Capitalized words in these general terms and conditions (these “T&Cs”) that are not otherwise defined herein shall have the meanings ascribed thereto in the Order or applicable SOW in which these T&Cs are referenced. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
Definitions. The following terms shall have the meaning ascribed to them below:
“Affiliate” means a Person which, directly or indirectly, is controlled by, controls, or is under common control with, a Party. For purposes of the foregoing definition, the phrase “control” means the ownership of fifty percent (50%) or more of the voting securities or an interest in fifty percent (50%) or more of the profits of such entity, or the possession, direct or indirect, of the power to cause the direction of the management and policies of such entity, whether through ownership of the voting securities of such entity, by contract or otherwise.
“Applicable Law” means any applicable law, rule, regulation, administrative degree or order from a local, state or federal authority, or any governing or regulatory body, or any court or alternative dispute resolution forum of competent jurisdiction.
“Documentation” means all on-line help materials included within the Subscription Services and any other user or technical documentation and manuals (in whatever media) made available by TicketOS to Client in connection with the Subscription Services.
“Implementation Date” means the date upon which the Platform is implemented and available for Client.
“Implementation Period” means the period between the Effective Date and the Implementation Date.
“Intellectual Property Rights” means any intellectual property rights in any part of the world, whether registered or unregistered, and all applications for and renewals or extensions of such rights, including rights comprising or relating to (i) patents, patent disclosures and inventions (whether patentable or not); (ii) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith; (iii) works of authorship, designs, copyrights, copyrightable works (including computer programs) and rights in data and databases; (iv) trade secrets, know-how and other confidential information; and (v) all similar or equivalent rights or forms of protection.
“Person” means any individual, partnership, corporation, limited liability company, association, trust, joint venture, unincorporated organization, governmental entity, or other legal entity.
“Professional Services“ means any professional services described on the applicable SOW or such other professional services provided by TicketOS to Client which are incidental to other Services provided herein, including, if applicable, any implementation, development and maintenance services, and training, as well as any services for the procurement of non-corporate owned inventory tickets or resale of nonutilized corporate-owned ticket inventory.
“Subscription Services” means the Platform and any other software-as-a-service offerings or other subscription-based services described on the applicable SOW, and any upgrades, corrections, revisions and new releases thereto provided by TicketOS to Client during the applicable Order or SOW term. A description of certain of the current features of the applicable version of the Platform is available at https://ticketos.com/ticketos-marketplace-terms-conditions/ but except as otherwise expressly provided in an SOW executed between the Parties, is subject to change by TicketOS at any time and without notice and certain features and functionalities within an applicable version may be unavailable from time to time and/or discontinued.
“Support Services” means any technical support provided by TicketOS in connection with the Services.
Term & Termination.
These T&Cs shall remain in effect until the completion or earlier termination of all Services under the Order and any outstanding SOWs. The provisions of these T&Cs where by their nature are intended to survive the expiration or termination of the Services shall so survive. .
Upon expiration or termination of the Order or an applicable SOW, or Services thereunder, all rights granted under such Order or SOW or with respect to such Services (and this Agreement as it relates thereto) by a Party, except as may otherwise expressly be provided herein, revert respectively to such granting Party. Client agrees that from the date of termination or expiration, Client shall promptly cease all use of the Services under any terminated Order or SOW. No expiration or termination will affect Client’s obligation to pay all Fees that may have become due and payable before such expiration or termination. Except as otherwise expressly provided in this Agreement or the applicable SOW, no termination of an Order, SOW or Services shall entitle Client to any refund.
Services; IP Licenses & Responsibilities.
Subject to the terms and conditions contained in this Agreement, TicketOS hereby grants Client a limited, non-exclusive, non-sublicensable, non-transferable license right during the term of the applicable Order or SOW to access and use the Subscription Services for Client’s internal use and sole benefit for ticket inventory management (including, ticket resale, donation and procurement) (as applicable, the “Permitted Purpose”). Client shall have not acquire any ownership of the Platform or any Services (including any Reports (as defined below)). As part of the Services, Client shall right to access reports (“Reports”) showing relevant statistics concerning purchasing and distribution of the tickets through the Platform (e.g., information on lines of business, venues and events).
Subject to the terms and conditions contained in this Agreement, TicketOS shall also provide Client with the Professional Services and Support Services described in the applicable SOW during the term of the respective SOW. The Professional Services and Support Services shall be used by Client solely for Client’s internal use and sole benefit in connection with the Permitted Purpose.
Subject to the terms and conditions contained in this Agreement, TicketOS hereby grants Client a non-exclusive, non-sublicensable, non-transferable license to use the (i) Documentation during the Term solely as needed for Client’s use of the Services and (ii) the Reports that Client has exported from the Subscription Services, both during and after the term for the Permitted Purpose.
Client hereby grants TicketOS a non-exclusive, limited license to list and display Client’s name, trademarks and logos within Client’s instance of the Platform and to otherwise use such name, trademarks and logos solely as is necessary for TicketOS to provide the Services to Client.
User accounts, if applicable with respect to the Services, are named user accounts and may only be used by the individual Client user associated with such account. Client will manage access to and distribution of user account credentials and Client shall limit use of the Services to those Representatives (as defined below) of Client that will use the Services solely for the Permitted Purpose and in accordance with the terms and conditions of this Agreement (and further provided, that any such Representatives are not, and are not employed by, competitors of TicketOS). Client shall be responsible for maintaining the confidentiality of the user account credentials and for restricting access to the Services, and shall take reasonable security measures to prevent unauthorized third parties from acquiring access to, or use of, the Services, including, implementing, maintaining and using appropriate administrative, technical and physical security measures, which are no less protective than those used to protect Client’s data, systems and confidential information and which use industry-standard and up-to-date security tools and technologies such as anti-virus protection and intrusion detection methods. In no event and under no circumstances shall TicketOS be held liable to Client for any liabilities or damages, or any unauthorized access to the Services, resulting from or arising out of any compromise of the confidentiality of the account credentials. In the event Client becomes aware that any of the Services has become known to or used by any person or entity in any manner (except as may have been expressly permitted by this Agreement) as a result of action or inaction of Client, Client will (1) immediately notify TicketOS in writing of such event, (2) prevent any further unauthorized disclosure and (3) take all steps reasonably required by TicketOS to remedy such unauthorized use or disclosure. Client understands that the Subscription Services contain software protection procedures (“SPP”) which, in the event of any failure to pay any Fees (as defined below), or use exceeding limits or otherwise in violation of this Agreement, may revoke or limit access to the Subscription Services.
Client shall not use the Services for any purposes beyond the Permitted Purpose or otherwise than in accordance with the Documentation, and in no event shall Client use the Services for the benefit of any other person or entity, or in any manner that would result in harm to the competitive advantage of TicketOS. Without limiting the foregoing, Client shall not at any time, directly or indirectly, (i) copy, modify, alter, enhance or create derivative works of the Subscription Services; (ii) rent, lease, lend, sell, license, sublicense, assign, transfer, or except as otherwise expressly permitted herein, otherwise externally distribute, publish or make available, in any manner or format, the Services; (iii) reverse engineer, reverse compile, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Subscription Services, in whole or in part; (iv) remove any proprietary notices from the Services; (v) use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or in any manner that violates any Applicable Law; (vi) use the Services as a service bureau; (vii) access the Services for purposes of monitoring availability, performance or functionality, or for any other benchmarking or competitive purposes; (viii) use any automated tools (e.g., robots, spiders) or other tools designed to automatically emulate the actions of a human user to access or use the Services or remove, disable or otherwise create or implement any workaround to, any security features contained in the Services; (ix) use the Services in connection with the fulfillment or performance of any federal government contract; (x) use any publicly available artificial intelligence or machine learning application, website, software or tool in connection with the Services without TicketOS’ prior written consent; or (xi) modify or use the Subscription Services with any software or hardware not authorized by TicketOS in writing. Client shall be responsible for causing its Affiliates, and any Representatives of Client or its Affiliates who access the Services to comply with, and be bound by, the terms and conditions of this Agreement, and Client shall be liable for any noncompliance thereby. Any grant of rights or disclaimers or waivers of liability made by Client under this Agreement in favor of TicketOS shall be deemed made by Client on behalf of itself, its Affiliates, and its and their respective Representatives and users.
Fees. In consideration for the Services, Client shall pay TicketOS the fees described in the applicable Order or SOW (the “Fees”), without offset or deduction on or before the due date set forth therefor. If Client fails to make any payment when due, without limiting any other rights or remedies of TicketOS, TicketOS may (i) suspend Client’s access to or stop performing any portion or all of the Services until such amounts are paid in full and (ii) charge interest on the past due amounts at the rate of 1.5% per month, calculated daily and compounded monthly, or if lower, the highest rate permitted under Applicable Law and (iii) require Client (and Client shall) reimburse TicketOS for all reasonable collection costs. , All Fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on TicketOS’ income.
Ownership. As between the Parties, all materials, data and information provided by Client (collectively, “Client Property“) and all Intellectual Property Rights therein and thereto are the sole and exclusive property of Client. Except as may be required by TicketOS to comply with Applicable Laws, Client Property shall be returned to Client or destroyed, at TicketOS’ option, upon the termination of this Agreement, or upon Client’s reasonable written request from time-to-time during the Term (provided, that, notwithstanding anything in this Agreement to the contrary, TicketOS shall not be required to search archived electronic backups of its information technology systems to return or destroy any Client Property contained therein; any Client Property so retained continuing to be subject to the terms and conditions of this Agreement). TicketOS shall not use Client Property in any manner, except as necessary to provide the Services to Client, as authorized by Client or except as may be required by TicketOS to comply with Applicable Laws. Notwithstanding anything to the contrary contained herein, (a) Client hereby grants to TicketOS a non-exclusive, worldwide, fully-paid license to edit, modify, adapt, translate, exhibit, publish, transmit, participate in the transfer of, reproduce, create derivative works from, distribute, perform, display, and otherwise use Client Property as necessary to render the Services to Client; and (b) TicketOS shall have the perpetual right and license to compile, use and disclose all data and metadata derived by Client’s use of the Services, including any and all data contained in Reports delivered to Client hereunder, for any purpose related to its business, including, industry and benchmark reporting; provided that TicketOS shall not use any such data in any way that identifies Client; and (c) Client consents to TicketOS sharing information regarding Client’s ticket and Services usage (including, purpose of use (i.e., personal, business, charity), type of user, load and transfer dates, etc.) with Partner; and (d) Client consents to TicketOS’s use of names and contact information of Client, its Affiliates and its and their users s for purposes of TicketOS’s marketing of its products and services. If Client suggests or recommends changes or improvements to the Services, including new features or functionality relating thereto (”Feedback”), TicketOS is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback, provided, that, such Feedback shall not identify Client in any way. Client hereby assigns to TicketOS, all right, title, and interest in and to, the Feedback, and TicketOS shall be free to use such Feedback without any attribution or compensation to any party. Client acknowledges TicketOS’ and its licensors’ ownership of all right, title, and interest in and to TicketOS’ trademarks, TicketOS’ Confidential Information (as defined below), and the Services (and Intellectual Property Rights therein and thereto), and all derivative works, enhancements, Reports and other templates, materials, or creations of or from the Services or otherwise provided by TicketOS to Client, and any other trade secrets, tools, technologies, and proprietary materials or other Intellectual Property Rights that TicketOS employs or uses in its work pursuant to this Agreement (collectively, “TicketOS Property”). Client shall not claim any right to any TicketOS Property not expressly granted by this Agreement. Except for the limited license specifically provided in Section 3.1, this Agreement shall not transfer to Client any right, title or interest in or to TicketOS Property or in any Intellectual Property Rights therein or thereto.
Representations, Warranties and Covenants; Indemnification.
Each Party represents, warrants and covenants to the other Party that: (a) it will comply with all Applicable Laws which are applicable to it in connection with any actions taken by it under this Agreement; (b) this Agreement is the valid and binding obligation of the representing Party, enforceable against such Party in accordance with its terms; (c) it has the power and authority, and is duly authorized to enter into and perform this Agreement; and (d) such Party is knowledgeable of, and familiar with, all international, federal, state and local laws, rules and regulations, and industry standards relating to privacy applicable to its business (“Privacy Laws“), and with respect to the Services and the purchase and distribution of tickets, it will comply with its respective obligations under any and all Privacy Laws.
In addition to the foregoing, Client represents, warrants and covenants to TicketOS that: (a) with respect to any ticket supplied by Client, Client owns, licenses or controls all necessary rights to allow TicketOS to perform the Services with respect to such ticket; (b) Client owns or otherwise has the rights and all necessary consents to provide any Client Property (including to provide TicketOS with any personally identifiable information (as defined in applicable Privacy Laws) of Client’s Representatives and contacts) and systems access provided by Client to TicketOS, and any use by TicketOS thereof as allowed hereunder or otherwise as used to provide the Services, shall not infringe upon, misappropriate or violate the rights of any third party; (c) Client shall not cause unlawful content to be displayed on the Services or otherwise provide any Client Property that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory, sexually explicit, discriminatory or deceptive and (d) Client’s execution and performance of this Agreement will not violate, or constitute a breach of or default under, any other agreement to which Client is a party, or any order or decree of a court or any governmental authority in any proceeding to which Client is a party.
Client covenants that it will, defend and indemnify the TicketOS from and against any “Claim”, meaning any claim, suit or other formal action by a third party against TicketOS, arising out of any breach of Section 6.2. The obligations of Client under this Section 6.3 include retention and payment of attorneys and payment of court costs as well as settlement at Client’s expense and payment of judgment. . Client will keep TicketOS advised in timely fashion of all material developments.(iii)
Should the Services become, or be likely to become, in TicketOS’ opinion, the subject of infringement of a third party Intellectual Property Rights, TicketOS may, at its sole election, (a) procure for Client the right to continue using the same, or (b) replace or modify it to make it non-infringing, provided that the replacement or modification performs substantially the same functions and substantially matches the performance and functionality of the Services being replaced or (c) require that Client immediately cease all use of the applicable Services, and in the event of any such requirement to cease use, TicketOS shall refund the applicable pro rata portion of any Fees paid, if any, by Client for such Services that relate to the period of the term of the applicable SOW after termination.
Confidentiality and Information Protection.
“Confidential Information” as used in this Agreement shall mean any and all technical and non-technical information disclosed by one Party (the “Discloser“) to the other Party (the “Recipient“) or otherwise accessed by the Recipient from the Discloser that is marked or otherwise identified orally or in writing by the Discloser as confidential or proprietary, together with, regardless of whether or not marked or identified as “confidential” the following: (a) trade secrets, drawings, works of authorship, inventions, know-how, techniques, processes, design details, specifications, software code, technologies, demos (including screenshots from demonstrations) and product samples; and (b) information regarding the Discloser’s internal business, its internal economics (i.e., pricing and costs), its business plans, and its relationships with employees, customers, vendors and contractors, and in addition, with respect to TicketOS specifically, Confidential Information shall include, the Subscription Services, screen layouts, interface layouts, algorithms, design whitepapers, programming documentation, software hosting and security practices, audit reports and summaries thereof, security certificates and summaries thereof, Report templates, and product functionality not available except by use of a login and password, and configuration parameters as well as any and all other TicketOS Property.
Each of the Parties, as Recipient, hereby agrees that it will not, and will cause its Representatives, not to, disclose Confidential Information of the other Party, during or after the Term of this Agreement, other than on a “need to know” basis and then only to: (a) Recipient’s Affiliates and those of its and Affiliate’s employees, officers, consultants, contractors and representatives (collectively, the “Representatives”), provided that all such Representatives are subject to a written confidentiality agreement that shall be no less restrictive than the provisions of this Section, and further provided that such Representatives are not, and are not employed by, competitors of Discloser; or (b) as required by Applicable Law or as otherwise expressly permitted by this Agreement, provided, however that Recipient shall provide Discloser with prior written notice of any such disclosure required by Applicable Law and shall provide reasonable assistance (at Discloser’s request and expense) in obtaining a protective order, and then shall only disclose to the extent required by Applicable Law. Recipient shall not use or disclose Confidential Information of the other Party for any purpose other than as permitted under this Agreement or as necessary to enforce its rights hereunder. Recipient shall treat Confidential Information of the other Party with no less care than it employs for its own Confidential Information of a similar nature that it does not wish to disclose, publish or disseminate, but not less than a reasonable level of care.
Notwithstanding anything in this Section to the contrary, “Confidential Information” shall not include, any information that (a) Recipient rightfully has in its possession when disclosed to it, free of obligation to Discloser to maintain its confidentiality; (b) Recipient independently develops without use or reference to Discloser’s Confidential Information; (c) with the exception of personally identifiable information, is or becomes known to the public other than by breach of this Section; or (d) is rightfully received by Recipient from a third party without the obligation of confidentiality. Any combination of Confidential Information disclosed with information not so classified shall not be deemed to be within one of the foregoing exclusions merely because individual portions of such combination are free of any confidentiality obligation or are separately known in the public domain.
Each Party shall require that their Representatives keep the terms of this Agreement confidential, and each Party shall take reasonable steps to advise their respective Representatives of confidentiality obligations hereunder. Each Party shall be fully liable for any breach of this Section as well as any other Section of this Agreement by its Representatives to the same extent as if such acts or omissions were by such Party.
The terms of this Section 7 and any other confidentiality provisions set forth in this Agreement shall supersede all prior agreements and understandings between the Parties with respect to confidentiality obligations and information protection. This Section 7 shall survive the termination of this Agreement.
Limitation of Liability.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND TICKETOS DOES NOT MAKE ANY OTHER REPRESENTATIONS, WARRANTIES, OR GUARANTEES, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES, TICKETOS PROPERTY, TICKETOS’ WEBSITE, TICKETS, MATERIAL, OR DATA, THAT MAY BE SUPPLIED UNDER THIS AGREEMENT INCLUDING, ANY IMPLIED WARRANTY (A) OF MERCHANTABILITY, (B) OF FITNESS FOR A PARTICULAR PURPOSE, OR (C) ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, AND ALL SUCH OTHER REPRESENTATIONS, WARRANTIES AND GUARANTEES ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, TICKETOS MAKES NO REPRESENTATION, WARRANTY OR GUARANTY OF ANY KIND THAT THE SERVICES WILL MEET CLIENT’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE SECURE, FREE OF HARMFUL CODE OR ERROR FREE. CLIENT RECOGNIZES AND AGREES THAT THE HOSTING OF INFORMATION ONLINE INVOLVES RISKS OF UNAUTHORIZED DISCLOSURE OR EXPOSURE AND THAT, IN ACCESSING AND USING THE SERVICES, CLIENT ASSUMES SUCH RISKS. Notwithstanding anything to the contrary contained herein, TicketOS makes no representation or warranty with respect to the amount of revenues or profits to be derived from Client’s use of the Services, THAT TICKETOS WILL BE ABLE TO RESELL, DONATE OR PROCURE ANY TICKETS, the AVAILABILITY of the Services or the availability of any third-party tickets. CLIENT understands that the Services are provided solely for CLIENT’s internal use and benefit and not for any other person’s use, benefit or reliance, and TICKETOS disclaims any contractual or other responsibility, liability or duty of care to any other person based on the Services.
IN NO EVENT WILL TICKETOS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR WITH RESPECT TO ANY SERVICES, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY CLIENT OR OTHER DATA; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER TICKETOS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL TICKETOS’ AGGREGATE LIABILITY OR FINANCIAL BURDEN ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY SERVICES UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE EXCEED THE ACTUAL AGGREGATE AMOUNT PAID BY CLIENT TO TICKETOS HEREUNDER AS ANNUAL ACCESS FEES FOR THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE LAST CLAIM MADE; OR IF NO ANNUAL ACCESS FEES ARE CHARGED USD $5,000.00. FOR THE AVOIDANCE OF DOUBT, THE LIMIT SET FORTH ABOVE IS CUMULATIVE AND NOT PER INCIDENT. IN NO EVENT SHALL TICKETOS HAVE ANY LIABILITY FOR ANY INFORMATION, DIRECTIONS, SPECIFICATIONS OR MATERIALS PROVIDED BY CLIENT OR A THIRD PARTY NOT UNDER TICKETOS’ CONTROL.
This Section shall survive the termination of this Agreement.
Dispute Resolution. The following procedure will be adhered to in all disputes arising under this Agreement which the Parties cannot resolve through informal good faith negotiations (other than in the case of a party seeking a provisional remedy pursuant to Section 10.3 below). The aggrieved Party shall notify the other Party in writing of the nature of the dispute with as much detail as possible about the deficient performance of the other Party. Within five (5) business days of the receipt of such notice, each Party shall designate a senior manager having authority to resolve the dispute without the further consent of any other person (“Management“), and the Management of each Party shall meet or otherwise act to facilitate an agreement within fourteen calendar days of the date of the written notification. If Management do not meet or cannot resolve the dispute or agree upon a written plan of corrective action to do so within seven calendar days after their initial meeting or other action, or if the agreed-upon completion dates in the written plan of corrective action are exceeded, either Party may submit such dispute to a court of competent jurisdiction in accordance with Section 10.5 below. Except as otherwise specifically provided, neither Party shall initiate litigation unless and until this dispute resolution procedure has been substantially complied with or waived. Failure of a Party to fulfill its obligations in this Section, including failure to meet timely upon the other Party’s notice, shall be deemed such a waiver. This Section 9 shall survive the termination of this Agreement.
Miscellaneous.
Independent Contractor. It is acknowledged, understood and agreed that the Parties are independent contractors in their performance of each and every part of this Agreement, and that neither Party is in any way associated or otherwise connected with the actual performance by the other Party under this Agreement, nor associated or otherwise connected with the employment of labor or incurring of other expenses by the other Party. Nothing in this Agreement shall in any way (a) be construed to constitute that a Party, or any of its agents or employees, be the agents, employees or representatives of the other Party; nor (b) to grant a Party the authority to bind the other Party, except upon the other Party’s prior written consent.
Entire Agreement; Modifications. This Agreement, including the rider “Additional Terms and Conditions for Ticket Sales” which shall apply in addition to the rest of this Agreement to any Services involving the purchase of tickets for Client, constitutes the entire and sole and exclusive statement of the agreement between the Parties with respect to this subject matter hereof. All previous discussions and agreements, oral or written, with respect to this subject matter are superseded and replaced by this Agreement. TicketOS may from time to time amend the T&Cs, including adding or eliminating all or parts of the provisions (“Amendments”). Amended versions of these T&Cs will take effect on the date specified in the amended version. Each time Client uses the Platform, Client is responsible for checking the posted date of the then-current version of these T&Cs. If it is later than the date of the version last reviewed by Client, the T&Cs have been changed and should be reviewed before using the Platform. Use of the Platform after the effective date of the then-current posted T&Cs will constitute Client’s consent to the updated T&Cs which will form a part of this Agreement and supersede the prior T&Cs in their entirety. No other changes, amendments or alterations to this Agreement will be effective unless sin writing and signed by both Parties.
Waiver; Remedies. A waiver of any breach, default or condition under this Agreement will not constitute a waiver, or continuing waiver, of such, or any other subsequent, breach, default or condition. No course of dealing or failure or delay by either Party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial excuse by either Party of any right, power or privilege preclude any further exercise thereof or any other right, power or privilege. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 and in addition, in the case of Client, Sections 3.5 or 3.6, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, and that it will not seek to require the other Party to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise (except as otherwise expressly provided in this Agreement), and subject to any limitations on liability contained within this Agreement. This Section is not intended to limit either Party’s right to equitable relief for breaches or threatened breaches not listed here.
Force Majeure; Third Party Applications. Excepting only Client’s payment obligations, neither Party shall be deemed in default or otherwise liable hereunder due to its inability to perform its obligations by reason of any fire, earthquake, flood, pandemic, epidemic, accident, explosion, casualty, strike, lockout, labor controversy, riot, civil disturbance, act of public enemy, embargo, war, act of God, terrorist act, government shut down, or any municipal, county, state or national ordinance or law, or any executive, administrative or judicial order (which order is not the result of any act or omission which would constitute a default hereunder), or any failure or delay of any transportation, power, or communications system or any other similar cause beyond such Party’s control. In addition to, and not in limitation of the foregoing, Client hereby acknowledges that certain products or services included in the Services or which are necessary for the provision of the Services, or features, functionality or other aspects thereof may be manufactured, supplied or otherwise supported by third parties and not by TicketOS. Client further acknowledges and agrees that, should TicketOS’ access to any such product or service, or functionality, feature or aspect thereof be terminated for any reason, including, as a result of a third party declaring such product or service, or a feature, functionality or aspect thereof “end of service”, “end or support” or “manufacture discontinue”, then TicketOS may, at its option, (i) replace, in whole or in part, such product or service with a product or service with the same or similar features and functionality or (ii) terminate the Order or SOW with respect to such product or service and provide Client with a pro rata refund of unearned Fees previously paid by Client (if any) for the remaining period of the applicable Order or SOW with respect to such terminated product or service.
Client acknowledges that certain of the Services may be accessible only through or be dependent on systems, software or applications owned, controlled or operated by Client or Client’s third-party providers (such Client or third-party owned, controlled or operated systems, software or applications, the “Third Party Applications”). TicketOS as part of, or in connection with the Services, may develop, support or maintain an integration with such Third Party Applications (a “TOS Integration”). Client understands and agrees that (i) Client’s use of the Third Party Applications are governed by Client’s agreement with, and the terms of, the relevant third party provider, as applicable, and not this Agreement (although this Agreement shall control as it relates to TicketOS and the loading, use and leveraging of Services accessible via such Third Party Applications), (ii) Client’s ability to receive the applicable Services is conditioned on Client’s maintenance of, and compliance with, an active license or subscription, as required and applicable, for the Third Party Applications, (iii) TicketOS is not responsible for the acts or omissions of the providers of Third Party Applications or any failures, delays or security breaches relating to, or caused by, the Third Party Applications, and is not responsible for the support or maintenance of any Third Party Applications, and (iv) Client hereby consents to TicketOS’ access to and use of the Third Party Applications (and Client’s environment and data therein) for purposes of TicketOS’ provision of Services, and Client will provide TicketOS with such technical access to Third Party Applications as is needed for TicketOS to provide the Services. TicketOS does not make any representations or warranties regarding any Third-Party Applications, all of which are hereby expressly disclaimed.
Governing Law; Submission to Jurisdiction. The Parties hereby agree that this Agreement shall be governed by and interpreted in accordance with the laws of the State of New Jersey, without reference to conflict of laws principles; and the Parties hereby consent to the exclusive jurisdiction of the Federal and State courts located in Essex County, New Jersey for any dispute arising out of or related to this Agreement.
Enforceability; Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. For purposes of this Agreement, (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation;” (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to sections, schedules, and exhibits mean the sections of, and schedules and exhibits attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
Survival of Obligations. The obligations of the Parties under this Agreement that, by their nature, would continue beyond termination of this Agreement, including all liabilities and obligations that have accrued prior to the effective date of any such termination, shall so survive.
Notices. All notices required to be provided hereunder shall be in writing and shall be delivered by any of the following means: (a) personally by hand delivery (i.e., via messenger) or by United States Postal Service, certified, return receipt requested, Federal Express, or other internationally recognized receipted overnight or courier service, postage prepaid; (b) by a confirmed (confirmation report printed) facsimile transmission with follow up copy sent by one of the aforesaid means; or (c) sent electronically via email with follow-up copy sent by one of the aforesaid means, to the intended Party. Notice shall be deemed delivered upon the earliest of the date of personal delivery or facsimile transmission or email transmission or the date of delivery as indicated by Federal Express or other internationally recognized receipted overnight or courier service, or the date indicated on the return receipt from the United States Postal Service. Notices shall be addressed to the appropriate Party at its address within this Section or, in the case of Client, to the address first mentioned above.
Next Sports & Entertainment, LLC., Attn: Legal Department
16 Portland Place, Montclair, NJ, 07042
Assignment. This Agreement shall be binding upon and inure to the benefit of each of the Parties, their permitted successors and permitted assigns. Client may not assign this Agreement or any of its rights or delegate any of its obligations, in each case, whether voluntarily or involuntarily, by operation of law or otherwise without the prior written consent of TicketOS, which consent shall not be unreasonably withheld or delayed. Any assignment or delegation in violation of the foregoing shall be null and void.
Headings & Captions; Attorney Review. Headings and captions contained in this Agreement are for convenience only and should not be considered in interpreting the provisions hereof. This Agreement has been fully reviewed and negotiated by the Parties with the opportunity to be assisted by counsel.
