LAST UPDATED MAY 11, 2021
This Custom Ticket Site Agreement (this “Agreement”) is a legal agreement between TicketWebsites, LLC (“TWL”), and you, or the individual, company or other entity that you represent (“Subscriber” or “you”) for the purchase of a Custom Ticket Site subscription. Please read this Agreement carefully. By purchasing a Custom Ticket Site subscription, Subscriber expressly agrees to be bound by this Agreement and any policies or terms and conditions incorporated herein. Subscriber also agrees that TWL may modify any of the terms of this Agreement and that such modifications will apply to Subscriber’s subscription as of the date those modifications are posted on this website. If you are purchasing a subscription on behalf of a business, you represent that you have authority to bind that business to this Agreement, and that such business agrees to the terms of this Agreement.
This Agreement includes a mandatory arbitration provision. If you do not agree to agree to the mandatory arbitration provision of any of the Terms in this Agreement, do not purchase a subscription.
TWL licenses and markets a computer software application for building, deploying, modifying, maintaining and hosting premier event ticket websites in the cloud (“Custom Ticket Site(s)”) and provides certain services related to same all of which TWL makes available for a fee to Subscriber via an annual subscription service.
1. Grant of License
Subject to the terms and conditions set forth in this Agreement, TWL hereby grants to Subscriber a nonexclusive, royalty-bearing, nontransferable license to use the Software on an Authorized Site and to use the Documentation solely in connection with Subscriber’s use of the Software. “Software” means the computer program or programs marketed and sold as a Custom Ticket Site and any applicable application program interfaces (“APIs”), in object code form only, and any updates, modifications, customizations, bug fixes, upgrades, enhancements, or other modifications made thereto. It does not include any version of the Software that constitutes a separate product because of differences in function or features. “Documentation” means the written or electronic materials which describe the functionality of the Software. Subscriber may use the Software only on the Authorized Site. “Authorized Site” means a single website on which Subscriber is authorized to use the Software. After Subscriber has completed the purchase process through the Ticket Websites website, a TWL representative will confirm the Authorized Site with Subscriber. The license granted hereunder is not transferrable to other websites and may be used solely on the Authorized Site.
Except as specifically granted in this Agreement, TWL owns and retains all right, title, and interest in the Software, Documentation, and all related materials. This Agreement does not transfer ownership rights in the Software, Documentation, or any related materials to Subscriber or any third party. Subscriber shall not modify, reverse engineer, or decompile the Software, or create derivative works based on the Software. Subscriber may not sell, sublicense, sublease or assign or convey the Software or the license granted hereunder to any person or make any commercial use of the Software other than the uses permitted by this Agreement. Subscriber shall not remove copyright, trademark, or other identifying marks or notices on the Software and Documentation (which may include but is not limited to designations for SEATICS ® venue maps and TicketNetwork ® and its related trademarks.)
2. Description of Subscription Services
In addition to the license granted herein TWL shall provide Subscriber with a Custom Ticket Site and certain services related to that Custom Ticket Site which includes hosting the website, connecting the website to the TicketNetwork Exchange (which is a TicketNetwork, Inc. owned and operated proprietary exchange of tickets owned by third party sellers and suppliers,) and providing basic technical support to make minor changes to the website. The Custom Ticket Site will be a website on which Subscriber will have the ability to sell event tickets. TWL shall provide Subscriber with all available modifications, bug fixes, and updates for the Software as part of this support and maintenance obligation. Basic technical support is provided by TWL’s helpdesk and Subscriber must submit a request via email to support@customticketsite.com or using the support request link on the website to receive support.
3. Subscription Term and Automatic Renewal
This Agreement is effective on the date Subscriber completes a subscription purchase. The initial term of this Agreement (the “Initial Term”) shall be one (1) year unless sooner terminated as permitted by this Agreement. After the Initial Term, to ensure uninterrupted service for Subscriber’s Custom Ticket Site this Agreement shall automatically renew for subsequent one (1) year terms (“Renewal Terms”) unless earlier terminated in accordance with the terms of this Agreement or if either party gives the other party thirty (30) days’ written notice of non-renewal prior to the expiration of the Initial Term or the then-current Renewal Term. The Initial Term and any Renewal Terms shall collectively be known as the “Term.”
4.Fees and Taxes
4.1. Fees
In consideration for the subscription granted to Subscriber under this Agreement Subscriber shall pay TWL a fee (an “Annual Fee,”) in the amount specified on the custom ticket sites website at the time of purchase and if applicable, any customization fees for any additional services Subscriber orders. The Annual Fee is due in full when Subscriber purchases a subscription and is nonrefundable except as specified in this Agreement. The Annual Fee for each Renewal Term is due in full upfront annually on or before the annual renewal date and will automatically be billed to the form of payment Subscriber used to sign up for a Custom Ticket Website each year thereafter unless cancelled prior to renewal. The Annual Fee is subject to change on the renewal date, TWL will advise Subscriber of any change in the Annual Fee.
4.2. Taxes
In addition to other amounts payable under this Agreement, Subscriber shall pay any and all federal, state, municipal, or other taxes, duties, fees, or withholding currently or subsequently imposed on Subscriber’s use of the Software or the payment of the Annual Fee to TWL, other than taxes assessed against TWL’s net income. Such taxes, duties, fees, withholding, or other charges shall be paid by Subscriber or Subscriber shall provide the appropriate authority with evidence of exemption from such tax, duty, fee, withholding, or charge. If TWL is required to pay any such tax, duty, fee, or charge, or to withhold any amount from monies due to TWL from Subscriber pursuant to this Agreement, Subscriber shall promptly reimburse TWL any such amounts.
5. Subscriber’s Representations
Subscriber hereby represents and warrants that for the Term Subscriber has all necessary rights, title to, power and authority to enter into this Agreement and to own, operate and use the Custom Ticket Site, including the relevant domain names; and Subscriber holds and has complied with all permits, licenses, and other governmental authorizations necessary for conducting, carrying out and continuing the business and operations occurring on the Custom Ticket Site.
Subscriber represents and warrants that it is not a national or resident of, or located in or under the control of, any country subject to U.S. export controls nor is Subscriber on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.
6. Termination
6.1. Termination Rights
This Agreement may be terminated as follows:
(a) By TWL, if Subscriber fails to pay the amounts due to TWL pursuant to this Agreement.
(b) By TWL, if there is a change in control of Subscriber, whether by sale of assets, stock, or otherwise.
(c) By either party for any material breach of this Agreement that is not cured within ten (10) days of receipt by the party in default of a notice specifying the breach and requiring its cure. In the event of such termination by Subscriber due to TWL’s breach TWL shall provide Subscriber with a pro-rata refund for any prepaid but unused Annual Fee.
(d) By either party, immediately upon written notice, if (i) all or a substantial portion of the assets of the other party are transferred to an assignee for the benefit of creditors, to a receiver, or to a trustee in bankruptcy; (ii) a proceeding is commenced by or against the other party for relief under bankruptcy or similar laws and such proceeding is not dismissed within ten (10) days; or (iii) the other party is adjudged bankrupt;
(e) By TWL for convenience, with thirty (30) days written notice to Subscriber. In the event of such termination TWL shall provide Subscriber with a pro-rata refund for any prepaid but unused Annual Fee; or
(f) By TWL at any time due to legal or regulatory reasons or if TWL decides to discontinue providing subscription contemplated by this Agreement. In the event of such termination TWL shall provide Subscriber with a pro-rata refund for any prepaid but unused Annual Fee.
6.2. Effect of Termination
Upon termination all rights granted to Subscriber under this Agreement cease at the end of the month in which the termination is effective, and Subscriber will cease all use and of the Software and Documentation. This Section 6.2 and Sections 8, 9, 10 and 11 will survive termination or expiration of this Agreement as will any cause of action or claim of either party, whether in law or in equity, arising out of any breach or default.
7. Warranty
ALL PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO THE SOFTWARE, DOCUMENTATION AND CUSTOM TICKET SITE) ARE OFFERED “AS-IS” AND “AS AVAILABLE”. THIS AGREEMENT EXPRESSLY EXCLUDES ALL WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO (a) ANY WARRANTY OF NON-INFRINGEMENT OR ANY WARRANTY THAT THE SOFTWARE OR SERVICES ARE ERROR FREE, WILL OPERATE WITHOUT INTERRUPTION OR AT A CERTAIN SPEED, AVAILABILITY, OR GUARANTEED UPTIME, OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS; (b) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY; AND (c) ANY AND ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE.
IT IS SUBSCRIBER’S SOLE RESPONSIBILITY TO MAINTAIN BACKUP COPIES OF ALL DATA INCLUDING, BUT NOT LIMITED TO, TEXT, HTML, FILES, AND IMAGES UPLOADED TO SERVERS HOSTING THE SOFTWARE. TWL SHALL NOT BE LIABLE OR RESPONSIBLE FOR THE LOSS OF DATA OR THE COST OF RESTORING THE DATA.
8. Limitation of Liability
TWL IS NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING THE LOSS OF PROFITS, REVENUE, DATA, OR USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS INCURRED BY SUBSCRIBER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF TWL OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TWL’S LIABILITY FOR DAMAGES UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY SUBSCRIBER TO TWL UNDER THIS AGREEMENT.
9. Indemnification
9.1. TWL Infringement Indemnification
TWL shall indemnify, defend, and forever hold Subscriber (and its parents, affiliates, subsidiaries or entities under common ownership or control) and all of its respective present and former officers, members, shareholders, directors, employees, representatives, attorneys, insurers and agents, and their successors, heirs and assigns, harmless from and against any third-party claims, actions, or demands alleging that the Software infringes any US patent or copyright of a third party. If use of the Software is permanently enjoined for any reason, TWL, at TWL’s option, and in its sole discretion, may (i) modify the Software so as to avoid infringement; (ii) procure the right for Subscriber to continue to use the Software; or (iii) terminate this Agreement and refund to Subscriber a pro rata portion of paid and unused license fees paid TWL. TWL shall have no obligation under this Section 9.1 for or with respect to claims, actions, or demands alleging infringement that arise as a result of (a) modification of the Software or Documentation by Subscriber or by TWL in compliance with Subscriber’s designs, specifications, or instructions; (b) the direct or contributory infringement of any process patent by Subscriber through the use of the Software; or (c) continued use of the allegedly infringing Software by Subscriber after Subscriber has been notified of possible infringement.
9.2. Subscriber Indemnification
Subscriber shall defend indemnify, defend, and forever hold TWL (and its parents, affiliates, subsidiaries or entities under common ownership or control) and all of its respective present and former officers, members, shareholders, directors, employees, representatives, attorneys, insurers and agents, and their successors, heirs and assigns, harmless from and against any and all losses, liability, or damages arising out of, or incurred in connection with, Subscriber’s use of the Software pursuant to sub-sections 9.1(a)-9.1(c) of this Agreement.
Subscriber further agrees to indemnify, defend and forever hold TWL (and its parents, affiliates, subsidiaries or entities under common ownership or control) and all of its respective present and former officers, members, shareholders, directors, employees, representatives, attorneys, insurers and agents, and their successors, heirs and assigns, harmless from and against any and all third-party losses, liabilities, claims, costs, damages and expenses (including, without limitation, fines, forfeitures, reasonable outside attorneys’ fees, disbursements and administrative or court costs) arising directly or indirectly out of or relating to: (a) a breach by Subscriber of this Agreement or of any representation, warranty, covenant or agreement contained herein; or (b) any content on Subscriber’s Custom Ticket Site, which TWL did not place on the Custom Ticket Site without Subscriber’s request, which results in any claim of trademark or copyright infringement, libel, defamation, breach of confidentiality, false or deceptive advertising or sales practices, deceptive use of URL names, cybersquatting/domain name issues, consumer fraud, injury, damage or harm of any kind to any person or entity. Should any of the above-named claims be brought against TWL, TWL shall (i) promptly notify Subscriber of any matters in respect to which the indemnity may apply and of which TWL has knowledge; (ii) give Subscriber the right to control the defense and all negotiations relative to the settlement of any such claim; and (iii) cooperate with Subscriber, at Subscriber’s cost and expense, in the defense or settlement thereof. TWL shall have the right to take over the defense, and in such case, TWL’s costs shall be borne by TWL.
9.3 Conditions of Indemnification
Should any claim subject to indemnity be made against TWL or Subscriber, the party against whom the claim is made agrees to provide the other party with prompt written notice of the claim. TWL will control the defense and settlement of any claim under Section 9.1 and Subscriber will control the defense and settlement of any claim under Section 9.2. The indemnified party agrees to cooperate with the indemnifying party and provide reasonable assistance in the defense and settlement of such claim. The indemnifying party is not responsible for any costs incurred or compromise made by the indemnified party unless the indemnifying party has given prior written consent to the cost or compromise.
10. Confidentiality
10.1. Confidential Information Definition and Obligations of Confidentiality
Subscriber acknowledges that the Software and Documentation, and all information relating to the business and operations of TWL that Subscriber learns or has learned during or prior to the Term such as all of TWL’s trade secrets, technologies, developments, inventions or improvements, management, operations and marketing information; economic studies and methods; proprietary forms; financial, tax and accounting information; financial results; sales, market share, business plans or initiatives, strategies, policies and procedures; personnel, customer and third-party client records; customer email lists; conversion rates and other program metrics; sales data; names, addresses, contact persons, purchasing histories and prices, credit standing: current, past, potential or prospective prices, costs, profits, markets, products, and innovations; internal practices and procedures; the terms and provisions of this Agreement and of all documents executed by the parties or provided by TWL to Subscriber pursuant to this Agreement is the confidential, or proprietary information of the TWL (“Confidential Information”). Subscriber will (a) safeguard the Confidential Information with the same degree of care that it uses to protect its own confidential information; (b) maintain the confidentiality of this information; (c) not use the information except as permitted under this Agreement; and (d) not disseminate, disclose, sell, publish, or otherwise make available the information to any third party without the prior written consent of TWL.
10.2. Limitations on Obligation of Confidentiality
Section 10.1 does not apply to any information that (a) is or becomes generally available to the public through no fault of Subscriber; (b) is disclosed to Subscriber by a third party who is authorized to transfer or disclose such information without restriction; or (c) is independently developed by Subscriber without any use of confidential information. If Subscriber believes any disclosure of the Confidential Information is required by law or judicial order issued by a court or agency of competent jurisdiction, Subscriber shall give TWL prior written notice in order to afford it the opportunity to seek a protective order or other legal remedy to prevent such disclosure at TWL’s own expense, If Subscriber is ultimately required to disclose TWL’s Confidential Information Subscriber shall consult with TWL to redact portions of the Confidential Information to the fullest extent permitted under any applicable laws, rules and regulations, submit a request that such portions of the Confidential Information receive confidential treatment or otherwise be held in the strictest confidence under applicable laws, rules and regulations and not oppose any motion or action by TWL to intervene or otherwise act to protect the confidential status and treatment of the Confidential Information. In the event the disclosure of TWL’s Confidential Information is required to prevent Subscriber from being held in contempt or subject to any other penalty, Subscriber may disclose the Confidential Information without prior notice to TWL, but Subscriber shall disclose only the portion of the Confidential Information which, in the written opinion of counsel, Subscriber is legally compelled to disclose.
10.3. Injunctive Relief
Subscriber acknowledges that any breach of Section 10.1 will irreparably harm TWL. Accordingly, in the event of a breach, TWL is entitled to promptly seek injunctive relief in addition to any other remedies that TWL may have at law or in equity.
11. Miscellaneous
11.1. Assignment
Subscriber may not assign, sublicense, or transfer Subscriber’s rights or delegate its obligations under this Agreement without TWL’s prior written consent, which will not be unreasonably withheld. TWL may assign this Agreement in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets. Any attempt by a party to affect an assignment in breach of this Section shall be void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.2. Entire Agreement This Agreement constitutes the final and complete understanding between the parties and replaces and supersedes all previous oral or written Licenses, understandings, or arrangements between the parties with respect to the subject matter contained in this Agreement.
11.3. Modifications and Waiver
This Agreement may be modified by TWL at any time by providing Subscriber with notice of such modification. TWL will provide Subscriber with notice of such modification by posting the revised version on this Agreement on this website, by communicating it to Subscriber through a subscriber portal, or by providing Subscriber with email notice of such modification. The modified agreement will be effective as of the date it is posted which date will be indicated at the bottom of the Agreement as “Last Updated”. Continued use of the Software and Documentation by Subscriber after receipt of such notification shall constitute acceptance of the modification or amendment. The failure of either party to enforce any provision of this Agreement shall not be deemed a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision.
11.4. Notices
Except as otherwise provided in this Agreement, notices required to be given pursuant to this Agreement shall be effective when received, and shall be sufficient if given as follows:
To TWL: In writing sent by overnight courier service with signature required as proof of delivery and addressed as follows:
TicketWebsites, LLC
1621 Central Avenue
Cheyenne, WY
82001
Attn: Legal Department
To Subscriber: In writing sent to Subscriber’s email account. Subscriber shall promptly inform TWL of any mailing address or email address changes and ensure that TWL has Subscriber’s current address and email address.
11.5. Independent Contractor
Nothing in this Agreement shall be deemed to create an employer/employee, principal/agent, or joint venture relationship. Neither party shall have the authority to enter into any contracts on behalf of the other party.
11.6. Governing Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware. The sole location and venue for any litigation or arbitration which may arise hereunder shall be an appropriate federal or state court located in the County of Kent, Delaware.
11.7. Severability
In case any provision of this Agreement is held to be invalid, unenforceable, or illegal, the provision will be severed from this Agreement, and such invalidity, unenforceability, or illegality will not affect any other provisions of this Agreement.
11.8. Arbitration
Except for claims arising out of a breach of Section 1 or Section 4.3, the parties consent to the following dispute resolution process: the parties will first make a good faith attempt to resolve the dispute through negotiations between a director, officer or other designated representative of each party with the authority to settle the dispute. If the dispute cannot be settled by such negotiations within fourteen (14) days from the date on which the allegedly aggrieved party notified the other party of the dispute, the allegedly aggrieved party shall submit the dispute for binding arbitration in the County of Kent Delaware. Binding arbitration shall be administered in accordance with the mediation and arbitration rules of the American Arbitration Association (“AAA”). The parties shall both participate in the selection of the sole arbitrator; provided, however, that if the parties are unable to agree upon an arbitrator within fifteen (15) days after either party has notified the other of an unreconciled dispute then the arbitrator will be appointed by the AAA. Any award issued through the arbitration is enforceable in any court of competent jurisdiction.
Provided this Agreement has neither expired nor been terminated while a dispute is pending resolution, performance of this Agreement shall continue. No payment due or payable shall be withheld due to any pending dispute resolution except to the extent that such payment is the subject of such pending dispute.
11.9. Attorney Fees
In the event of any dispute between the parties arising out of this Agreement the prevailing party shall be entitled, in addition to any other rights and remedies it may have, to recover its reasonable attorney fees and costs.
11.10 Force Majeure
Any delay or failure in the performance by either party hereunder shall be excused if and to the extent caused by the occurrence of Force Majeure. For purposes of this Agreement, “Force Majeure” shall mean a cause or event that is not reasonably foreseeable or otherwise caused by or under the control of the party claiming Force Majeure, including acts of God, fires, floods, explosions, riots, wars, hurricane, sabotage terrorism, vandalism, accident, restraint of government, governmental acts (including but not limited to state and federal executive orders,) injunctions, epidemic, pandemic (for avoidance of doubt the government recommendations and prohibitions that arose due to the Covid 19 pandemic of 2020 or similar would qualify as a Force Majeure), labor strikes, delays or interruptions to services provided by cloud, platform, or other software as a service providers (including but, not limited to Amazon Webservices) which may impact the services provided by TWL, and other like events that are beyond the reasonable anticipation and control of the party affected thereby, despite such party’s reasonable efforts to prevent, avoid, delay, or mitigate the effect of such acts, events or occurrences, and which events or the effects thereof are not attributable to a party’s failure to perform its obligations under this Agreement.
11.11 Privacy
By accessing the TWL website or purchasing a Custom Ticket Site subscription, you acknowledge TWL’s privacy policy (the “Privacy Policy”) applies to you. The Privacy Policy explains how TWL collects, uses, and protects the personal information you provide to us to provide you with a subscription or while using TWL’s website. You can read the Privacy Policy at https://customticketsite.com/privacy we can also provide you a copy upon request.