Seat Insiders Inc. Membership Agreement
This Membership Agreement (“Agreement”) is effective 10/25/2019 (the “Effective Date”) and is between (“Client”) and Seat Insiders, Inc., a Delaware Corporation (“Provider”).
A. Provider is a full-service concierge dedicated to providing access to entertainment and events.
B. Client requires the services of Provider from time to time.
C. The parties desire that Provider deliver services to Client on a case-by-case basis. The services for each request (the “Services”) will be provided pursuant to a separate and distinct contract (a “Service Order”) that incorporates certain terms of this Agreement.
The parties therefore agree as follows:
SERVICES
1.1 Orders. Provider shall provide the Services to Client pursuant to each Service Order that is entered into during the term of this Agreement. Client may request Services at any time and by any method agreed to by the parties. Client shall make any corrections, amendments, or adjustments to a request for Services prior to confirmation of the Service Order by Provider.
Each Service Order will automatically incorporate the terms of this agreement and be a separate and distinct agreement. If there is a contradiction between a provision of this agreement and a Service Order, then the provision in this agreement will take precedence unless the Service Order specifically states that it takes precedence over the provision
1.2 Quotation. The validity of quotation given by Provider and agreed to by Client is functionally equivalent to that of Service Order. The parties hereby agree to be bound by the terms of quotation in every way in lieu of a Service Order.
1.3 Terms and Conditions. Provider’s Sales Terms and Conditions (including any amendments thereto) shall apply to all Services performed by Provider.
2. SERVICE FEE; PAYMENT
2.1 Service Fee. Client shall pay Provider a service fee in the amount and manner provided in the applicable Service Order (the “Service Fee”).
2.2 Expenses. Client shall reimburse Provider for reasonable expenses that are (a) authorized by Client, (b) described in the applicable Service Order, or (c) described in this agreement.
2.3 Payment. Client shall pay each of Provider’s invoices upon receipt unless otherwise specified in the applicable invoice, quotation, or Service Order. If applicable, Provider reserves the right to charge Client immediately upon approval of a quotation or Service Order and prior to the issuance of an invoice.
2.4 No Cancellation. Service Fee and other payments under this Section are non-cancelable and non-refundable.
2.5 Payment Default. In the event of an overdue payment (a “Payment Default”), (a) interest of 0.33‰ will be accrued daily (12% per annum) of the overdue payment as of the date of the Payment Default and (b) Provider may suspend the provision of the Services until the Payment Default is rectified by Client. If the Payment Default is not rectified within 30 days, then it will be deemed an incurable material breach of the applicable Service Order, and Provider may terminate the Service Order pursuant to Section 7.3.
Notwithstanding anything contrary in this Agreement, Provider reserves the right to refuse delivery of Services (including tickets, parking passes, or other materials included with Services) if payment of any Service Fee or other payments are not received by Provider in advance of a scheduled event. This provision is expressly intended to apply even if Client’s Payment Default has not resulted in an incurable material breach pursuant to the 30-day period described above.
3. PROVISION OF SERVICES
3.1 Specifications. Provider shall provide the Services in accordance with the specifications of the applicable quotation or Service Order.
3.2 Delivery of Services. Unless otherwise requested by Client or specified in a quotation or Service Order, it is assumed delivery of Services (including tickets, parking passes, or other materials included with Services) may not occur until the day of the event. Location, method, and terms of delivery may vary based on event and availability and are subject to change.
4. REPRESENTATIONS AND WARRANTIES
4.1 Mutual. Each party represents and warrants that (a) it validly exists under the laws of the jurisdiction in which it was organized, (b) it has the full power, right and authority to execute and deliver this agreement and to perform its obligations under this agreement, (c) this agreement once executed will constitute a legal, valid and binding agreement enforceable against it and (d) its performance of this agreement will not conflict with any obligations it may have to any other person.
4.2 Compliance with Law. Each party represents and warrants that it has not violated any applicable law in connection with actions leading up to entry into this agreement or any Service Order. Each party shall immediately notify the other party upon becoming aware of a breach of this Section.
5. INDEMNIFICATION; LIMITATION ON LIABILITY
5.1 Third Party Claims. Each party shall defend, indemnify and hold the other party and its and their directors, officers, employees, agents and consultants and legal, financial, accounting and other advisors (“Related Persons”) harmless from and against any and all liabilities and damages (including reasonable attorneys’ fees) (“Losses”) resulting from any third party claims, demands, suits or proceedings (“Claims”) to the extent arising out of or relating to (a) in the case that Provider is the indemnifying party, its performance of the Services, (b) in the case that Client is the indemnifying party, its use of Services (including tickets, parking passes, or other materials provided as part of Services), (c) a material breach of this agreement by the indemnifying party, (d) a material violation of applicable law by the indemnifying party or any of its Related Persons or (e) the negligence, recklessness or willful misconduct of the indemnifying party or any of its Related Persons during the course of activities carried out in connection with this agreement. The indemnification obligations set forth in this Section 5.1 do not apply to the extent that the Loss arises in whole or in part from the negligence, recklessness or willful misconduct of the indemnified party or any of its Related Persons.
5.2 Defense. Each party shall notify the other party promptly upon learning of a Claim that is subject to indemnification pursuant to Section 5.1. The indemnifying party may control, at its own expense, the defense of the Claim in good faith with counsel of its choice as long as such counsel is reasonably acceptable to the indemnified party. The indemnified party shall use reasonable efforts to cooperate in the defense and may participate at its own expense using its own counsel. No compromise or settlement of any Claim may be made by the indemnifying party without the indemnified party’s written consent unless (a) there is no finding or admission of any violation of law or any violation of the rights of any person and no effect on any other claims that may be made against the indemnified party, (b) the sole relief provided is monetary damages that are paid in full by the indemnifying party and (c) the indemnified party’s rights under this agreement are not adversely affected.
5.3 Limitations on Liability
a. Except for Losses arising from breach of confidentiality obligations or from a party’s gross negligence or willful misconduct, neither party will be liable to the other party for breach-of-contract damages that (i) the breaching party could not reasonably have foreseen on entry into this agreement or (ii) result from special circumstances of the non-breaching party.
b. Except for Losses arising from breach of confidentiality obligations or from Provider’s gross negligence or willful misconduct, Provider’s maximum aggregate total liability in connection with a Service Order or accepted quotation will not exceed the total payments received under the Service Order or accepted quotation.
6. CONFIDENTIALITY AND PUBLICITY
6.1 Right to Use. Provider reserves the right to advertise its relationship with Client unless otherwise limited or prohibited by Client in writing.
6.2 Confidentiality. Client shall not disclose the terms of this Agreement or any Service Order, quotation, invoice, or other proprietary materials provided by Provider to Client.
7. TERM AND TERMINATION
7.1 Agreement. The term of this Agreement commences on the Effective Date and shall continue forever unless otherwise terminated by either party upon one (1) day written notice.
7.2 Termination for Cause. If Client commits an incurable material breach of this Agreement, including for Payment Default as described in Section 2.6, Provider may terminate this Agreement “for cause.” In the event of termination for cause, Provider may cancel any or all Service Orders pending at the time of termination including those wherein Client is not in default. If payment has been made by Client on a Service Order cancelled pursuant to a for cause termination, Client shall be entitled to a refund of said payment.
7.3 Service Orders. Service Orders are separate and distinct contracts that incorporate certain terms of this agreement, and are not affected by the termination of this agreement. The term of each Service Order commences on the date indicated in the Service Order and will terminate upon completion of the Services. Notwithstanding the foregoing, either party may terminate a Service Order immediately upon notice to the other party if (i) a material breach of the Service Order by the other party remains uncured 30 days after notice of the material breach was received by the other party and (ii) the material breach was not caused by the party terminating the Service Order.
Notwithstanding the provisions above, Provider may terminate a Service Order prior to the 30-day period to cure if Client is in material breach of the Service Order (including Payment Default) and the event(s) for which Provider is delivering Services is less than 30 days from the date of Client’s breach.
7.4 Survival. Upon termination of this agreement or a Service Order, all outstanding rights and obligations between the parties arising out of or in connection with this agreement or the Service Order, as the case may be, will immediately terminate, other than any obligations that (a) matured prior to the effective date of the termination or (b) by their nature are intended to survive.
8. MISCELLANEOUS
8.1 Force majeure. Neither party shall be liable for non-fulfilment of its obligations under this agreement if such non-fulfilment is due to an occurrence of force majeure. Each party shall use reasonable efforts to mitigate adverse consequences.
8.2 Assignment. This agreement may not be assigned by a party without the prior written consent of the other party. Any purported assignment in violation of this Section is void.
8.3 Notices. All notices, requests, demands and other communications required under this agreement can be provided in email, phone calls, or text messages and will be deemed to have been given or made and sufficient in all respects when delivered to an employee of the company.
8.4 Independent Contractor. The parties are independent contractors, and nothing contained in this agreement may be deemed or construed to create a partnership, joint venture, employment, franchise, agency, fiduciary or other relationship between the parties.
8.5 Non-Solicitation. During the term of this agreement and for one year thereafter, Client shall not induce or solicit (or authorize or assist in the taking of any such actions by any third party) any employee or consultant of Provider to leave his or her employment or business association.
8.6 Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Virginia without giving effect to any choice or conflict of law provision or rule. Each party irrevocably submits to the exclusive jurisdiction and venue of the federal and state courts located in the County of Fairfax, Virginia in any legal suit, action, or proceeding arising out of or based upon this Agreement or the Services provided hereunder.
8.7 Attorney’s Fees. If any party institutes any legal proceeding, petition for equitable relief, or other legal proceeding against the other party arising out of or relating to this Agreement, including, but not limited to, contract, equity, tort, fraud, and statutory claims, the prevailing party in the proceeding, petition for equitable relief, or other legal proceeding is entitled to receive, and the non-prevailing party shall pay, in addition to all other remedies to which the prevailing party may be entitled, the costs and expenses incurred by the prevailing party in conducting the proceeding, petition for equitable relief, or other legal proceeding, including reasonable attorneys’ fees, expenses, and costs, even if not recoverable by law (including, without limitation, all fees, taxes, costs, and expenses incident to appellate, bankruptcy, and post-judgment proceedings).
8.8 Entire Agreement; Non-Reliance. This agreement contains the entire agreement between the parties with respect to the subject matter of this agreement. Prior agreements are hereby superseded. Each party disclaims that it is relying on any representations or warranties other than those set forth in this agreement, and irrevocably waives any rights that it might otherwise have to extra-contractual remedies, including claims in tort relating to communications outside of this agreement.
8.9 Amendment. No modification or waiver of any term of this agreement or any other form of amendment to this agreement will be binding unless made expressly in writing and signed by both parties. An amendment to this agreement will only be incorporated into Service Orders entered into after the date of the amendment.
8.10 No Third-Party Beneficiaries. The provisions of this agreement are for the sole benefit of the parties.
8.11 Waiver. The waiver by either party of any breach of any term of this agreement will not constitute a waiver of any other breach of the same or any other term. Failure or delay on the part of either party to fully exercise any right under this agreement will not constitute a waiver or otherwise affect in any way the same or any other right.
8.12 Severability. If any provision in this agreement is held to be invalid, illegal or unenforceable in any respect, then (a) the provision will be replaced by a valid and enforceable provision that achieves as far as possible the intention of the parties and (b) all other provisions of this agreement will remain in full force and effect as if the original agreement had been executed without the invalidated, illegal or unenforceable provision.
8.13 Counterparts. This agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together constitute one and the same instrument. Executed counterparts may be exchanged by facsimile or e-mail in PDF or similar electronic format.