Flicket SaaS General Terms – USA

1. Definitions and Interpretation

1.1 In the Agreement, unless specified otherwise:

Addendum means any addendum that is attached to these General Terms or any Order Form and that applies to the Add-On Services purchased by a Client;

Add-On Services has the meaning set out in the Order Form;

Agreement means these General Terms and any Order Form entered into between the parties, including any Addendums;

Analytical Data has the meaning set out in clause 6.1;

Applicable Law means all laws, statutes, regulations, industry codes and other legal requirements which are applicable to a party in connection with the Agreement;

Authorized User means Client Users and End Users;

Authorized User Account has the meaning set out in clause 5.1;

Business Day means a day other than a Saturday, Sunday, or public holiday in California, USA;

Client means the entity identified as the client on the Order Form;

Client Data means any information, material or data (including Personal Information) that is submitted, uploaded or input into the Software by Client or an Authorized User, and any modified form of that information that is created through the use of the Software;

Client Event means any event operated, hosted, organised and/or promoted by Client using the Cloud Services;

Client Tasks means the tasks (if any) specified in the Order Form that Client is required to carry out in relation to the Services;

Client User means any employee, officer, agent, delegate and/or contractor of Client who accesses the Software;

Cloud Services has the meaning set out in the Order Form;

Commencement Date is the date that the Order Form becomes effective as recorded in the Order Form or, if no date is recorded in the Order Form, the date of last signature of the Order Form;

Confidential Information means any information, verbal or written, including documents, plans, software, market research data, product literature, trade secrets, processes, technical information, know-how, documentation, Intellectual Property Rights and any financial and commercial information (including, without limitation, pricing and pricing models) relating to the business of either party or any of either party’s related or associated companies. For the avoidance of doubt, Client Data is the Confidential Information of Client and all information relating to the Services is the Confidential Information of Flicket;

Contract Year means the 12 month period from the Commencement Date and each anniversary of that date;

Documentation means the documentation (if any) made available to you by us through the Cloud Services or made available on the Website, which sets out a description of the Cloud Services and the user instructions for the Cloud Services, including any Suggestions;

Emergency Maintenance has the meaning set out in clause 10.2(b);

End User means an individual customer of Client who accesses the Cloud Services;

Feedback has the meaning set out in clause 8.3;

Fees means the specific amounts which are to be paid by Client to Flicket for the Cloud Services, the Support Services, and Add-On Services (if any), as set out in the Order Form;

Flicket means the Flicket entity providing the Services as identified in the Order Form;

Flicket IP has the meaning set out in clause 8.1;

Force Majeure Event means any event which is beyond the reasonable control of a party and includes acts of God, natural disaster, war, hostilities, piracy, terrorism, epidemic, pandemic, any law or any action taken by a government or public authority, riot or fire;

General Terms means these Flicket SaaS General Terms located at https://www.flicket.io/terms/usa;

Good Industry Practice means exercising the skill, diligence, care, and foresight expected of a highly skilled and experienced person in the same or similar circumstances;

GST means goods and services tax payable under the New Zealand Goods and Services Tax Act 1985;

Initial Term has the meaning set out in the Order Form;

Intellectual Property Rights means all intellectual property rights and includes any patents, registered designs, utility models, trade marks (including logos and trade names), domain names, copyright, rights in computer software and databases, know-how and trade secrets, image and personality rights (including all things recording that intellectual property), in each case whether registered, in the course of being registered or unregistered and any analogous rights worldwide;

Minimum Transaction Commitment means the minimum transaction target applicable to the Initial Term, as specified in the Order Form;

Order Form means any document agreed between the Client and Flicket specifying the commercial and technical terms applying to Flicket’s provision of the Services;

Payment Details has the meaning set out in the Order Form;

Personal Information has the meaning given by the New Zealand Privacy Act 2020, and includes personal information or personal data as defined in the relevant privacy law of the Client’s jurisdiction;

Purpose has the meaning given in clause 3.1;

Recipient means a party that receives Confidential Information;

Renewal Term has the meaning set out in the Order Form or, if there is no term set out in the Order Form, means a period of one year from the expiry of the Initial Term or the then current Renewal Term;

Required Service Change has the meaning set out clause 15.2;

Scheduled Maintenance has the meaning set out in clause 10.2(c);

Services means the Cloud Services, the Support Services and any Add-On Services;

Software has the meaning set out in the Order Form;

Suggestions means any example, template, sample or suggested messaging, text, copy or other marketing material provided by Flicket to Client;

Support Services means the support services described in the Order Form;

Term means the Initial Term together with any Renewal Term(s) unless earlier terminated;

Third Party Providers has the meaning set out in clause 12.5(a);

Third Party Services has the meaning set out in clause 12.5(a);

Updates has the meaning in clause 15.2(c);

Virus means any thing or device (including any software, code, file or program) which may:

(a) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device;

(b) prevent, impair or otherwise adversely affect access to data, including the reliability of data (whether by re-arranging, altering or erasing the data in whole or part or otherwise); or

(c) adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices; and

Website means https://www.flicket.io/ or such other site as notified or made available by Flicket from time to time.

1.2 Once an Order Form is signed by both parties, that Order Form together this these General Terms and any Addendums forms an Agreement between the parties. If there is a conflict between any terms of the Agreement, the following order of priority will apply to resolve the conflict (unless the Agreement explicitly says otherwise):

(a) first, the then-current General Terms;

(b) second, the Addendum(s); and

(c) third, the Order Form (provided that if an Order Form expressly identifies a clause or part of the General Terms or any Addendum and expressly varies or overrides that clause or part, that variation will apply in accordance with its terms and will not be considered a conflict).

(b) If there is any conflict between one or more Agreements, the Agreement that is later in time will prevail.

2. Term

2.1 The Agreement starts on the Commencement Date and, unless terminated earlier, will continue for the Initial Term.

2.2 On expiry of the Initial Term or the then-current Renewal Term, the Agreement will automatically renew for further Renewal Terms unless:

(a) either party gives the other party written notice of termination not less than 60 days before the expiry of the then-current term, in which case the Agreement will terminate upon the expiry of the then-current term; or

(b) the Agreement is otherwise terminated in accordance with its terms.

3. Services

3.1 From the Commencement Date until the termination of the Agreement, Flicket:

(a) grants to Client a royalty-free, non-exclusive, revocable, non-transferable, non-sublicensable right to access and use (and to enable Authorized Users to access and use) the Cloud Services and the relevant Documentation for the purpose of promoting, publishing information on, and selling tickets relating to, Client Events (Purpose);

(b) will provide the Support Services and Add-On Services (if any) to Client,

3.2 Client will be solely responsible for:

(a) procuring and maintaining all facilities required to use the Cloud Services, including devices, computer hardware, network connections and telecommunications links;

(b) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Client’s network connections or telecommunications links or caused by the internet; and

(c) Client’s own business continuity, disaster recovery, security and authentication processes and procedures relating to the Cloud Services.

3.3 At Flicket’s request, Client will allow Flicket’s representative to access Client’s premises, IT systems/network/environment, and/or records, to verify Client’s compliance with the Agreement. In addition, Flicket may remotely monitor Client’s (and Authorized Users’) use of the Cloud Services to verify Client’s compliance with the Agreement.

4. Client Obligations

4.1 During the Term, Client will not engage, procure or use (directly or indirectly) any third party cloud service to sell or distribute tickets to any event, operated, hosted, organised, and/or promoted by Client. A breach of this clause shall be deemed a material breach of the Agreement and shall entitle Flicket to any remedies available at law or in equity, including termination of the Agreement, injunctive relief, and damages.

4.2 Client will:

(a) carry out the Client Tasks and its other obligations to an adequate standard, and in a timely, competent, efficient, and professional manner, using appropriate care and skill;

(b) consult, co-operate and coordinate activities with Flicket and its personnel and provide any assistance reasonably required (whether or not such assistance is a Client Task);

(c) obtain any licences, authorizations, or consents to enable Flicket to carry out its obligations under the Agreement (including in relation to any Client Data provided to Flicket under or in connection with the Agreement);

(d) comply with all Applicable Law (including the Privacy Act 2020 (in respect of the collection, use and disclosure of Personal Information that is included in Client Data), Consumer Guarantees Act 1993, Fair Trading Act 1986 and the Unsolicited Electronic Messages Act 2007, or equivalent legislation, regulations or industry codes in the Client’s jurisdiction) relevant to or related to Client’s and Authorized Users’ use of the Services;

(e) conduct its business in a manner that reflects favourably at all times on Flicket and Flicket’s good name, goodwill and reputation; and

(f) comply with any reasonable instructions specified by Flicket in respect of the Services.

4.3 If Client fails to comply with clause 4.2:

(a) Flicket will not be liable for any failure or delay in providing the Services; and

(b) Flicket may charge, and Client will pay, any additional costs incurred that result from such failure and any additional time expended by Flicket.

4.4 In respect of Client Events, Client acknowledges and agrees that Client is solely liable for:

(a) all communications with End Users relating to Client Events; and

(b) all refunds and charges payable in respect of all tickets for interrupted, cancelled or postponed Client Events.

4.5 Client indemnifies Flicket for any loss, cost, damages, liabilities and expenses of any kind incurred by Flicket as a result of any claim(s) made by an End User or a third party relating to Client’s use of the Services or any Client Event.

5. Use Restrictions

5.1 Client will procure that each Authorized User creates its own Authorized User account to access the Cloud Services (each an Authorized User Account).

5.2 Client will ensure that each Authorized User complies with the terms of the Agreement applicable to the Authorized User’s use of the Cloud Services and any other end user terms of use made known to the Authorized User through their use of the Cloud Services. Any act or omission of an Authorized User, and all activity occurring on an Authorized User Account, will be treated as an act or omission of Client.

5.3 Client will and, where applicable, will procure that each Authorized User will:

(a) keep the Authorized User Account login, passwords and/or registration details secure and confidential; and

(b) promptly disable any Authorized User Account if Client or Flicket discover any details have been shared or compromised.

5.4 Client will not, and, where applicable, will ensure that its Authorized Users will not:

(a) use, or permit the use of, the Cloud Services and/or Documentation for any purpose other than the Purpose;

(b) except as may be permitted by any Applicable Law which is incapable of exclusion, copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any part of the Services, Documentation or the Software other than as expressly permitted by this Agreement;

(c) decompile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services or the Software;

(d) access the Services or use Documentation or the Software to build a product or service which is the same or similar to, or otherwise competes with, the Services or the Software;

(e) remove, disable, circumvent, or undermine the integrity of any security or technical measures, including any digital rights management system or other content protection or features used by Flicket, that control access to:

(i) the Cloud Services, Documentation or the Software; or

(ii) Flicket’s or any third party’s systems, networks or resources used in providing the Services, Documentation and Software;

(f) access, store, distribute or transmit any Viruses;

(g) obtain, or assist third parties in obtaining, access to the Services, Documentation or Software, or other related materials, other than as provided under the Agreement; or

(h) attempt to do any of the things specified in paragraphs (a) to (g) above.

5.5 Client will use all reasonable efforts to prevent any unauthorized access to, or use of, the Services, Documentation and Software, and in the event of any such unauthorized access or use, promptly notify Flicket. Where Client is in breach of clauses 5.3 or 5.4, Flicket may immediately, without liability and without limiting its other rights and remedies, disable or otherwise suspend some or all of the Client’s (or Authorized User’s) access to the Services and Software. Flicket will restore Client’s access after Client has resolved the breach giving rise to the restriction of access. Client remains responsible for the payment of all Fees during the period of restriction.

6. Client Data

6.1 Flicket acknowledges and agrees that as between Client and Flicket, Client owns the Client Data. Client grants, or will procure that its licensors grant to, Flicket a royalty-free, non-exclusive, transferable, sub-licensable right to:

(a) access, use, modify and store the Client Data as required to provide the Services and Software in accordance with the Agreement;

(b) process and use Client Data and information about Client’s (including Authorized Users’) use of the Services to generate anonymised and aggregated statistical and analytical data (Analytical Data); and

(c) process and use Client Data and information about Client’s (including Client Users’ and End Users’) use of the Services to further develop, improve and/or enhance Services.

6.2 Except as provided in clause 6.1, Flicket will only process Client Data on Client’s behalf for the purposes of performing Flicket’s obligations under the Agreement. Client acknowledges that it remains responsible for ensuring that its collection, use and processing of Personal Information contained in Client Data via the Cloud Services complies with applicable privacy laws.

6.3 Client is responsible for the legality, reliability, integrity, accuracy, and quality of the Client Data.

6.4 Client will procure any rights and permissions required from Authorized Users for Flicket to use and process the Client Data (including Personal Information) and Analytical Data as set out in the Agreement.

6.5 Client will not, and will ensure that its Authorized Users will not post any Client Data on the Software (including links to other content), or otherwise engage in any activity through the Software, that:

(a) breaches the Intellectual Property Rights, or any other rights, of any third party;

(b) uses another person’s Personal Information other than for the specific purposes for which that person’s Personal Information was provided to Client;

(c) is objectionable (including being false, misleading, defamatory, inaccurate, abusive, sexually-related, racially or ethnically objectionable in nature, or otherwise objectionable); or

(d) contains any Viruses.

6.6 Flicket may at any time:

(a) refuse to post any Client Data; or

(b) edit or remove Client Data,

that Flicket in its discretion considers breaches the Agreement or is otherwise inappropriate for the Software or Cloud Services.

6.7 Client indemnifies Flicket for any loss, cost, damages, liabilities and expenses of any kind incurred by Flicket as a result of any claim(s) that Flicket’s access, storage, modification and/or use of Client Data as permitted under the Agreement infringes the Intellectual Property Rights or any other rights of any third party.

7. Fees

7.1 Client will pay the Fees in accordance with the Payment Details set out in the Order Form.

7.2 All amounts payable by Client under the Agreement will be paid without any set-off or other deduction.

7.3 If any payment to Flicket or invoiced by Flicket is disputed, Client will notify Flicket of the reasons for disputing the whole or any part of the payment or invoice (as the case may be) within 10 Business Days of the payment being made or receipt of the invoice (as applicable). Client will pay all undisputed amounts by the due date for payment set out in the Payment Details.

7.4 Unless specifically indicated otherwise, all amounts payable are to be paid in USD.

7.5 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 Supplier’s income.

7.6 If Client fails to pay any amount due, Flicket may without prejudice to its other rights or remedies under the Agreement:

(a) charge interest on the amount owing from the due date until the date of actual payment at 2% per annum over the base overdraft rate charged by Flicket’s bankers from time to time; and/or

(b) suspend the provision of the Services and/or Software, without liability to Client.

7.7 Client will indemnify Flicket for all reasonable costs incurred in receiving overdue amounts owed by Client under the Agreement, including legal costs, debt collection costs or any other expenses or costs incurred by Flicket to collect amounts owing.

7.8 Flicket may at any time and frequency after the end of the Initial Term:

(a) increase any, or introduce new, Fees; and/or

(b) amend its pricing model,

by giving Client at least 30 days’ prior written notice. If Client does not wish to pay the increased or new Fees or does not agree to the new pricing model, it may terminate the Agreement by giving notice to Flicket at least 10 Business Days prior to the effective date of the increased Fees or introduction of the new Fees or pricing model.

8. Intellectual Property Rights

8.1 Client acknowledges and agrees that Flicket or its licensors, own all Intellectual Property Rights in the Software, Services and Documentation, including any modifications or enhancements to the Software, Services and Documentation, (together, Flicket IP). Except as expressly stated in the Agreement, Flicket does not grant Client any Intellectual Property Rights in or to, or any other rights or licences in respect of, the Flicket IP.

8.2 Client acknowledges and agrees that the Flicket IP may include open source software that has been contributed by third parties and all Intellectual Property Rights in that software remains with those third parties. Client must maintain any trademark or copyright notices on the Software and any Service.

8.3 Client may provide Flicket with comments, suggestions and other feedback regarding the Flicket IP, including but not limited to usability, missing features, functional errors, and bug reports (Feedback). Client agrees that any Feedback provided to Flicket may be used by Flicket for any purpose and without compensation of any kind to Client, and Flicket will be the sole owner of any and all software, documentation, improvements or other items developed by Flicket that may relate to such Feedback.

8.4 This clause 8 will survive termination of the Agreement.

9. Confidentiality

9.1 Subject to clause 9.2, the Recipient must:

(a) keep any Confidential Information of the other party confidential and secure; and

(b) only use the other party’s Confidential Information to exercise its rights and perform its obligations under the Agreement; and

(c) only disclose the other party’s Confidential Information to its employees, agents and contractors who need to know it for those purposes, ensuring they keep it confidential.

9.2 The obligations of confidentiality in clause 9.1 will not apply to information that:

(a) the Recipient has prior written consent from the other party to disclose and/or use;

(b) the Recipient can clearly show was independently available to it from a third party with the right to disclose it; or

(c) is in the public domain through no fault of the Recipient or any other person to whom the Recipient discloses the information.

9.3 Where the Recipient is obliged by law, a regulator or the rules of any stock exchange to disclose the other party’s Confidential Information, the Recipient may do so provided that the Recipient has (to the extent legally permitted) first advised the other party of this obligation, has allowed the other party reasonable time to avoid the disclosure having to be made, and the Recipient only discloses Confidential Information to the extent that it is obliged to do so.

9.4 Subject to clause 9.5, the Recipient must immediately, on the reasonable request of the other party, return, destroy or delete (at the Recipient’s option) all documents or other materials containing the other party’s Confidential Information which is in the Recipient’s possession, power or control or in the possession, power or control of persons who have received Confidential Information from it under clauses 9.1(c), unless the Recipient has a right under the Agreement or under Applicable Law, to retain it, and the Recipient will provide confirmation in writing to the other party once the Confidential Information has been destroyed or deleted (if applicable).

9.5 The obligation in clause 9.4 does not apply to:

(a) copies of any Confidential Information held in an electronic storage system where it is not reasonably possible to delete this information (in which case the Recipient agrees not to access that Confidential Information, unless required by law); and

(b) its own board papers which, for legitimate reasons, refer to or contain the Confidential Information.

9.6 This clause 9 will survive termination of the Agreement.

10. Termination and Suspension

10.1 Flicket may terminate the Agreement (or, in Flicket’s discretion, suspend or restrict Client and/or Authorized Users’ use of the Services in whole or in part) immediately on written notice, if:

(a) use of the Services by Client or the Authorized Users presents a material security risk or will interfere materially with the proper continued operation of the Services;

(b) required by Applicable Law, including via an order or direction from a court or governmental body;

(d) Flicket considers it necessary to do so to protect Flicket’s interests or reputation, or the interests of the Services or any other person.

10.2 Flicket may suspend access to the Services at any time:

(a) where Flicket has the right to do so under clauses 5.5 and 7.6 of the Agreement;

(b) in the event of an emergency or to respond to a security risk or fraudulent activity (Emergency Maintenance); and

(c) to carry out maintenance, updates, modifications or other development activity (routine, scheduled or otherwise) as deemed necessary or desirable by Flicket (Scheduled Maintenance). To the extent feasible and taking into account the impact on the security of the Services, Flicket will use commercially reasonable efforts to notify Client in advance of any Scheduled Maintenance.

10.3 Either party may terminate the Agreement immediately on written notice, if:

(a) the other party commits a material breach of the Agreement and the breach:

(i) is not capable of being remedied; or

(ii) is not rectified within 30 days of receiving notice from the non-defaulting party requiring the breach to be rectified; or

(b) the other party ceases operations, goes into liquidation, or has a receiver or statutory manager appointed of any of its assets, becomes bankrupt or insolvent or makes any arrangement with creditors.

10.4 If the Agreement is terminated:

(a) except where Client terminates the Agreement under clause 10.3(a), Client will immediately pay:

(i) the Fees that are unbilled as at the time of termination;

(ii) where the Minimum Transaction Commitment has not been met, Fees equal to the Minimum Transaction Commitment amount less any Fees paid by Client that count towards the Minimum Transaction Commitment; and

(iii) any previous invoices that remain unpaid;

(b) Client will, and will procure that Authorized Users will, immediately cease to use the Services and the Software; and

(c) Flicket may at any time delete some or all Client Data. Client must ensure that Client Data is backed-up or replicated before termination.

10.5 Termination of the Agreement will not affect the provisions of the Agreement which are intended to continue, or should reasonably continue, after termination (whether expressly stated so or not), including this clause 10 and clause 12. Termination will not affect any claim by either party against the other party arising out of any breach or failure under the Agreement prior to termination.

11. Warranties

11.1 Flicket warrants to Client that to the best of its knowledge and belief the provision of the Cloud Services will not infringe the copyright of any third party. For the avoidance of doubt, this warranty does not extend to any Client Data stored or processed in, or used to configure, the Cloud Services, which remains the responsibility of Client.

11.2 Subject to clause 11.1 and those warranties or representations that cannot be excluded by law, the Services and Software are provided on an “as is” basis and all representations, conditions or warranties in respect of the Services and the Software (whether express or implied, statutory or otherwise, and including warranties of merchantability and fitness for a particular purpose) are expressly excluded. Flicket is not liable to Client for any representations that Client makes to End Users or any third party in respect of the Services.

11.3 The parties agree that the provisions of the New Zealand Consumer Guarantees Act 1993 and sections 9, 12A, 13, and 14(1) of the New Zealand Fair Trading Act 1986 do not apply to the Agreement.

11.4 Without limiting clauses 11.2 and 11.3, Flicket does not warrant:

(a) that Client’s or End Users’ use of, or access to, the Services or the Software will be uninterrupted or error-free, accurate or fit for purpose;

(b) that the Software or Services will meet Client’s or any End User’s requirements;

(d) that the Cloud Services will be secure or free from Viruses.

11.5 If Client or Flicket (acting reasonably) is made aware of a breach or suspected breach of clause 11.1, Flicket will use reasonable endeavours to, at Flicket’s election, either:

(a) obtain for Client the right to continue to use the Software or impacted component of it in accordance with the Agreement; or

(b) replace or modify the Software or impacted component of it so that it becomes non-infringing,

but in each case Flicket must ensure that the remedy does not materially adversely affect the Software, or Client’s use of it, and where Flicket determines acting reasonably that the above (a) – (b) are not reasonably commercially available or feasible, Flicket may terminate the Agreement and refund Client the portion of any prepaid amounts for the Services that have not been provided at the date of termination.

11.6 Clause 11.5 sets out Client’s sole and exclusive remedy in respect of any breach of the warranty set out in clause 11.1.

11.7 Client acknowledges and agrees that Suggestions:

(a) do not constitution any legal, regulatory or compliance advice;

(b) are provided for informational purposes and to provide examples only; and

Flicket does not warrant that the use or execution of the Suggestions will result in compliance with Applicable Laws or that the Suggestions are up to date, accurate, correct, reliable or complete at the time they are provided. Client is responsible for reviewing and evaluating the appropriateness of Suggestions, as well as any decisions made or actions taken by Client in response to such Suggestions, against Client’s own criteria. To the maximum extent permitted by law, Flicket will not be liable for any loss or damage, arising out of or connected to the Client’s reliance on, or use of, the Suggestions.

12. Liability

12.1 Subject to clause 12.3, and to the extent permitted by Applicable Law, neither party will be liable to the other party under the law of tort, contract or otherwise for any:

(a) indirect or consequential loss arising out of, or in connection with, the Agreement; and

(b) loss of revenue, loss of profit, data loss or corruption arising out of, or in connection with, the Agreement.

12.2 Subject to clause 12.3, and to the extent permitted by Applicable Law, the maximum liability of either party to the other party for any and all claims under the Agreement whether in contract, tort (including negligence) or for any other common law or statutory cause of action, in respect of a Contract Year is limited in aggregate to the total Fees paid by Client to Flicket under the Agreement in respect of that Contract Year as at the date liability first arises.

12.3 Clauses 12.1 and 12.2 will not apply to limit:

(a) either party's liability for a breach of clause 9 (Confidentiality);

(b) either party's liability for an infringement of the other party's Intellectual Property Rights;

(d) Client’s liability for breach of clause 5 (Use Restrictions); and

(e) Client’s obligation to pay any Fees or other charges under or in connection with the Agreement.

12.4 Flicket will not be liable to Client for any loss suffered by Client:

(a) as a result of any default, breach of the Agreement, or any negligent act or omission of Client or an Authorized User (including any unpermitted use of the Flicket IP or any component of it); or

(b) due to any delay, where that delay was (in whole or in part) the fault of Client in any material way.

12.5 Client acknowledges that:

(a) Flicket may rely on the provision of services by third parties (including data centre providers, payment processors and telecommunications providers) (Third Party Services) in order to perform its obligations under the Agreement and that the performance of those obligations may be subject to limitations, delays and other problems inherent in the use of such Third Party Services provided by third parties (Third Party Providers);

(b) Flicket will not be responsible for any delays, delivery failures, penalties, liquidated damages, or any other loss or damage arising out of or in connection with any Third Party Services, including any delays, delivery failures, penalties, liquidated damages, or any other loss or damage resulting from the transfer of data over communications networks and facilities (including the internet); and

(c) Flicket may require Client to enter into an agreement directly with the Third Party Provider for supply of the Third Party Services. Where Client enters into a direct agreement with a Third Party Provider, Flicket will not be responsible for the performance of the applicable Third Party Services, and any claim or remedy for Client in respect of the applicable Third Party Services will be pursuant to Client’s agreement with the Third Party Provider.

13. Subcontracting

13.1 Flicket may subcontract any of its obligations under the Agreement without obtaining Client’s prior written consent.

13.2 If Flicket uses a subcontractor in respect of the Agreement, Flicket is not relieved of any of its liabilities or obligations under the Agreement.

14. Disputes

14.1 If a dispute arises out of or relates to the Agreement (Dispute), a party may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with the following provisions of this clause 14, except where the party seeks urgent interlocutory relief.

14.2 A party claiming the Dispute has arisen must give written notice to the other party specifying the nature of the Dispute.

14.3 On receipt of that notice, the parties will use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation, or other informal means.

14.4 If the Dispute is not resolved within 15 Business Days after notice is given pursuant to Section 14.2 (or within any extended period agreed upon in writing by the parties), either party may, by providing written notice to the other party, require that the Dispute be submitted to arbitration by a single arbitrator (except in cases requiring urgent interlocutory relief). The arbitrator shall be appointed by mutual agreement of the parties or, if the parties fail to reach an agreement within 5 Business Days of the notice requiring arbitration, the arbitrator shall be appointed by the American Arbitration Association (AAA) upon the application of either party in accordance with the AAA’s Commercial Arbitration Rules and Procedures then in effect. The arbitration shall be conducted as promptly as possible and in accordance with the provisions of the Federal Arbitration Act (FAA). The seat of the arbitration shall be in San Francisco, California. The arbitrator’s decision shall be final and binding on the parties, with no right of appeal except as permitted under the FAA.

15. Changes

15.1 Subject to clauses 7.8 and 15.3, any change to the Agreement requested by either party is only effective if expressly agreed in writing by both parties (including over email).

15.2 Client acknowledges that:

(a) in providing the Services, Flicket utilises various Third Party Services which Flicket is not the only purchaser and/or consumer of and as such these Third Party Services are subject to change without the approval of Flicket;

(b) there may be circumstances where there is change to Applicable Law that may, in Flicket’s reasonable opinion, materially affect the ability of Flicket to provide the Services, the manner or cost of providing them or the manner in which Client is able to use the Services; and

(c) the Software is provided on a one-to-many software-as-a-service basis and Flicket may add, remove, change, update, upgrade and/or disable features and capabilities temporarily or permanently from time to time (together, Updates). Client may be required to install Updates to the Cloud Services or to update or upgrade the devices Client or Client’s Users’ use to access the Cloud Services or the operating system running on those devices in order to continue to use the Cloud Services properly or at all. Unless Flicket specifies otherwise, Updates will be provided at no cost,

and any change to the Services and/or Software arising out of the above situations is a Required Service Change.

15.3 Client will be deemed to have accepted a Required Service Change unless Client, acting reasonably, notifies Flicket of a material adverse impact on its business as a result on the Required Service Change within 15 Business Days of the Required Service Change becoming effective.

15.4 If the parties, acting reasonably, are unable to agree a solution to address the material adverse impact within 15 Business Days of Flicket’s receipt of notice given by Client under clause 15.3, then either Flicket or Client may terminate the Agreement by giving notice to the other, or the parties may agree in writing to extend the period for finding a solution.

15.5 Clauses 15.3 and 15.4 set out the sole and exclusive remedies in respect of any Required Service Change.

16. General

16.1 The Agreement constitutes the entire agreement of the parties about its subject matter and supersedes any previous understanding or agreements on that subject matter.

16.2 If any part or a provision of the Agreement is judged invalid or unenforceable, it is severed and the remainder of the Agreement will continue to operate.

16.3 A provision or a right under the Agreement may not be waived except in writing signed by the party granting the waiver.

16.4 A party may exercise a right, power or remedy under the Agreement at its discretion, and separately or concurrently with another right, power or remedy. A single or partial exercise of a right, power or remedy by a party does not prevent a further exercise of that or of any other right, power or remedy.

16.5 Client will not assign, transfer, or otherwise deal with the Agreement, or any of its rights or obligations under the Agreement, whether in whole or in part, without the prior written consent of Flicket. A change in the ownership of Client is deemed to be an assignment or transfer of the Agreement for the purposes of this clause.

16.6 The parties are independent contractors. Nothing contained in the Agreement will be deemed to create any association, partnership, joint venture, or relationship of principal and agent between the parties. Client must not, and must procure that its employees, agents, or other representatives do not, make any statement, representation or warranty regarding the Services to any End User or third party that binds Flicket.

16.7 Except for Client’s obligation to pay the Fees and other amounts payable to Flicket under the Agreement, neither party will be liable for any delay or failure to perform its obligations under the Agreement if the delay or failure was caused by any Force Majeure Event and which could not have been prevented by using Good Industry Practice. If a Force Majeure Event occurs, the affected party must promptly give written notice of the fact and circumstances of the Force Majeure Event to the other party and use its best efforts to mitigate any effects.

16.8 Any notice or communication to be given under the Agreement must be delivered personally or sent by email to the intended recipient's address as set out in the Order Form (or to such other address as the intended recipient notifies to the other party by written notice in accordance with this clause from time to time). Any notice or communication will be deemed to be received:

(a) when delivered, if delivered personally; and

(b) when the email is sent, if sent by email provided that:

(i) the sender can demonstrate that the email was sent to the correct email address of the recipient; and

(ii) no error message was received by the sender to indicate that the email did not reach its intended destination,

however, if the notice or communication is delivered after 5.00pm or on a non-Business Day, then it will be deemed not to be received until 9:00am on the next Business Day.

16.9 This Agreement is governed by and will be interpreted in accordance with the laws of the State of California. Subject to the provisions of clause 14.4, both parties agree to submit to the exclusive jurisdiction of the courts, state and federal, sitting in Los Angeles County, California.

16.10 This Agreement may be executed in any number of counterparts (including any scanned PDF counterpart), each of which will be deemed an original, but all of which together will constitute the same instrument. No counterpart will be effective until each party has executed at least one counterpart.

16.11 We reserve the right to modify, amend, or update these Terms and Conditions at any time, at our sole discretion. Any changes will be effective immediately upon posting the updated Terms and Conditions on our website. It is your responsibility to review these Terms and Conditions periodically to ensure your familiarity with their current version. Your continued use of our services after the publication of the updated Terms and Conditions constitutes your acceptance of those changes.

Addendum – Ticket Refund Programme Terms and Conditions

This Addendum forms part of the Flicket SaaS Agreement between Supplier and Client and contains the specific terms applicable to the Ticket Refund Programme Add-On Service.

Client agrees and acknowledges that:

1.1 Yeltrah Limited (trading as EventCover) manages and operates a ticket refund programme (Ticket Refund Programme) under which participating End Users are eligible to receive a refund of the ticket price from EventCover if they are unable to attend a Client Event due to circumstances outlined in EventCover’s terms and conditions, as amended by EventCover from time to time, (EventCover Terms);

1.2 For each Client Event, End Users purchasing tickets will be provided with an option to join the Ticket Refund Programme at the point of sale on the Cloud Services.

1.3 The EventCover Terms are an extension of the Client’s terms and conditions for the event. The Client agrees to incorporate the EventCover Terms into their own event terms and conditions, ensuring they form part of the overall agreement with the End Users.

1.4 EventCover will handle all aspects of refunds, administration, and liability under the Ticket Refund Programme, provided the extended terms and conditions are met.

1.5 Supplier (Flicket) holds no liability towards either the Client or an End User concerning the programme.

1.6 Client remains solely liable for all refunds and charges payable to End Users in respect of all tickets for interrupted, canceled, or postponed Client Events.

1.7 Client irrevocably waives any claim against Supplier and indemnifies Supplier against any claims by End Users in connection with any interrupted, canceled, or postponed Client Events and the Ticket Refund Programme.

1.8 Supplier is not responsible for any refunds, charges, or other obligations relating to Client Events, including but not limited to those related to the Ticket Refund Programme.

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