Master Service Agreement
1. Interpretation
The definitions and rules of interpretation in this clause apply in the Contract.
Base Ticket Price: the Ticket price payable by an End User in relation to any Transactions (exclusive of VAT or any other applicable sales taxes in any territory and not including the restoration levy or any outside customer booking fee).
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commencement Date: has the meaning given to it in the Order Form.
Commission: the commission payable by Customer to TickX in respect of each Transaction, as set out in the Order Form.
Contract: the contract between the Supplier and the Customer for the delivery of Producer360 in accordance with these terms and conditions.
Customer: the party identified as the Customer on the Order Form.
Data Protection Legislation: the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacy.
End User: a user who accesses the Show Website to identify Tickets.
Materials: all documents, images, content, information, items and materials in any form, whether owned by Customer or a third party, which are provided by Customer to TickX in connection with the embedding of Producer360 on the Show Website.
Order Form: the Customer 's order for Producer360, to which these terms and conditions are attached.
Producer360: has the meaning given to it on the Order Form.
Producer360 Display Requirements: TickX’s system requirements for the display of Producer360 on the Show Website, as set out in Schedule 2 or as otherwise agreed between the parties in writing.
Service Fee: the fee payable by Customer to TickX in respect of the Customer’s access to Producer360, as set out in the Order Form.
Shows: the Shows set out on the Order Form, which may be added to the Contract by express mutual written agreement of both parties.
Show Brand: the name, logos, tag lines and trade marks that are owned or licensed by Customer which relate to the Shows, including the marks and logos set out in the Order Form.
Show Website: the websites for the Shows that Customer controls from time to time (the websites currently being set out on the Order Form. The Show Website includes all future versions and replacements of, and successors to the Show Website.
Ticketing Provider: the ticketing provider appointed by Customer to sell the Tickets on Customer’s behalf.
Tickets: tickets for any performance of the Shows.
TickX: TickX Limited, a company incorporated and registered in England and Wales with company number 09614775 whose registered office is at Fifth Floor, 11 Leadenhall Street, London, United Kingdom, EC3V 1LP.
TickX Brand: the name, logos, tag lines and trade marks that are owned or licensed by TickX from time to time.
Transaction: a purchase of any Tickets from the Ticketing Provider by an End User who has used Producer360 on the Show Website.
UK Data Protection Legislation: any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or 2018 or any successor legislation.1.1 Clause, Schedule and paragraph headings shall not affect the interpretation of the Contract.
1.2 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.3 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.4 A reference to writing or written includes email.
1.5 References to clauses and Schedules are to the clauses and Schedules of the Contract and references to paragraphs are to paragraphs of the relevant Schedule.
1.6 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Basis of Contract
2.1 The Order constitutes an offer by the Customer to licence Producer360 in accordance with these terms and conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.2 The Order shall only be deemed to be accepted when the Order is signed by all parties, at which point the Contract shall come into existence.
3. Customer’s obligations
3.1 Customer shall use its reasonable endeavours to ensure that Producer360 is displayed on the Show Website in accordance with Producer360 Display Requirements throughout the term of the Contract.
3.2 Customer shall ensure that End-Users seeking to purchase Tickets are directed to do so through Producer360.
3.3 Customer shall be (as between the parties) responsible for operating and maintaining the Show Website, and will use reasonable endeavours to ensure that the Show Website is always available and uninterrupted, but does not warrant that the Show Website will always be available or uninterrupted.
3.4 Customer shall provide TickX with:
(a) all reasonable co-operation and assistance; and
(b) all access to such documents, information, data and materials to deliver the Producer360 integration,as TickX reasonably requests in writing from Customer in order for TickX to embed Producer360 on the Show Website.
3.5 Customer shall have no authority, and shall not hold itself out, or permit any person to hold itself out, as being authorised to bind TickX in any way, and shall not do any act which might reasonably create the impression that Customer is so authorised.
3.6 Customer warrants that it holds all licences and permissions necessary, and is legally entitled, to:(a) enter into, and perform its obligations under, the Contract;(b) allow Producer360 to be embedded on the Show Website; and(c) allow Producer360 to link in to the Ticketing Provider’s ticketing system for the purpose of facilitating the sale of Tickets by the Ticketing Provider through Producer360.
3.7 Customer shall comply with all applicable laws and regulations with respect to the embedding of Producer360 on the Show Website.
3.8 Customer may not, unless permitted by the Contract or required by law, copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to Producer360.
3.9 Customer shall indemnify TickX against all liabilities, costs, expenses, damages and losses and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by TickX arising out of or in connection with any breach by Customer of clause 3.6.
4. TickX's obligations
4.1 TickX shall create Producer360 and shall provide Customer with an embeddable code in order to allow Customer to embed Producer360 on the Show Website so that End Users can use Producer360 on the Show Website to identify Tickets.
4.2 In consideration for the payment of the sum of £1 by Customer to TickX, receipt of which TickX hereby acknowledges, TickX grants to Customer a non-exclusive licence to embed Producer360 on the Show Website and to allow End Users to use Producer360 on the Show Website to identify Tickets for the duration, and in accordance with the terms, of the Contract.
4.3 TickX shall have no authority, and shall not hold itself out, or permit any person to hold itself out, as being authorised to bind Customer in any way, and shall not do any act which might reasonably create the impression that TickX is so authorised.
4.4 TickX shall develop, operate and maintain Producer360, and will use its reasonable endeavours to ensure that access to Producer360 on the Show Website is uninterrupted but does not warrant that Producer360 will always be available or uninterrupted.
4.5 TickX shall comply with all applicable laws and regulations with respect to its activities under the Contract.4.6 TickX warrants that it holds all licences and permissions necessary, and is legally entitled, to:
(a) enter into, and perform its obligations under, the Contract; and
(b) licence Producer360 to Customer in accordance with the terms of the Contract.
5. Charges and payment
5.1 All Transactions shall be entered into directly between the Ticketing Provider and the End Users.
5.2 Customer will pay to TickX:
(a) the Commission; and
(b) the Service Fee (if applicable),both of which shall be exclusive of VAT.
5.3 By the 5th of each month, TickX will provide Customer with a report setting out for the previous month:
(a) total number of Tickets sold when an End User has bought from the Ticketing Provider using Producer360;
(b) the total Base Ticket Price relating to such Tickets; and
(c) total Commission payable to TickX for all Transactions processed by the Ticketing Provider for all End Users who have bought from the Show Website using the Producer360 platform.
5.4 TickX shall raise an invoice for the Commission payable as set out in the report in clause 5.3.
5.5 Customer shall within 15 days of the receipt of each invoice pay the Commission to TickX.
5.6 The Customer shall pay the Service Fee in accordance with the Order Form.5.7 Without prejudice to any other right or remedy that it may have, if Customer fails to pay to TickX any sum due under the Contract on the due date Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause
5.7 will accrue each day at 4% a year above the Bank of England's base rate from time to time.
5.8 For the avoidance of doubt, Commission payable to TickX is only due on Tickets purchased directly from the Show Website using the Producer360 platform and not for sales made by other 3rd party ticket agents.
6. Intellectual Property Rights
6.1 Customer warrants that:
(a) it is the owner or licensee of all intellectual property rights subsisting in any Materials and the Show Brand;
(b) it has all rights, licences and permissions necessary in order for it to grant a licence to TickX to use the Materials and to use the Show Brand;
(c) the use by TickX of the Materials or the Show Brand on Producer360 will not in fringe the intellectual property rights of any third party, provided that such use by TickX is in accordance with any reasonable instructions provided by Customer to TickX from time to time.
6.2 TickX warrants and represents that:
(a) it is the owner or licensee of any and all intellectual property rights subsisting in Producer360 and the TickX Brand;
(b) it has all rights, licences and permissions necessary in order for it to grant the licences to Customer under the Contract;
(c) the embedding of Producer360 on the Show Website and the use by End-Users of Producer360 on the Show Website will not infringe the intellectual property rights of any third party;
(d) Producer360 is free from viruses and any other malicious code; and
(e) any updates to Producer360 will not materially adversely impact the performance of Producer360 on the Show Website.
6.3 Customer hereby grants TickX a non-exclusive licence to use the Materials and the Show Brand on Producer360 on the Show Website for the duration of the Contract, provided that such use is in accordance with the reasonable written guidelines and/or instructions provided by Customer to TickX and is prior approved in writing by Customer.
6.4 TickX hereby grants a non-exclusive licence to Customer to use any and all of the TickX Brand on the Show Website for the purpose of embedding Producer360 on the Show Website and directing End Users to Producer360, provided that such use is in accordance with the reasonable written guidelines and/or instructions provided by TickX to Customer.
6.5 TickX shall not sub-license, transfer or otherwise deal with the rights of use of the Materials and ShowBrand granted under the Contract.
6.6 TickX acknowledges that the goodwill and all intellectual property rights in and associated with Show Brand, Show Website and Materials shall at all times remain the exclusive property of Customer. If any rights in the Show Brand, Show Website and Materials accrue to TickX by operation of law or otherwise, TickX shall at its own expense immediately on demand do all acts and things and execute all documents as Customer shall deem necessary to vest the rights absolutely in Customer.
6.7 Each party shall promptly give notice in writing to the other if it becomes aware of:
(a) any infringement or suspected infringement of the Show Website, Materials or the Show Brand; or
(b) any claim that the Show Website, Materials or the Show Brand infringes the rights of any third party, provided that Customer shall only be obligated to do so to the extent that in Customer’s reasonable opinion such infringement or claim may have a material impact on TickX.
6.8 Customer shall have the conduct of all proceedings including the defence to any claim relating to the Show Website, Show Brand or the Materials and shall in its sole discretion decide what action (including litigation, arbitration or compromise), if any, to take in respect of any infringement or alleged infringement of the Show Website, Show Brand or the Materials or passing off or any other claim or counterclaim brought or threatened in respect of the use of the Show Website, Show Brand or the Materials.
6.9 Customer shall indemnify TickX against all liabilities, costs, expenses, damages and losses and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by TickX arising out of or in connection with any claim or proceedings brought against TickX by a third party that TickX’s use of the Materials or the Show Brand on Producer360 in accordance with terms of the Contract infringes the intellectual property rights of such third party, and for any use by Customer of Producer360 other than in accordance with the terms of the Contract.
6.10 TickX shall indemnify Customer against all liabilities, costs, expenses, damages and losses and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by Customer arising out of or in connection with any claim or proceedings brought by a third party that TickX’s embedding of Producer360 on the Show Website and the End-Users use of Producer360 infringes the intellectual property rights of any third party.
7. Confidentiality
7.1 Each party (Receiving Party)undertakes that it shall not at any time during the Contract, and for a period of three years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party (Disclosing Party) or of any member of the group of companies to which the Disclosing Party belongs (Confidential Information), except as permitted by clause 7.2.
7.2 The Receiving Party may disclose the Confidential Information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the Receiving Party’s rights or carrying out its obligations under or in connection with the Contract. The Receiving Party shall ensure that its employees, officers, representatives or advisers to whom it discloses the Disclosing Party Confidential Information comply with this clause 7; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
7.3 Subject to clause 7.2, the Receiving Party shall not use the Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
7.4 The Receiving Party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.7.5 This clause 7 shall survive termination of the Contract, however arising.
8. Limitation of liability
8.1 This clause 8 sets out the entire financial liability of each party (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the other party arising under or in connection with the Contract.
8.2 Except as expressly and specifically provided in the Contract, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract.
8.3 Nothing in the Contract excludes the liability of either party:
(a) for death or personal injury caused by its negligence; or
(b) for fraud or fraudulent misrepresentation.
8.4 Subject to clause 8.3:
(a) Neither party shall be liable whether in tort (including for negligence or breach of statutory duty), contract, restitution or otherwise for any loss of profits, loss of sales, loss of business, and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under the Contract; and
(b) TickX’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the greater of £5,000 or the amount paid to TickX by Customer during the 12 months preceding the date on which the claim arose.
9. Duration and termination
9.1 Subject to earlier termination in accordance with this clause 9, the Contract shall commence on the date of the Contract and shall continue in accordance with the Duration section of the Order Form.
9.2 Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
9.3 Without affecting any other right or remedy available to it, TickX may terminate the Contract or suspend performance of any or all of its obligations under the Contract with immediate effect by giving written notice to Customer if:
(a) Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 30 days after being notified to make such payment;
(b) Customer fails to comply with Producer360 Display Requirements;
(c) Customer breaches clauses 3.4 or 3.6; or
(d) TickX is unable to integrate Producer360 with the Ticketing Provider, the Customer, the Shows venue, or any other third party’s ticketing system for the purpose of facilitating the sale of Tickets by the Ticketing Provider through Producer360.
10. Consequences of termination
10.1 On expiry or termination of the Contract for any reason:
(a) all licences and benefits granted under the Contract shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them)belonging to the other party (including the Confidential Information);
(c) Customer shall within 30 days of expiry or termination pay to TickX all of TickX’s outstanding unpaid and undisputed invoices that are due and payable, and all Commission which relates to Transactions completed prior to such termination;
(d) any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect;
(e) termination or expiry of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
11. Data Protection
11.1 In this clause 11, the following terms shall have the following meaning and shall be construed accordingly:
(a) Applicable Laws means (for so long as and to the extent that they apply to the parties) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law;
(b) Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK;
(c) End-User Personal Data means any Personal Data Processed by TickX on behalf of CUSTOMER pursuant to or in connection with the Contract;
(d) Sub-Processor means any person (including any third party, but excluding an employee of TickX or any employee of its sub-contractors) appointed by or on behalf of TickX to Process End-User Personal Data.
11.2 The terms, "Data Controller", "Data Processor", "Data Protection Impact Assessments", "Data Subject", "Personal Data", "Processing" shall have the same meaning as in the Data Protection Legislation, and their cognate terms shall be construed accordingly.
11.3 The parties acknowledge that for the purposes of the Data Protection Legislation, Customer is the Data Controller and TickX is the Data Processor) of any End-User Personal Data Processed by TickX on behalf of Customer.
11.4 Without prejudice to the generality of clause 11.1, TickX shall, in relation to any End-User Personal Data Processed by TickX:
(a) process that End-User Personal Data only on the written instructions of Customer unless TickX is required by Applicable Laws to otherwise process that End-User Personal Data, in which case TickX shall, to the extent permitted by any Applicable Laws, inform Customer of that legal requirement before the relevant Processing of that End-User Personal Data;
(b) ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of End-User Personal Data and against accidental loss or destruction of, or damage to, End-User Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
(c) regularly assess and evaluate the effectiveness of the technical and organisational measures guaranteed above and report to Customer at least once per calendar year and at any time on Customer’s reasonable request, the results of its assessments and evaluations and any actions taken or planned to address any potential deficiencies
(d) ensure that all personnel who have access to and/or process End-User Personal Data are obliged to keep the End-User Personal Data confidential; and
(e) the Customer consents to TickX transferring End-User Personal Data outside of the United Kingdom/European Economic Area to its Sub-Processor in Brazil, provided the following conditions are fulfilled:
(i) Customer or TickX has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) TickX complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any End-User Personal Data that is transferred; and
(iv) TickX complies with reasonable instructions notified to it in advance by Customer with respect to the processing of the End-User Personal Data;
(f) assist Customer, at Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security of Processing, breach notifications, Data Protection Impact Assessments and consultations with supervisory authorities or regulators;
(g) notify Customer without undue delay on becoming aware of a End-User Personal Data breach;
(h) at the written direction of Customer, delete or return End-User Personal Data and copies thereof to Customer on termination of the Contract, unless required by Applicable Laws to which TickX is subject to to store the End-User Personal Data; and
(i) maintain and make available to Customer on request all information necessary to demonstrate compliance with this clause 11, and shall allow for and contribute to reasonable audits and access, including inspections, by Customer or an auditor mandated by Customer in relation to the Processing of the End-User Personal Data by TickX as required by Article 28(3)(h) of the General Data Protection Regulation ((EU) 2016/679).11.5 Customer consents to TickX appointing Sub-Processors under the Contract for the purposes of TickX carrying out its obligations under the Contract.
11.6 With respect to each Subprocessor appointed by TickX, TickX shall:
(a) ensure that the arrangement between TickX and the Subprocessor is governed by a written contract including terms which offer at least the same level of protection for End User Personal Data as those set out in this clause and meet the requirements of Article 28(3) of the General Data Protection Regulation ((EU) 2016/679);and
(b) be fully liable to Customer for the acts and omissions of such Subprocessors in relation to any Processing of End User Personal Data Processed on behalf of TickX.
11.7 Where TickX proposes any changes concerning the addition or replacement of any Subprocessor, it shall notify Customer in writing as soon as reasonably practicable prior to implementing such change specifying:
(a) the name of any Subprocessor which it proposes to add or replace;
(b) the Processing activity or activities affected by the proposed change;
(c) the reasons for the proposed change; and
(d) the proposed date for implementation of the change.
12. General
2.1 Force Majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (including, in the case of Customer, that any performance or performances of the Shows are cancelled for any reason, the Ticketing Provider’s functionality and/or the Show Website are unavailable for a period of more than two consecutive weeks). In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for three months, the party not affected may terminate the Contract by giving 30 days' written notice to the affected party
.12.2 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
12.4 Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
12.5 Assignment and other dealings. Neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the other party.
12.6 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
12.7 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.8 Third party rights. A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
12.9 Notices.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the address specified in the Order Form.
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am GMT on the second Business Day after posting or at the time recorded by the delivery service; or
(iii) if sent by email, at 9.00 am GMT on the next Business Day after transmission.
12.10 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England.
12.11 Jurisdiction. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
The definitions and rules of interpretation in this clause apply in the Contract.
Base Ticket Price: the Ticket price payable by an End User in relation to any Transactions (exclusive of VAT or any other applicable sales taxes in any territory and not including the restoration levy or any outside customer booking fee).
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commencement Date: has the meaning given to it in the Order Form.
Commission: the commission payable by Customer to TickX in respect of each Transaction, as set out in the Order Form.
Contract: the contract between the Supplier and the Customer for the delivery of Producer360 in accordance with these terms and conditions.
Customer: the party identified as the Customer on the Order Form.
Data Protection Legislation: the UK Data Protection Legislation and (for so long as and to the extent that the law of the European Union has legal effect in the UK) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to privacy.
End User: a user who accesses the Show Website to identify Tickets.
Materials: all documents, images, content, information, items and materials in any form, whether owned by Customer or a third party, which are provided by Customer to TickX in connection with the embedding of Producer360 on the Show Website.
Order Form: the Customer 's order for Producer360, to which these terms and conditions are attached.
Producer360: has the meaning given to it on the Order Form.
Producer360 Display Requirements: TickX’s system requirements for the display of Producer360 on the Show Website, as set out in Schedule 2 or as otherwise agreed between the parties in writing.
Service Fee: the fee payable by Customer to TickX in respect of the Customer’s access to Producer360, as set out in the Order Form.
Shows: the Shows set out on the Order Form, which may be added to the Contract by express mutual written agreement of both parties.
Show Brand: the name, logos, tag lines and trade marks that are owned or licensed by Customer which relate to the Shows, including the marks and logos set out in the Order Form.
Show Website: the websites for the Shows that Customer controls from time to time (the websites currently being set out on the Order Form. The Show Website includes all future versions and replacements of, and successors to the Show Website.
Ticketing Provider: the ticketing provider appointed by Customer to sell the Tickets on Customer’s behalf.
Tickets: tickets for any performance of the Shows.
TickX: TickX Limited, a company incorporated and registered in England and Wales with company number 09614775 whose registered office is at Fifth Floor, 11 Leadenhall Street, London, United Kingdom, EC3V 1LP.
TickX Brand: the name, logos, tag lines and trade marks that are owned or licensed by TickX from time to time.
Transaction: a purchase of any Tickets from the Ticketing Provider by an End User who has used Producer360 on the Show Website.
UK Data Protection Legislation: any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or 2018 or any successor legislation.1.1 Clause, Schedule and paragraph headings shall not affect the interpretation of the Contract.
1.2 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.3 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.4 A reference to writing or written includes email.
1.5 References to clauses and Schedules are to the clauses and Schedules of the Contract and references to paragraphs are to paragraphs of the relevant Schedule.
1.6 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Basis of Contract
2.1 The Order constitutes an offer by the Customer to licence Producer360 in accordance with these terms and conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.2 The Order shall only be deemed to be accepted when the Order is signed by all parties, at which point the Contract shall come into existence.
3. Customer’s obligations
3.1 Customer shall use its reasonable endeavours to ensure that Producer360 is displayed on the Show Website in accordance with Producer360 Display Requirements throughout the term of the Contract.
3.2 Customer shall ensure that End-Users seeking to purchase Tickets are directed to do so through Producer360.
3.3 Customer shall be (as between the parties) responsible for operating and maintaining the Show Website, and will use reasonable endeavours to ensure that the Show Website is always available and uninterrupted, but does not warrant that the Show Website will always be available or uninterrupted.
3.4 Customer shall provide TickX with:
(a) all reasonable co-operation and assistance; and
(b) all access to such documents, information, data and materials to deliver the Producer360 integration,as TickX reasonably requests in writing from Customer in order for TickX to embed Producer360 on the Show Website.
3.5 Customer shall have no authority, and shall not hold itself out, or permit any person to hold itself out, as being authorised to bind TickX in any way, and shall not do any act which might reasonably create the impression that Customer is so authorised.
3.6 Customer warrants that it holds all licences and permissions necessary, and is legally entitled, to:(a) enter into, and perform its obligations under, the Contract;(b) allow Producer360 to be embedded on the Show Website; and(c) allow Producer360 to link in to the Ticketing Provider’s ticketing system for the purpose of facilitating the sale of Tickets by the Ticketing Provider through Producer360.
3.7 Customer shall comply with all applicable laws and regulations with respect to the embedding of Producer360 on the Show Website.
3.8 Customer may not, unless permitted by the Contract or required by law, copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to Producer360.
3.9 Customer shall indemnify TickX against all liabilities, costs, expenses, damages and losses and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by TickX arising out of or in connection with any breach by Customer of clause 3.6.
4. TickX's obligations
4.1 TickX shall create Producer360 and shall provide Customer with an embeddable code in order to allow Customer to embed Producer360 on the Show Website so that End Users can use Producer360 on the Show Website to identify Tickets.
4.2 In consideration for the payment of the sum of £1 by Customer to TickX, receipt of which TickX hereby acknowledges, TickX grants to Customer a non-exclusive licence to embed Producer360 on the Show Website and to allow End Users to use Producer360 on the Show Website to identify Tickets for the duration, and in accordance with the terms, of the Contract.
4.3 TickX shall have no authority, and shall not hold itself out, or permit any person to hold itself out, as being authorised to bind Customer in any way, and shall not do any act which might reasonably create the impression that TickX is so authorised.
4.4 TickX shall develop, operate and maintain Producer360, and will use its reasonable endeavours to ensure that access to Producer360 on the Show Website is uninterrupted but does not warrant that Producer360 will always be available or uninterrupted.
4.5 TickX shall comply with all applicable laws and regulations with respect to its activities under the Contract.4.6 TickX warrants that it holds all licences and permissions necessary, and is legally entitled, to:
(a) enter into, and perform its obligations under, the Contract; and
(b) licence Producer360 to Customer in accordance with the terms of the Contract.
5. Charges and payment
5.1 All Transactions shall be entered into directly between the Ticketing Provider and the End Users.
5.2 Customer will pay to TickX:
(a) the Commission; and
(b) the Service Fee (if applicable),both of which shall be exclusive of VAT.
5.3 By the 5th of each month, TickX will provide Customer with a report setting out for the previous month:
(a) total number of Tickets sold when an End User has bought from the Ticketing Provider using Producer360;
(b) the total Base Ticket Price relating to such Tickets; and
(c) total Commission payable to TickX for all Transactions processed by the Ticketing Provider for all End Users who have bought from the Show Website using the Producer360 platform.
5.4 TickX shall raise an invoice for the Commission payable as set out in the report in clause 5.3.
5.5 Customer shall within 15 days of the receipt of each invoice pay the Commission to TickX.
5.6 The Customer shall pay the Service Fee in accordance with the Order Form.5.7 Without prejudice to any other right or remedy that it may have, if Customer fails to pay to TickX any sum due under the Contract on the due date Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause
5.7 will accrue each day at 4% a year above the Bank of England's base rate from time to time.
5.8 For the avoidance of doubt, Commission payable to TickX is only due on Tickets purchased directly from the Show Website using the Producer360 platform and not for sales made by other 3rd party ticket agents.
6. Intellectual Property Rights
6.1 Customer warrants that:
(a) it is the owner or licensee of all intellectual property rights subsisting in any Materials and the Show Brand;
(b) it has all rights, licences and permissions necessary in order for it to grant a licence to TickX to use the Materials and to use the Show Brand;
(c) the use by TickX of the Materials or the Show Brand on Producer360 will not in fringe the intellectual property rights of any third party, provided that such use by TickX is in accordance with any reasonable instructions provided by Customer to TickX from time to time.
6.2 TickX warrants and represents that:
(a) it is the owner or licensee of any and all intellectual property rights subsisting in Producer360 and the TickX Brand;
(b) it has all rights, licences and permissions necessary in order for it to grant the licences to Customer under the Contract;
(c) the embedding of Producer360 on the Show Website and the use by End-Users of Producer360 on the Show Website will not infringe the intellectual property rights of any third party;
(d) Producer360 is free from viruses and any other malicious code; and
(e) any updates to Producer360 will not materially adversely impact the performance of Producer360 on the Show Website.
6.3 Customer hereby grants TickX a non-exclusive licence to use the Materials and the Show Brand on Producer360 on the Show Website for the duration of the Contract, provided that such use is in accordance with the reasonable written guidelines and/or instructions provided by Customer to TickX and is prior approved in writing by Customer.
6.4 TickX hereby grants a non-exclusive licence to Customer to use any and all of the TickX Brand on the Show Website for the purpose of embedding Producer360 on the Show Website and directing End Users to Producer360, provided that such use is in accordance with the reasonable written guidelines and/or instructions provided by TickX to Customer.
6.5 TickX shall not sub-license, transfer or otherwise deal with the rights of use of the Materials and ShowBrand granted under the Contract.
6.6 TickX acknowledges that the goodwill and all intellectual property rights in and associated with Show Brand, Show Website and Materials shall at all times remain the exclusive property of Customer. If any rights in the Show Brand, Show Website and Materials accrue to TickX by operation of law or otherwise, TickX shall at its own expense immediately on demand do all acts and things and execute all documents as Customer shall deem necessary to vest the rights absolutely in Customer.
6.7 Each party shall promptly give notice in writing to the other if it becomes aware of:
(a) any infringement or suspected infringement of the Show Website, Materials or the Show Brand; or
(b) any claim that the Show Website, Materials or the Show Brand infringes the rights of any third party, provided that Customer shall only be obligated to do so to the extent that in Customer’s reasonable opinion such infringement or claim may have a material impact on TickX.
6.8 Customer shall have the conduct of all proceedings including the defence to any claim relating to the Show Website, Show Brand or the Materials and shall in its sole discretion decide what action (including litigation, arbitration or compromise), if any, to take in respect of any infringement or alleged infringement of the Show Website, Show Brand or the Materials or passing off or any other claim or counterclaim brought or threatened in respect of the use of the Show Website, Show Brand or the Materials.
6.9 Customer shall indemnify TickX against all liabilities, costs, expenses, damages and losses and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by TickX arising out of or in connection with any claim or proceedings brought against TickX by a third party that TickX’s use of the Materials or the Show Brand on Producer360 in accordance with terms of the Contract infringes the intellectual property rights of such third party, and for any use by Customer of Producer360 other than in accordance with the terms of the Contract.
6.10 TickX shall indemnify Customer against all liabilities, costs, expenses, damages and losses and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses suffered or incurred by Customer arising out of or in connection with any claim or proceedings brought by a third party that TickX’s embedding of Producer360 on the Show Website and the End-Users use of Producer360 infringes the intellectual property rights of any third party.
7. Confidentiality
7.1 Each party (Receiving Party)undertakes that it shall not at any time during the Contract, and for a period of three years after termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party (Disclosing Party) or of any member of the group of companies to which the Disclosing Party belongs (Confidential Information), except as permitted by clause 7.2.
7.2 The Receiving Party may disclose the Confidential Information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the Receiving Party’s rights or carrying out its obligations under or in connection with the Contract. The Receiving Party shall ensure that its employees, officers, representatives or advisers to whom it discloses the Disclosing Party Confidential Information comply with this clause 7; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
7.3 Subject to clause 7.2, the Receiving Party shall not use the Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
7.4 The Receiving Party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.7.5 This clause 7 shall survive termination of the Contract, however arising.
8. Limitation of liability
8.1 This clause 8 sets out the entire financial liability of each party (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the other party arising under or in connection with the Contract.
8.2 Except as expressly and specifically provided in the Contract, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Contract.
8.3 Nothing in the Contract excludes the liability of either party:
(a) for death or personal injury caused by its negligence; or
(b) for fraud or fraudulent misrepresentation.
8.4 Subject to clause 8.3:
(a) Neither party shall be liable whether in tort (including for negligence or breach of statutory duty), contract, restitution or otherwise for any loss of profits, loss of sales, loss of business, and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under the Contract; and
(b) TickX’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the greater of £5,000 or the amount paid to TickX by Customer during the 12 months preceding the date on which the claim arose.
9. Duration and termination
9.1 Subject to earlier termination in accordance with this clause 9, the Contract shall commence on the date of the Contract and shall continue in accordance with the Duration section of the Order Form.
9.2 Without affecting any other right or remedy available to it, either party to the Contract may terminate it with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; or
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
9.3 Without affecting any other right or remedy available to it, TickX may terminate the Contract or suspend performance of any or all of its obligations under the Contract with immediate effect by giving written notice to Customer if:
(a) Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 30 days after being notified to make such payment;
(b) Customer fails to comply with Producer360 Display Requirements;
(c) Customer breaches clauses 3.4 or 3.6; or
(d) TickX is unable to integrate Producer360 with the Ticketing Provider, the Customer, the Shows venue, or any other third party’s ticketing system for the purpose of facilitating the sale of Tickets by the Ticketing Provider through Producer360.
10. Consequences of termination
10.1 On expiry or termination of the Contract for any reason:
(a) all licences and benefits granted under the Contract shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them)belonging to the other party (including the Confidential Information);
(c) Customer shall within 30 days of expiry or termination pay to TickX all of TickX’s outstanding unpaid and undisputed invoices that are due and payable, and all Commission which relates to Transactions completed prior to such termination;
(d) any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect;
(e) termination or expiry of the Contract shall not affect any of the rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
11. Data Protection
11.1 In this clause 11, the following terms shall have the following meaning and shall be construed accordingly:
(a) Applicable Laws means (for so long as and to the extent that they apply to the parties) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law;
(b) Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK;
(c) End-User Personal Data means any Personal Data Processed by TickX on behalf of CUSTOMER pursuant to or in connection with the Contract;
(d) Sub-Processor means any person (including any third party, but excluding an employee of TickX or any employee of its sub-contractors) appointed by or on behalf of TickX to Process End-User Personal Data.
11.2 The terms, "Data Controller", "Data Processor", "Data Protection Impact Assessments", "Data Subject", "Personal Data", "Processing" shall have the same meaning as in the Data Protection Legislation, and their cognate terms shall be construed accordingly.
11.3 The parties acknowledge that for the purposes of the Data Protection Legislation, Customer is the Data Controller and TickX is the Data Processor) of any End-User Personal Data Processed by TickX on behalf of Customer.
11.4 Without prejudice to the generality of clause 11.1, TickX shall, in relation to any End-User Personal Data Processed by TickX:
(a) process that End-User Personal Data only on the written instructions of Customer unless TickX is required by Applicable Laws to otherwise process that End-User Personal Data, in which case TickX shall, to the extent permitted by any Applicable Laws, inform Customer of that legal requirement before the relevant Processing of that End-User Personal Data;
(b) ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of End-User Personal Data and against accidental loss or destruction of, or damage to, End-User Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures;
(c) regularly assess and evaluate the effectiveness of the technical and organisational measures guaranteed above and report to Customer at least once per calendar year and at any time on Customer’s reasonable request, the results of its assessments and evaluations and any actions taken or planned to address any potential deficiencies
(d) ensure that all personnel who have access to and/or process End-User Personal Data are obliged to keep the End-User Personal Data confidential; and
(e) the Customer consents to TickX transferring End-User Personal Data outside of the United Kingdom/European Economic Area to its Sub-Processor in Brazil, provided the following conditions are fulfilled:
(i) Customer or TickX has provided appropriate safeguards in relation to the transfer;
(ii) the data subject has enforceable rights and effective legal remedies;
(iii) TickX complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any End-User Personal Data that is transferred; and
(iv) TickX complies with reasonable instructions notified to it in advance by Customer with respect to the processing of the End-User Personal Data;
(f) assist Customer, at Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security of Processing, breach notifications, Data Protection Impact Assessments and consultations with supervisory authorities or regulators;
(g) notify Customer without undue delay on becoming aware of a End-User Personal Data breach;
(h) at the written direction of Customer, delete or return End-User Personal Data and copies thereof to Customer on termination of the Contract, unless required by Applicable Laws to which TickX is subject to to store the End-User Personal Data; and
(i) maintain and make available to Customer on request all information necessary to demonstrate compliance with this clause 11, and shall allow for and contribute to reasonable audits and access, including inspections, by Customer or an auditor mandated by Customer in relation to the Processing of the End-User Personal Data by TickX as required by Article 28(3)(h) of the General Data Protection Regulation ((EU) 2016/679).11.5 Customer consents to TickX appointing Sub-Processors under the Contract for the purposes of TickX carrying out its obligations under the Contract.
11.6 With respect to each Subprocessor appointed by TickX, TickX shall:
(a) ensure that the arrangement between TickX and the Subprocessor is governed by a written contract including terms which offer at least the same level of protection for End User Personal Data as those set out in this clause and meet the requirements of Article 28(3) of the General Data Protection Regulation ((EU) 2016/679);and
(b) be fully liable to Customer for the acts and omissions of such Subprocessors in relation to any Processing of End User Personal Data Processed on behalf of TickX.
11.7 Where TickX proposes any changes concerning the addition or replacement of any Subprocessor, it shall notify Customer in writing as soon as reasonably practicable prior to implementing such change specifying:
(a) the name of any Subprocessor which it proposes to add or replace;
(b) the Processing activity or activities affected by the proposed change;
(c) the reasons for the proposed change; and
(d) the proposed date for implementation of the change.
12. General
2.1 Force Majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control (including, in the case of Customer, that any performance or performances of the Shows are cancelled for any reason, the Ticketing Provider’s functionality and/or the Show Website are unavailable for a period of more than two consecutive weeks). In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for three months, the party not affected may terminate the Contract by giving 30 days' written notice to the affected party
.12.2 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.3 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
12.4 Entire agreement. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
12.5 Assignment and other dealings. Neither party shall assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the other party.
12.6 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
12.7 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.8 Third party rights. A person who is not a party to the Contract shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
12.9 Notices.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the address specified in the Order Form.
(b) Any notice shall be deemed to have been received:
(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am GMT on the second Business Day after posting or at the time recorded by the delivery service; or
(iii) if sent by email, at 9.00 am GMT on the next Business Day after transmission.
12.10 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England.
12.11 Jurisdiction. Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.