to the SABO Client Agreement Between the City
of Poway and SeatAdvisor, Inc., for Use of an Internet-Based
Ticketing System
Summary:
The SABO Client Agreement between the City of Poway and SeatAdvisor, Inc., for use of an
internet-based ticketing system at the Poway Center for the Performing Arts (PCPA) is set to
expire on March 3, 2019. An Amendment has been prepared to extend this Agreement for an
additional year.
Recommended Action:
It is recommended that the City Council authorize the City Manager to execute the Third
Amendment to the SABO Client Agreement Between the City of Poway and SeatAdvisor, Inc., for
Use of an Internet-Based Ticketing System.
Discussion:
In 2014, the City issued a request for proposals for an internet-based ticketing system at the
PCPA. After reviewing seven proposals, the City entered into a SABO Client Agreement with
SeatAdvisor, Inc. Under this Agreement, the City pays a per-ticket charge, which is passed along
to the ticket buyer. The Agreement had an initial term of three years, ending March 3, 2017.
Section 3 of the Agreement allows the Agreement to be renewed by mutual consent for up to
three additional one-year terms. On February 21, 2017, and February 6, 2018, the City and
SeatAdvisor, Inc., executed the First and Second Amendments to the Agreement to extend the
term to March 3, 2018, without changing any other conditions of the Agreement.
The City and SeatAdvisor, Inc., wish to continue this Agreement for another year. To do so, a
Third Amendment to the Agreement has been drafted to extend the expiration date to March 3,
2019, with no changes in terms and conditions other than the expiration date.
Environmental Review:
This item is not subject to CEQA.
1 of 17 February 19, 2019, Item #1.4
Third Amendment to the SABO Client Agreement
February 19, 2019
Page 2
Fiscal Impact:
Sufficient funds are available in the Performing Arts Center— Other Fees account (204020-51130)
to continue this Agreement. The current budgeted amount is $21,000/year.
Public Notification:
A copy of this report was sent to SeatAdvisor, Inc.
Attachments:
A. Original Agreement dated March 4, 2014
B. Third Amendment to Agreement
Reviewed/Approved By: Reviewed By: Approved By:
Wendy Kaserman Alan Fenstermacher Tina M. White
Assistant City Manager City Attorney City Manager
2 of 17 February 19, 2019, Item # 1.4
SABO CLIENT AGREEMENT
This Agreement Is executed effective March 4, 2014, between SeatAdvisor Inc., a
California corporation ("SeatAdvisor"), and City of Poway, a Municipal Corporation ("Client"),
who agree as follows:
1. Recital. This Agreement is made with reference to the following recital of
essential facts:
1.1. Client elects to utilize SeatAdvisoes SeatAdvisor Box Office TM system
("SABO"), an Internet -based ticketing system, pursuant to the terms and conditions set
forth in this Agreement.
1.2. SeatAdvisor agrees to provide SABO to Client pursuant to the terms and
conditions set forth in this Agreement and in consideration of the fees set forth in Exhibit
A.
2. Definitions. For purposes of this Agreement, the following definitions shall apply
2.1. Event: Events created in SABO using the "Manage Events° function. An
event can be named anything by the Client and can represent either a single
"performance" or a group of performance dates/times. An Event can be used for
anything that can be sold such as tickets, donations, merchandise, admissions,
registrations, etc. Once an Event is created, inventory (Tickets) can then be generated
for that event which can then be sold.
2.2. Ticket: Any item in SABO that can be sold. Tickets can represent things
such as admission tickets to events, merchandise, concessions, gift certificates, etc.
2.3. Patron: A purchaser of a Ticket to an Event at the Venue(s) and/or
individuals and entities whose personal information is added or transferred into SABO.
2.4. Patron Data: Personal information about Patrons, including, but not
limited to, their names, addresses, phone numbers, ticket purchases history and
patterns, credit card numbers and donation Information.
2.5. SeatAdvisor Box Office System (SABO): The Internet -based box office
management system and related procedures established and maintained by
SeatAdvisor for the purpose of managing event creation, facilitating ticket inventory
management, handling subscription and single ticket sales in Client's Ticket Office,
handling single ticket sales on the Internet, managing the creation of ticket subscription
packages, printing tickets, tracking Patron data, and related other features, and
subsequent versions thereof.
2.6. SeatAdvisor TicketResell (Resell Service): A feature in SABO that allows
Client's patrons to sell their tickets to a third party through Client's primary inventory.
Client has the option of collecting a service charge from the buyers of these tickets and
SeatAdvisor will collect a fee from the ticket sellers. SeatAdvisor's fee (Exhibit A) will be
invoiced to Client if Client uses their own merchant account and therefore collects this
fee on behalf of SeatAdvisor. During the term of the Agreement, SeatAdvisor grants to
Client a non-exclusive, nonassignabie and nontransferable license to use the Resell
3 of 17 ATTACHMENT A February 19, 2019, Item #1.4
Service as a platform for Patrons to list individual tickets for sale back through the
Client's primary inventory. Client may display the Resell Service in order to
demonstrate, market and promote its use. Client will only permit patrons to access and
use the Resell Service in accordance with federal, state, and local laws and regulations,
and with the Terms & Conditions attached as Schedule A, which will be posted on
SABO's online ticket purchase page for Client such that Users will be asked to accept
the Terms & Conditions in order to access the Resell Service.
2.7. Venues: Poway Center of the Performing Arts is primary venue. Others
TBD as needed.
3. Term of Agreement. The Term of this Agreement shall commence on the date of
this Agreement and will continue in full force and effect for a period of three (3) years. Either
party may terminate this Agreement at any time without cause upon 60 days written notice.
Upon such termination, SeatAdvisor shall remove any of Client's Ticket data and Patron Data
from SABO, and Client shall remit any sums owing to SeatAdvisor pursuant to Paragraph 7 and
Exhibit A below. Unless earlier terminated as described in this paragraph, the term of this
Agreement may be renewed for a maximum of three (3) one-year terms, provided Client gives
SeatAdvisor sixty (60) days written notice of its offer to renew this Agreement prior to expiration
of the current terms. SeatAdvisor shall have until 30 days prior to the conclusion of the term
within which to accept City's offer to renew this Agreement.
4. Compensation. In consideration for Client's use of SABO and SeatAdvisor's
services to be performed under this Agreement, SeatAdvisor shall be entitled to receive the fees
set forth on Exhibit A.
5. Central Computer Facility. SeatAdvisor shall, at its sole expense, source a central
computer facility for the operation of SABO. Barring unforeseen technical difficulties, acts of
God or other events beyond the control of SeatAdvisor, the central computer facility will be in
operation 24 hours a day/seven days per week, except for scheduled downtime of up to 4 (four)
hours per week, and will be adequately staffed to perform all of SestAdvisor's services under
this Agreement. SeatAdvisor shall provide not less than 48 hours' notice in advance of any
scheduled downtime, and shall assist Client In providing appropriate notice on its website of the
hours of the scheduled downtime.
6. Event Set -Up. Client shall have the sole responsibility for the proposed arrangement
of the Venue for all Events, including without limitation, the Ticket pricing structure, providing
Ticket text printing information, event description information and all other information necessary
for the proper sale of Tickets. SeatAdvisor shall not be responsible for entering any of the
foregoing into SABO. SeatAdvisor shall not be responsible for any mistakes made by Client in
the Event set-up.
7. Treatment of Patron Data. SeatAdvisor recognizes that the Patron Data is a critical
asset of Client and not an asset of SeatAdvisor. As such, SeatAdvisor shall In no way share,
sell, disseminate or otherwise provide such data to any other third party without the written
permission of Client. SeatAdvisor shall not utilize the Patron Data for any purpose except as
requested or permitted in writing by Client, or for the purpose of determining the number of
Patron Data records stored in SABO, or for the purpose of fulfilling its duties under this
Agreement, or as may be required by law. Notwithstanding the foregoing, if any of Client's
Patrons purchase tickets through more than one SABO client, Client agrees that each such
other SABO client shall retain the right to access Client -specific Patron Data for that Patron.
CLIENT Initials
SA Initials
4 of 17 ATTACHMENT A February 19, 2019, Item #1.4
S. Accountino Procedures. Client shall either utilize Client's own credit card merchant
account, integrated with the SABO online credit card transaction processing system, or use
SeatAdvisor's merchant account for the purpose of accepting credit card orders for Ticket Sales
on the Internet or in the Ticket Office. if Client uses Client's merchant account, SeatAdvisor will
invoice Client monthly for amounts owed by Client to SeatAdvisor pursuant to Exhibit A of this
Agreement and Client shall pay SeatAdvisor within 30 days of receipt of SeatAdvisor invoice. If
Client is approved for and uses SeatAdvisor's merchant account, SeatAdvisor will inform Client
when funds will be remitted by SeatAdvisor to Client for sales less any fees in Exhibit A.
SeatAdvisor shall remit the net amount of funds within 30 days of the end of each calendar
month. Any past due amounts will be charged a 1% finance charge per month.
9. SeatAdvisor warrants and represents that, as of the effective date of this Agreement,
it has complied with all applicable requirements for validation and compliance with PCI
requirements (Payment Card Industry Data Security Standard). Failure to maintain PCI
compliance shall be a breach of contract and Client may, at its sole discretion, terminate this
Agreement if SeatAdvisor does not become compliant within thirty (30) days.
10, Client's Default. The occurrence of any of the following events for 30 days (or such
shorter time as may be specified) after receipt by a party (the "defaulting party') of written notice
of such event and the defaulting party's failure to cure such event shall, at the option of the party
giving notice (the "non -defaulting party'), constitute an Event of Default and entitle the non -
defaulting party to immediately terminate this Agreement and the defaulting party's right to effect
sales of Tickets through SABO. In such an event the parties covenant and agree to cooperate in
the return of any Equipment provided by the other party.
10.1. Failure of the defaulting party to pay the non -defaulting party any sums
due under this Agreement for seven (7) days after receipt by the defaulting party of
written notice thereof and its failure to cure the same; or
10.2. The defaulting party's breach of any material term, covenant, condition,
representation or warranty in this Agreement.
Upon the occurrence of any of the foregoing Events of Default, the defaulting
party shall without demand, immediately pay to the non -defaulting party all amounts due
and owing under this Agreement, and the non -defaulting party may, without notice to or
demand to the defaulting party (a) terminate access to SABO, or remove any link to
SABO, (b) institute litigation for the recovery of all damages resulting from the non -
defaulting party's failure to perform its obligations under this Agreement, and (c)
terminate this Agreement. All remedies under this Agreement shall be cumulative and in
addition to any other remedy available to the non -defaulting party at law or in equity.
11. Client's Representations and Warranties. Client represents and warrants to
SeatAdvisor that (to the best of its knowledge, after reasonable investigation) the entering into
and performance of this Agreement will not violate any agreement, contract, Judgment, order,
law or regulation applicable to Client (including without limitation an exclusive agreement or
understanding between Client and/or the Venue or the Venue's owners or operators, and any
third party respecting the sale of Tickets for any Events held at the Venue) or any provision of
Client's charter or bylaws, or result in any material respect in breach of, constitute a default
under, or result in the creation of, any lien, charge, security interest or other encumbrance upon
any assets of Client or upon the Equipment, pursuant to any agreement or instrument to which
Client is a party or by which it or its assets may be bound, which breach has or may have an
3 CLIENT Initials
SA Initials 04
5 of 17 ATTACHMENT A February 19, 2019, Item #1.4
adverse effect on the ability of the Client to perform its obligations under this Agreement. Client
represents and warrants to SeatAdvisor that Client is an agent of each Venue at which any of its
Events are held and Is duly authorized in such capacity to execute this Agreement.
12. Termination Due to Bankruptcy. In the event a party: (1) declares their intent to seek
bankruptcy protection; (ii) becomes insolvent; (iii) voluntarily files or has filed against it a petition
under applicable bankruptcy or insolvency laws which such party fails to have released within
thirty (30) days after filing; (iv) proposes any dissolution, composition or financial reorganization
with creditors or if a receiver, trustee, custodian or similar agent is appointed or takes
possession with respect to all or substantially all property or business of such party; or (v) such
party makes a general assignment for the benefit of creditors, the other party may terminate this
Agreement by giving a termination notice, which termination shall become effective ten (10)
days after mailing.
13. EXCLUSION OF WARRANTIES. CLIENT HEREBY ACKNOWLEDGES THAT
SEATADVISOR HAS NO CONTROL OVER INTERNET -RELATED AND SERVER
CONDITIONS (INCLUDING WITHOUT LIMITATION INTERNET ACCESS, SPEED AND
NETWORK SERVICE INTERRUPTIONS). CLIENT HEREBY ACKNOWLEDGES THAT
SEATADVISOR HAS MADE NO REPRESENTATION OR WARRANTY, EXPRESS OR
IMPLIED, WITH RESPECT TO: (1) THE SUITABILITY OF ITS SERVICES FOR THE
PURPOSES OR USES OF CLIENT, OR (II) THE MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. SEATADVISOR SHALL NOT BE LIABLE TO CLIENT FOR, AND
CLIENT HEREBY ASSUMES ALL RISK OF AND WAIVES ALL CLAIMS AGAINST
SEATADVISOR, IN RESPECT OF ANY DAMAGE WHATSOEVER IN CONNECTION WITH
CLIENT'S USE OF SABO (WHETHER BASED UPON CONTRACT, TORT, NEGLIGENCE,
WARRANTY, PRODUCT LIABILITY, STRICT LIABILITY, AND/OR OTHERWISE AND
WHETHER OR NOT SEATADVISOR HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH
DAMAGE) RESULTING FROM, OR ARISING OUT OF, SEATADVISOR'S SERVICES OR
CLIENT'S USE OF SABO. IN THE EVENT THAT SEATADVISOR IS LIABLE FOR DIRECT
DAMAGES TO CLIENT, ITS LIABILITY WILL NOT EXCEED THE FEES PAID BY CLIENT
UNDER THIS AGREEMENT.
14. Governing Law. This Agreement is governed by and construed in accordance with
the laws of the State of California, irrespective of California's choice -of -law principles. Any
action to interpret or enforce this Agreement shall be brought in the Superior Court for the State
of California, San Diego County. SeatAdvisor hereby waives any right to remove any such
action from San Diego County as is otherwise permitted by California Code of Civil Procedure
section 394.
15. Compliance With Laws. Client agrees to strictly comply with all applicable federal,
state, and local statutes, ordinances, rules, and regulations, as the same may be amended from
time to time.
16. Prior Understandings, This Agreement and all documents specifically referred to
and executed in connection with this Agreement: (a) contain the entire and final agreement of
the parties to this Agreement with respect to the subject matter of this Agreement, and (b)
supersede all negotiations, stipulations, understandings, agreements, representations and
warranties, if any, with respect to such subject matter, which precede or accompany the
execution of this Agreement.
I,t)
CLIENT Initials
SA Initials
6 of 17 ATTACHMENT A February 19, 2019, Item #1.4
17. Attorney's Fees. The prevailing party(les) in any litigation, arbitration, bankruptcy,
insolvency or other proceeding ("Proceeding") relating to the enforcement or interpretation of
this Agreement may recover from the unsuccessful party(les) all costs, expenses, and actual
attorney's fees (including expert witness and other consultants' fees and costs) relating to or
arising out of (a) the Proceeding (whether or not the Proceeding proceeds to judgment), and (b)
any post -judgment or post -award proceeding including, without limitation, one to enforce or
collect any judgment or award resulting from the Proceeding. All such judgments and awards
shall contain a specific provision for the recovery of all such incurred costs, expenses, and
actual attorney's fees.
18. Notices. Each notice and other communication required or permitted to be given
under this Agreement ("Notice") must be in writing. Notice is duly given to another party upon:
(a) hand delivery to the other party, (b) receipt by the other party when sent by facsimile to the
address and number for such party set forth below (provided, however, that the Notice is not
effective unless a duplicate copy of the facsimile Notice is promptly given by one of the other
methods permitted under this paragraph), (c) three business days after the Notice has been
deposited with the United States postal service as first class certified mail, return receipt
requested, postage prepaid, and addressed to the party as set forth below, or (d) the next
business day after the Notice has been deposited with a reputable overnight delivery service,
postage prepaid, addressed to the party as set forth below with next -business -day delivery
guaranteed, provided that the sending party receives a confirmation of delivery from the
delivery -service -provider.
To: SEATADVISOR INC.
2655 Camino Del Rio North
Suite 470
San Diego, CA 92108
(714) 442-2627 -- fax
To: CITY OF POWAY
13325 Civic Center Drive
Poway, CA 92064
Each party shall make a reasonable, good faith effort to ensure that it will accept or receive
Notices to it that are given In accordance with this paragraph. A party may change its address
for purposes of this paragraph by giving the other party(ies) written notice of a new address in
the manner set forth above.
7of17
5 CLIENT Initials
SA Initials
ATTACHMENT A February 19, 2019, Item #1
WE HAVE READ AND UNDERST— :FOREGOING.
SeatAdvisor's Initials: Client's Initials:
CITY OF POWAY, a Municipal Corporation
Dated: 3-6,4
By:
Tina M. White, Interim City Manager
Approved as to Form:
Dated:
By:
Morgan L. Foley, City Attorney
SEATADVI R, INC., C ifornia Corporation
By:
Brdfit Miller, President and CEO
8of17
�,IJ
6 CLIENT Initials
SA Initials
ATTACHMENT A February 19, 2019, Item #1.4
WE HAVE READ AND UNDERSTA THE FOREGOING.
SestAdvIsoes Initials: Client's Initials:
CITY OF POWAY, a Municipal Corporation
Dated:
Tina M. White, Interim City Manager
Approved as to Form:
SEATADVI R, INC., qQAomIa Corporation
BY:
Breffit Miller, President and CEO
CLIENT Initials
SA Initials
9 of 17 ATTACHMENT A February 19, 2019, Item #1.4
EXHIBIT A
Box Office Processina Fee
$0.50 per ticket
Subject to the Minimum Box Office Tickets Processed (as defined below), Client shall pay to
SeatAdvisor a Box Office Ticket Processing Fee, which will be calculated based on the net
tickets processed by Client using SABO. "Net tickets" is defined as [number of tickets sold
less refunds, exchange, tickets sold through SeatAdvisor's TicketResell, and up to 10%
free comps ($0 priced tickets)].
TicketResell Fee
SeatAdvisor will charge a 15% service charge to seller of tickets through SeatAdvisor's
TicketResell service. If Client uses their own merchant account, this fee will be collected by
Client from the seller and paid to SeatAdvisor monthly. Client has the option of adding and
retaining service charges to the new buyer of any Resell Tickets.
Annual Minimum Box Office Tickets Processed
25,000
Should the annual sum total of Client's Box Office Tickets sold not amount to the above
minimum totals (the "Minimum Tickets"), Client shall pay SeatAdvisor the difference between
the annual sum total of Box Office Tickets sold and the Minimum Tickets as defined above
multiplied by the Box Office Ticket Processing Fee. SeatAdvisor will send Client an annual
statement of total Box Office Ticket Processing Fees paid within 30 days after the anniversary
date of this Agreement. Should Client have an amount owed to SeatAdvisor to reach the annual
minimums, Client shall remit such funds within 30 days of receiving the SeatAdvisor annual
statement.
Credit Card Processina Fee — SeatAdvisor Merchant Account
If Client uses SeatAdvisor's credit card merchant account for any Ticket sales, Client shall pay
SeatAdvisor 5% of the gross amount of all tickets and Client extra charges/fees (if any)
processed through SeatAdvisor's credit card merchant account.
Credit Card Processing Fee — Client Merchant Account
If Client chooses to use Cybersource as their payment gateway, Client shall pay SeatAdvisor a
setup fee of $100.00 to integrate Client's merchant account directly into SABO (must be
Cybersource compatible) and a fee of $0.15 per credit card transaction for those transactions
that are processed through SABO on Client's Credit Card Merchant Account. This fee shall
apply to transactions that are made via Patron Internet sales or box office credit card
transactions that Client chooses to charge through the SABO system. This fee shall be applied
per authorization, not per ticket. If Client chooses to use any other SeatAdvisor approved
gateway, Client will be responsible for paying any gateway related fees directly to the gateway
provider. In addition, there is no setup charge from SeatAdvisor if client does not select
SeatAdvisor's Cybersource gateway.
7 CLIENT Initials ..�
SA Initials
�
10 of 17 ATTACHMENT A February 19, 2019, Item #1.4
Charge -backs
In the event of a Patron credit card charge -back in connection with any order processed through
SeatAdvisor's credit card merchant account, SeatAdvisor will use reasonable efforts to resolve
the charge -back issue. If SeatAdvisor is unable to reverse the Patron charge -back within five
(5) days of receiving notification of such charge -back, SeatAdvisor is authorized to deduct the
amount of any such charge -back from Client's next payment, less any fees collected by
SeatAdvisor in connection with such Patron order. If such funds are insufficient to cover all
such chargebacks, Client shall deliver the amount of the deficiency to SeatAdvisor within 72
hours after notice by SeatAdvisor to Client of the amount of the deficiency. In addition,
SeatAdvisor will charge Client a $20 processing fee per chargeback occurrence. This
processing fee will be assessed whether or not the charge back is reversed.
Training Fee
Client shall pay SeatAdvisor $895.00 is waived as incentive discount for training if agreement is
signed by February 28, 2014. Should Client terminate this Agreement, all Setup and Training
fees paid by the date of termination will be completely non-refundable. In consideration of this
fee, SeatAdvisor will provide Client with:
• Up to 9 hours telephone training by a SeatAdvisor Client Services representative to be
used during the first year of this Agreement
• Import of Client -supplied Patron Data list into SABO, provided such data is supplied in
SeatAdvisor-specified format
Per Venue Setup Fee
Standard pricing will apply below for any venues/layouts beyond the one-time incentive
discount.
$50 General admission
$300 For SeatMap up to 500 seats
$600 For SeatMap up to 1,500 seats
Over 1,500 seats: $600 plus $0.15 per seat over 1,500
Additional map layouts or changes for the same venue will be charged at 50% of the above
prices.
50% surcharge on all rush maps.
SeatMaps are the sole property of SeatAdvisor and are to be used only within SABO.
SeatAdvisor must approve in writing the use of any SeatMap for any purpose outside of SABO.
Service and Support
Client shall be solely responsible for all service, maintenance and support -related costs for
computers, printers, Client Internet oonnection(s), and any other Client -owned hardware and
software utilized to access and use SABO. SeatAdvisor will provide Client with telephone and
email support specifically related to the use of the SABO system. After the completion of the Set
8 CLIENT Initials
SA Initialsi��
11 of 17 ATTACHMENT A February 19, 2019, Item #1.4
Up and Training„services set forth in this Exhibit A, Client shall maintain its own qualified
personnel (or contract with a third -party service provider) who are trained in the day-to-day
operation of SABO for the purpose of on-going staff training, answering staff "how-to” questions,
and addressing any other SABO usage -related issues but can contact SeatAdvisor for support
as needed. After the initial setup and training, any additional training will be billed at $100/hr. or
a full training can be scheduled for $500.
Other Costs.
Except as provided in this. Agreement, all other costs and expenses to be paid by Client under
this Agreement shall be due and payable upon receipt of an invoice by Client.
i
9 CLIENT Initials
SA Initials
12 of 17 ATTACHMENT A February 19, 2019, Item #1.4
SCHEDULE A
TERMS AND CONDITIONS FOR PATRONS USING TICKETRESELL
[For patrons wishing to list tickets using the Resell Service — This will be posted In SABO
and patrons will need to agree to these terms before using the TlcketResell service to
sell their tickets]
IT IS IMPORTANT THAT YOU READ CAREFULLY AND UNDERSTAND THESE TERMS AND
CONDITIONS. BY USING OUR TICKET LISTING SERVICE, YOU AGREE TO BE BOUND BY
ALL OF THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL OF
THESE TERMS AND CONDITIONS, PLEASE DO NOT USE OUR TICKET LISTING SERVICE.
By using this service you represent that you are at least 18 years old and that you are
legally able to enter into this agreement.
These Terms & Conditions ("Terms") make a binding agreement that is between any person
who uses the Ticket Listing Service (collectively "you," "your' or "I") and
City of Poway ("our," "we" or "us").
TICKET LISTING SERVICE
This Ticket Listing Service is designed to allow our patrons the ability to list the tickets they are
unable to use for sale with our general inventory of unsold tickets. It gives us authorization to
cancel a patron's tickets and to issue new ones through our usual ticket sale channels, including
our ticket office and online ordering system, to other patrons.
VENUE AUTHORIZATION
We may not allow certain types of tickets, or tickets to certain events, to be listed for sale. As
you proceed to use the Ticket Listing Service, any unauthorized listing by you may be declined
by us. We reserve the right to limit and even terminate your use of the Ticket Listing Service in
our sole discretion at any time, without notifying you first.
YOUR USER ACCOUNT
If you have purchased tickets through our website, you already have an account. Otherwise, if
you purchased tickets from the box office and provided your email address you will be asked to
create an account in order to list your tickets on our website. You will need to use the same
email address that you used when you purchased your tickets so that your account will be
linked with your tickets. You will be asked to provide a user name and password.
LOGIN INFORMATION
You are entirely responsible for maintaining the confidentiality of your password. You may not
use the account, username, or password of another person. You agree to notify us immediately
of any unauthorized use of your account, user name, or password. We will not be liable for any
loss that you incur as a result of someone else using your password, either with or without your
knowledge. You may be held liable for any losses incurred by us, our affiliates, officers,
directors, employees, consultants, agents, and representatives due to someone else's use of
your account or password.
LISTING PROCESS; LISTING PRICE
Once you have logged into your User account, the tickets that you have purchased for future
events will be displayed. Select the individual tickets to be listed and set your listing price. If
the listing price exceeds our authorized maximum premium amount, the listing will not be
allowed. \
10 CLIENT Initials
SA Initials
13 of 17 ATTACHMENT A February 19, 2019, Item #1.4
If your ticket listing is purchased by another patron, you will receive your authorized listing price
minus transaction fees paid after the event has taken place. The amount you will receive in
connection with the cancellation of your ticket will appear on your screen as you are asked to
finalize your ticket listings. Please note, although you may list more than one ticket to any
event, you may not be able to sell all of your tickets at one time and we do not guarantee
that any tickets listed will be canceled. PLEASE DO NOT DISCARD YOUR TICKETS AS
WE MAY BE UNABLE TO SELL THEM.
LISTING EXPIRATION
Although you will be able to specify the expiration date, we reserve the right to modify that date
and/or time. The expiration date of your ticket listing will be displayed on your screen as you
are asked to finalize your listing.
SALES AND OTHER TAXES
By using this service, you may become liable for the payment of a sales, privilege, or income
tax. Please consult with a professional before using this feature if you are unsure of what
amount of taxes you might owe as a result. You consent to any legally required disclosures by
us of information to the relevant taxing authorities.
REMOVING YOUR LISTING
If your circumstances change, you may remove your listing by logging into your online account.
However, in the event that the listing results In our sale of a new ticket or if the listing is selected
and in the process of being sold, you will be unable to remove the listing. We will notify you
when your ticket has been sold through the email address associated with your account.
YOUR LISTING PROCEEDS
Your listing proceeds will be payable within 7 days after the event. If an event is canceled for
which you have listed a ticket, you may not be entitled to payment. In that case, the normal
ticket purchase policies will apply and you may be entitled to a refund of the original purchase
amount.
MONITORING POLICY; LIMITATIONS ON USE
Our Ticket Listing Service is not intended to be used for commercial purposes. It is intended
solely to serve our valued patrons who are unable to attend the events that they have
purchased tickets to for their own personal use, or for the use of friends or family. In order to
prevent the Ticket Listing Service from being used in an unauthorized manner, we may restrict
your use of the Ticket Listing Service if we think you are abusing it. We may access your
account and records on a case-by-case basis to Investigate complaints or allegations of abuse,
infringement of third party rights, or other unauthorized uses of the Listing Service. We do not
intend to disclose the existence or occurrence of such an investigation unless required by law,
but we reserve the right to terminate your account immediately, with or without notice to you,
and without liability to you, if we believe that you have violated any of these Terms, furnished us
with false or misleading information, or interfered with use of the Listing Service by others.
IT MAY BE A VIOLATION OF STATE OR LOCAL LAW TO USE OUR TICKET LISTING
SERVICE FOR BUSINESS PURPOSES.
Privacy Policy
We respect your privacy and permit you to control the treatment of your personal information. A
complete statement of our current privacy policy can be found by clicking
11 CLIENT Initials
SA Initials
14 of 17 ATTACHMENT A February 19, 2019, Item #1.4
htto://www.seatadvisor.com/privacy.html. Our privacy policy is incorporated by reference into
these Terms.
Disclaimer of Warranties
WE ARE MAKING THE LISTING SERVICE AVAILABLE "AS IS" WITHOUT WARRANTY OF
ANY KIND. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF,
OR INABILITY TO USE, THE LISTING SERVICE. TO THE MAXIMUM EXTENT PERMITTED
BY LAW, WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED,
REGARDING THE LISTING SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE LISTING SERVICE WILL MEET
YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SITE OR THE LISTING
SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE BE LIABLE FOR
DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES, LOST PROFITS, OR LOST DATA, REGARDLESS OF THE
FORESEEABILITY OF THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH
YOUR USE OF THE LISTING SERVICE. This limitation shall apply regardless of whether the
damages arise out of breach of contract, tort, or any other legal theory or form of action.
Indemnification
You agree to indemnify us for certain of your acts and omissions. You agree to Indemnify,
defend, and hold harmless us and our affiliates, officers, directors, employees, consultants,
agents, and representatives from any and all third party claims, losses, liability, damages,
and/or costs (including reasonable attorney fees and costs) arising from your access to or use
of the Ticket Listing Service, your violation of these Terms, or your infringement, or infringement
by any other user of your account, of any intellectual property or other right of any person or
entity. We will notify you promptly of any such claim, loss, liability, or demand, and will provide
you with reasonable assistance, at your expense, in defending any such claim, loss, liability,
damage, or cost.
Miscellaneous
These Terms will be construed in accordance with the laws of California, excluding its choice of
law rules. The state courts of California, or the federal courts within the state of California, will
have exclusive jurisdiction over any judicial proceedings relating to any disputes arising out of
the interpretation, performance or breach of these terms. If, for whatever reason, a court of
competent jurisdiction finds any term or condition in these Terms to be unenforceable, all other
terms and conditions will remain unaffected and in full force and effect. No waiver of any breach
of any provision of these Terms shall constitute a waiver of any prior, concurrent, or
subsequent breach of the same or any other provisions hereof, and no waiver shall be effective
unless made in writing and signed by an authorized representative of the waiving party.
We may, without prior notice, (a) revise these Terms; (b) modify the Ticket Listing Service; and
(c) discontinue the Ticket Listing Service at any time. We will post any revision to these Terms
to our website, and the revision shall be effective immediately on such posting. You agree to
review these Terms and other online policies posted on our website periodically to be aware of
any revisions. You agree that, by continuing to use or access the Listing Service following notice
of any revision, you shall abide by any such revision. \\
12 CLIENT Initials
SA Initials
15 of 17 ATTACHMENT A February 19, 201, Item #1.4
THIRD AMENDMENT TO SABO CLIENT AGREEMENT BETWEEN THE CITY OF POWAY
AND SEATADVISOR, INC., FOR INTERNET -BASED TICKETING SYSTEM
THIS THIRD AMENDMENT TO SABO CLIENT AGREEMENT BETWEEN THE CITY OF
POWAY AND SEATADVISOR, INC., FOR INTERNET -BASED TICKETING SYSTEM ("THIRD
AMENDMENT") is made and entered into effective this 19t' day of February, 2019, by and between
the CITY OF POWAY, a California municipal corporation (the "CITY"), and SeatAdvisor, Inc., a
California corporation ("SeatAdvisor').
RECITALS
1. CITY and SeatAdvisor entered into that certain "SABO CLIENT AGREEMENT"
("AGREEMENT"), dated March 4, 2014, by which CITY and SeatAdvisor established the terms and
conditions for use of the SeatAdvisor Box OfficeTM ("SABO") system by City.
2. The AGREEMENT has a term of three (3) years, and further provides, interalia, that
the AGREEMENT may be extended for up to three (3) additional one-year terms by mutual consent.
3. City and SeatAdvisor executed the FIRST AMENDMENT TO SABO CLIENT
AGREEMENT BETWEEN THE CITY OF POWAY AND SEATADVISOR, INC., FOR INTERNET -
BASED TICKETING SYSTEM on February 21, 2017, to extend the term of the AGREEMENT for a
one-year term, beginning March 4, 2017, and terminating March 3, 2018.
4. City and SeatAdvisor executed the SECOND AMENDMENT TO SABO CLIENT
AGREEMENT BETWEEN THE CITY OF POWAY AND SEATADVISOR, INC., FOR INTERNET -
BASED TICKETING SYSTEM on February 6, 2018, to extend the term of the AGREEMENT for a
one-year term, beginning March 4, 2018, and terminating March 3, 2019.
5. CITY and SeatAdvisor, Inc., now agree to extend the term of the AGREEMENT for a
one-year term, beginning March 4, 2019, and terminating March 3, 2020.
6. This THIRD AMENDMENT is necessary to extend the term of the AGREEMENT.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
Section 1. Section 3 of the AGREEMENT is amended to read as follows:
3. Term of Agreement. The Term of this Agreement shall commence on the date of this
Agreement and will continue in full force and effect for a period of six (6) years.
Either party may terminate this Agreement at any time without cause upon 60 days
written notice. Upon such termination, SeatAdvisor shall remove any of Client's
Ticket data and Patron Data from SABO, and Client shall remit any sums owing to
SeatAdvisor pursuant to Paragraph 7 and Exhibit A below.
Section 2. Except as otherwise amended bythis THIRD AMENDMENT, all other terms
and conditions of the AGREEMENT shall remain in full force and effect.
16 of 17 ATTACHMENT B February 19, 2019, Item #1.4
IN WITNESS WHEREOF, the parties hereto have caused this THIRD AMENDMENT to be
executed the day and year first above written.
CITY OF POWAY,
a California municipal corporation
Tina M. White, City Manager
ATTEST:
A. Kay Vinson, Interim City Clerk
SeatAdvisor, Inc., a California
corporation
Joe Tish, General Manager
APPROVED AS TO FORM:
Alan Fenstermacher, City Attorney
17 of 17 ATTACHMENT B February 19, 2019, Item #1.4