1. Description of the Service
The Service consists of a web based platform through which User can access tools and services to assist in the operation of a ticket resale business.
2. Service Fees
User shall pay Company a fee for the Service (“Service Fee”) which will be calculated in accordance with Schedule A.
3. Use of Service
(a) User expressly acknowledges and agrees to be bound by and will abide by any terms and conditions Company may adopt for users of its Site including those set forth in these Terms. Company reserves the right, in its sole and absolute discretion, to change these Terms at any time. User’s continued use of the Service following notice of the revised Terms shall constitute User’s acceptance of the new term and revised Terms.
(b) The Service shall only be accessed by authorized employees of User that have been provided user identification credentials by Company to access the Service (“Authorized User”). User agrees to maintain all identification credentials including user names and passwords, in a confidential manner. If there is a breach of security in or through User’s account, User must immediately change the password and notify Company. User is solely responsible for all activity by its employees, agents, contractors and representatives. User shall not permit any individual that is not an Authorized User to access or use the Service. Nor shall an Authorized User be permitted to transfer or assign use of the site or any use of the Service to any other individual who is not an Authorized User. User shall implement all security measures necessary to ensure that the Service is not accessed or used by any individual that is not an Authorized User. User is solely and exclusively responsible for the actions of its Authorized User and any third party that gains access to the Service as a result of the action of User and User’s failure to protect identification information. User shall immediately notify Company if the User believes its identification information is being used by an authorized party.
(c) Company reserves the right to refuse use of the Service to User at any time, in its sole and absolute discretion. Company reserves the right to discontinue, temporarily or permanently, use of the Service or any portion thereof to User at any time, with or without notice. Company shall not be liable to User or any third party for any interruption in or termination of User access to, and use of, the Service.
4. Representations and Warranties
(a) User represents and warrants that it will not use the Service for unlawful purposes or in an unlawful manner and that it will comply with all applicable laws, statutes, ordnances and regulations related to the use of the Service and the listing, buying and selling of tickets. User further represents and warrants that it will provide Company only true, accurate, current and complete information and will update that information and to keep it true, accurate, current and complete.
(b) User represents and warrants that in its dealings with Company, User will not: (i) provide any false, inaccurate, misleading or defamatory information; (ii) participate, to the best of User’s knowledge and information, in the sale of counterfeit or stolen items; (iii) violate any law, ordinance or regulation; (iv) infringe a trademark, copyright, privacy right or other right; (v) utilize or transmit any virus or program that intended to damage, interfere with, intercept or expropriate and system, data or information; (vi) interfere with the Service or damage Company; (vii) collect or store any information about any other Authorized User or purchaser other than in the course of the permitted use of the Service; (viii) modify, intercept, interfere, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile, damage or otherwise disassemble any portion of the Service or any software used therein or for the Service provided by Company; or (ix) assist any third party in doing any of the foregoing.
5. Intellectual Property
(a) The Service, including all software, databases, trademarks, logos, service marks, proprietary information and materials, and any intellectual property or other rights relating thereto (“Company’s Property”) is owned by Company and will remain the property of Company.
(b) User acknowledges that it does not acquire any ownership rights by using the Service. All applicable rights to patents, copyrights, trademarks, trade secrets and any other rights in the Service and Company’s Property, and any and all modification thereto, are and shall remain in the Company. Nothing contained in these Terms shall be construed as granting, by implication, estoppel or otherwise, any license or right to use Company’s Property within the express written permission of Company.
(c) Under these Terms, Company grants to User a non-exclusive and non-transferable license to use Company’s Property solely for purposes consistent with these Terms.
(d) User shall not at any time do or cause to be done any act or omission impairing or intending to impair any part of Company’s rights, title and interest to Company’s Property. User may not use Company’s Property in connection with any product or service that is not offered by Company, in any manner that is likely to cause confusion with customers or in any manner that disparages Company. User may not modify, reverse-engineer or decompile Company’s Property in any manner.
6. Limitation of Liability
NEITHER COMPANY, NOR ITS PARENTS, AFFILIATES, EMPLOYEES, CONSULTANTS, AGENTS AND OTHER REPRESENTATIVES (“COMPANY PARTIES”) ARE OR WILL BE RESPONSIBLE OR LIABLE TO USER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES INCLUDING WITHOUT LIMITATION FOR: (I) ANY LOSS OF BUSINESS, PROFITS, OR GOODWILL, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, DELAYS, OR OUTAGES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER (HOWEVER ARISING, INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THE SERVICE EVEN IF COMPANY IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES; (II) ANY DAMAGES THAT RESULT IN ANY WAY FROM USER’S USE OR INABILITY TO USE THE SERVICE; OR (III) THAT RESULT FROM ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION, OR TRANSMISSION, OR ANY OTHER FAILURE OF PERFORMANCE OF THE SERVICE. USER’S SOLE AND EXCLUSIVE REMEDY, AND COMPANY’S ENTIRE LIABILITY HEREUNDER, AT COMPANY’S SOLE OPTION, SHALL BE THE REPAIR OR REPLACEMENT OF THE SERVICE OR RETURN OF SERVICE FEES THAT WERE EARNED IN THE THIRTY (30) DAYS PRIOR TO THE FAILURE OF PERFORMANCE OF THE SERVICE.
COMPANY PROVIDES THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND, EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, COMPANY DISCLAIMS ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COMPANY WILL NOT BE LIABLE DUE TO DELAYS, INTERRUPTIONS OR OUTAGES. COMPANY MAKES NO REPRESENTATION OR WARRANTY THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR THAT THE SERVICE WILL ALWAYS BE SAFE, SECURE OR ERROR-FREE. NO ADVICE OR INFORMATION FROM COMPANY, WHETHER ORAL OR WRITTEN, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
User shall indemnify, defend, and hold harmless Company and the Company Parties from and against all losses, damages, and expenses, including reasonable attorneys’ fees and costs, resulting from any claim, action, or proceeding arising from, resulting from, or relating to: (i) a breach of the representations and warranties made by User in these Terms or the terms of these Terms; (ii) any alleged infringement of a third party’s intellectual property rights by content submitted by User hereunder; or (iii) User’s use of the Service in a manner not permitted under the terms of these Terms.
9.Term and Termination
(a) Company may terminate the Service at any time, with or without cause, upon seven (7) days written notice to User. User may terminate the Service, at any time, with or without cause, upon thirty (30) days written notice to Company. Upon termination, User and all Authorized Users shall cease to have access to the Service.
(b) Notwithstanding Section 9(a), in Company’s sole discretion, it may immediately issue a warning, temporarily suspend, or terminate User’s access to and use of the Service. This Section 9(b) does not limit any other remedies that may be available to Company.
If Company believes in its sole discretion that User may have violated these Terms or applicable law, User shall be subject to investigation by Company. User agrees to cooperate fully in such investigation including, but not limited to, providing any and all information demanded by Company. Company reserves the right to take any action without prior notice it deems appropriate in its sole and absolute discretion including, but not limited to, issuing a warning, suspending or terminating service, denying access or exercising any other remedy available to it.
(a) Each of the representations and warranties of the Parties shall survive any termination or expiration of the Service.
(b) Company is not responsible or liable for any products or services, including shipping or tracking, offered by partners or third parties, including third-party marketplaces and auction sites. Company is not responsible for the content of any third-party websites.
(c) Except as explicitly stated otherwise, any notices will be given by the email address that each Party has provided to the other or such other address as each Party may specify in writing. Notice will be deemed given twenty four (24) hours after an email is sent, unless the sending Party is notified that the email address is invalid. Alternatively, notice may be sent by certified mail, postage prepaid, and return receipt requested, to the address provided by the Party. In such case, notice will be deemed given three (3) days after the date of mailing.
(d) Any controversy or claim in any way arising/out of or relating to the Service or these Terms will be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The arbitration will he conducted in the Commonwealth of Massachusetts, or any other competent jurisdiction specified by Company. Either User or Company may seek any interim or preliminary relief from a court of competent jurisdiction in the state and federal courts in Massachusetts necessary to protect the rights or property of User of Company pending the completion of arbitration. User agrees that violations of these Terms causes damage and harm to Company in the form of, among other things, impaired goodwill of its violations.
(e) Massachusetts Law will govern these Terms, without reference to the principles of conflict of laws.
(f) A Party’s failure to enforce any provision or part of provision of these Terms shall not be a waiver of the provision or the right to enforce it at a later time.
(g) These Terms set forth the entire understanding and agreement between the Parties with respect to the subject matter hereof. Each Party agrees that it is not agreeing to these Terms in reliance on any statements or representations other than those set forth herein.
(h) These Terms and User’s names and passwords are not assignable, transferable or sublicensable without Company’s prior written consent, and any such conveyance without Company’s consent will be null and void. Company shall have the right to assign or transfer its rights and obligations under these Terms for any reason without the consent of User.
(i) Company shall be entitled to recover from User its costs, including reasonable attorneys’ fees, in any action it brings to enforce the terms of these Terms and in any action brought by User against Company in which Company prevails, in part or in whole.
(j) These Terms shall be deemed drafted equally by both of the Parties. Its language shall be construed as a whole and according to its fair meaning. Any presumption or principle that the language is to be construed against either party shall not apply. The headings in these Terms are only for convenience and are not intended to affect construction or interpretation. Any references to paragraphs, subparagraphs, sections or subsections are to those parts of these Terms, unless the context clearly indicates to the contrary. Also, unless the context clearly indicates to the contrary: (a) the plural includes the singular and the singular includes the plural; (b) “and” and “or” are each used both conjunctively and disjunctively; (c) “any,” “all,” “each,” or “every” means “any and all,” and “each and every”; (d) “herein,” “hereof,” “hereunder” and other similar compounds of the word “here” refer to the entire Agreement and not to any particular paragraph, subparagraph, section or subsection; and (e) all pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the entities or persons referred to may require. “Service” as used herein shall include User’s use of the site.
(k) If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms 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 hereto shall negotiate in good faith to modify these Terms so as to effect the original intent of the Parties 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.