This Service Agreement (“Agreement”) is entered into asof the date that you (“Client”) accept the Order (the “Effective Date”) by and between Client and RRC Innovation, Inc, dba “Fairs.com”. (hereinafter “Fairs”).
Fairs provides an online platform to allow Client to make online ticket sales to its Clients, and the parties have agreed that Fairs will provide such service to Client along with related support. Therefore, in consideration of the mutual covenants, terms, and conditions set forth below, including those outlined on any applicable Order, the adequacy of which consideration is hereby accepted and acknowledged, the parties agree as set forth below.
1. DEFINITIONS.
The following capitalized terms will have the following meanings whenever used in this Agreement.
1.1. “Client Data”means all information processed or stored through the Platform by Client or on Client’s behalf. Client data does not include payment records, credit cards or other information Client uses to pay Fairs, or other information and records related to Client’s account, including without limitation identifying information related to Client staff involved in payment or other management of such account.
“Documentation” means Fairs' standard manual related to use of the Platform, if applicable.
1.2. “Order”means an order for access to the Platform (executed by the Client and approved by Fairs) or a purchase order setting forth applicable pricing, the terms of which are incorporated herein by this reference.
1.3. “Platform”means the edition and version of Fairs’ digital ticketing platform and point of sale for on-premises sales, called the “Gate Application.”.
1.4. “Term” is defined in Section 12 below.
1.5. “User” means any individual who uses the Platform on Client’s behalf or through Client’s account or passwords, whether authorized or not.
2. THE PLATFORM.
2.1. Use of thePlatform. During the Term, Client may access and use the Platform pursuant to the terms of any outstanding Order, including such features and functions as the Order requires.
2.2. Restrictions use of the Platform. Client receives no title to or ownership of any copy or ofthe Platform itself. Furthermore, Client receives no rights to the Platform other than those specifically granted in the Use of the Platform subsection of this Section 2 set forth above.Without limiting the generality of the foregoing, Client shall not: (a) modify,create derivative works from, distribute, publicly display, publicly perform,or sublicense the Platform; (b) use
the Platform forservice bureau or time-sharing purposes or in any other way allow third partiesto exploit the Platform; or (c) reverse engineer, decompile, disassemble, orotherwise attempt to derive any of the Platform’s source code.
2.3. Documentation.If Documentation is provided, Client may reproduce and use the Documentation solely as necessary to support Users’ use of the Platform.
2.4. Platform Revisions. Fairs may revise Platform features and functions at any time,including without limitation by removing such features and functions.
3. PAYMENT.
3.1. Fees. Client shall be responsible for paying the “Fees” set out in the Order Form. Except asset forth in the Order Form, Fairs will not be required to refund the Fees under any circumstances.
3.2. Taxes.Amounts due under this Agreement are payable to Fairs without deduction and arenet of any tax, tariff, duty, or assessment imposed by any government authority(national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value added tax withheld at the source. If applicable law requires withholding or deduction of such taxes or duties, Client shall separately pay Fairs the withheld or deducted amount. However, the prior two sentences do not apply to taxes based on Fairs’ net income.
4. MARKETING SERVICES.
If Client purchases marketing services (“Marketing Services”), the parties agree that the terms of the Marketing Services Addendum attached hereto as Attachment 1 will apply.
5. CLIENT DATA & PRIVACY.
5.1. Customer’s Data and Applications. Client hereby grants to Fairs the right and a license to host, copy, transmit, adapt and display Customer Data for its internal business purposes.
6. CLIENT’S RESPONSIBILITIES & RESTRICTIONS.
6.1. Acceptable Use.Client shall not: (a) use the Platform for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Platform; (b)provide Platform passwords or other log-in information to any third party; (c)share non-public Platform features or content with any third party; (d) access the Platform in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Platform,or to copy any ideas, features, functions or graphics of the Platform; or (e)engage in web scraping or data scraping on or related to the Platform,including without limitation collection of information through any software that simulates human activity or any bot or web crawler. In the event that itsuspects any breach of the requirements of this subsection, including without limitation by Users, Fairs may suspend Client’s access to the Platform without advanced notice, in addition to such other remedies as Fairs may have. Neitherthis Agreement requires that Fairs take any action against Client or any User or other third party for violating this subsection or this Agreement, but Fairsis free to take any such action it sees fit.
6.2. UnauthorizedAccess. Client shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting its passwords and other log-in information. Client shall notify Fairs immediately of any known or suspected unauthorized use of the Platform or breach of its security and shall use best efforts to stop said breach.
6.3. Compliance with Laws. In its use of the Platform, Client shall comply with all applicable laws, including without limitation Privacy/Security laws.
6.4. Users &Platform Access. Client is responsible and liable for: (a) Users’ use ofthe Platform, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of this Agreement applicable to Client; and (b) any use of the Platform through Client’s account, whether authorized or unauthorized.
7. IP & FEEDBACK.
7.1. IP Rights to thePlatform. Fairs retains all right, title, and interest in and to thePlatform, including without limitation all software used to provide thePlatform and all graphics, user interfaces, logos, and trademarks reproduced through the Platform. This Agreement does not grant Client any intellectual property license or rights in or to the Platform or any of its components,except to the limited extent that such rights are necessary for Client’s use of the Platform as specifically authorized by this Agreement. Client recognizes that the Platform and its components are protected by copyright and other laws.
7.2. Feedback.Fairs has not agreed to and does not agree to treat as confidential any Feedback (as defined below) that Client, Client’s Clients, or other Users give Fairs, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Fairs’ right to use, profit from,disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Client. Feedback will not be considered Client’s trade secret. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Fairs’ products or services.)
8. CONFIDENTIAL INFORMATION.
8.1. Confidential Information Defined. “Confidential Information” refers to the following items Fairs discloses to Client: (a)any document Fairs marks “Confidential”; (b) any information Fairs orally designates as “Confidential” at the time of disclosure, provided Fairs confirms such designation in writing within five business days; (c) the Documentation,whether or not marked or designated confidential; and (d) any other nonpublic,sensitive information Client should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Client’s possession at the time of disclosure; (ii) is independently developed by Client without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Client’s improper action or inaction; or (iv) is approved for release in writing by Client. Client is on notice that the Confidential Information may include Fairs’ valuable trade secrets.
8.2. Nondisclosure. Client shall not use Confidential Information for any purpose other than to use the Platform as contemplated under this Agreement (the “Purpose”).Client: (a) shall not disclose Confidential Information to any employee or contractor of Client unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Client with terms no less restrictive than those of this subsection; and (b) shall not disclose Confidential Information to any other third party without Fairs’s prior written consent. Without limiting the generality of the foregoing, Client shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Client shall promptly notify Fairs of any misuse or misappropriation of Confidential Information that comes to Client’s attention.Notwithstanding the foregoing, Client may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Client shall give Fairs prompt notice of any such legal or governmental demand and reasonably cooperate with Fairs in any effort to seek a protective order or otherwise to contest such required disclosure, at Fairs’s expense.
8.3. Injunction.Client agrees that: (a) no adequate remedy exists at law if it breaches any of its obligations in this Section8; (b) it would be difficult to determine the damages resulting from its breach of this Section 8, and such breach would cause irreparable harm to Fairs; and (iii) a grant of injunctive relief provides the best remedy for any such breach, without any requirement thatFairs prove actual damage or post a bond or other security. Client waives any opposition to such injunctive relief or any right to such proof, bond, or other security.
(This subsection does not limit either party’s right to injunctive relief for breaches not listed.)
8.4. Termination& Return. With respect to each item of Confidential Information, the obligations of the Nondisclosure subsection of this Section 8 will terminate two (2) years after the date of disclosure; provided that such obligations related to Confidential Information constituting Fairs’ trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Client shall return all copies of Confidential Information to Fairs or certify, in writing, the destruction thereof.
8.5. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Fairs will retain all right, title, and interest in and to all Confidential Information.
9. REPRESENTATIONS & WARRANTIES.
9.1. Client represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the Platform; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
9.2. Warranty Disclaimers.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, CLIENT ACCEPTS THE PLATFORM "AS IS," WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) FAIRS HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CLIENT OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) FAIRS DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) FAIRS DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CLIENT DATA WILL REMAIN PRIVATE OR SECURE.
10. INDEMNIFICATION.
Client shall defend, indemnify, and hold harmless Fairs and the Fairs Associates (as defined below) against any "Indemnified Claim," meaning any third party claim, suit, or proceeding arising out of or related to Client's alleged or actual use of, misuse of, or failure to use the Platform, including without limitation: (a) claims by Users or by Client's employees, as well as by Client's own Clients; (b) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Platform through Client's account, including without limitation by Client Data; and (c) claims that any use of the Platform through Client's account (including by Users) harasses, defames, or defrauds a third party or violates the CAN-SPAM Act of 2003 or any other law or restriction on electronic advertising. Client's obligations set forth in this Section 10 include, without limitation: (i) settlement at Client's expense and payment of judgments finally awarded by a court of competent jurisdiction, as well as payment of court costs and other reasonable expenses; and (ii) reimbursement of reasonable attorneys' fees incurred before Client's assumption of the defense (but not attorneys' fees incurred thereafter). If Client fails to assume the defense on time to avoid prejudicing the defense, Fairs may defend the Indemnified Claim, without loss of rights pursuant to this Section 10. Fairs will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it or a Fairs Associate admit wrongdoing or liability or subjects either of them to any ongoing affirmative obligation. ("Fairs Associates" are Fairs' officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.
11. LIMITATION OF LIABILITY.
11.1. Dollar Cap.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FAIRS' CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF FEES PAID BY CLIENT TO FAIRS IN THE TWELVE (12) MONTHS PROCEEDING THE CLAIM.
11.2. Excluded Damages.
Except with regard to breaches of Section 8 (Confidential Information), IN NO EVENT WILL FAIRS BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
11.3. Clarifications & Disclaimers.
THE LIABILITIES LIMITED BY THIS SECTION 11 APPLY TO THE BENEFIT OF FAIRS' OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND THIRD PARTY CONTRACTORS, AS WELL AS: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF FAIRS IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CLIENT'S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. Client acknowledges and agrees that Fairs has based its pricing on and entered into this Agreement in reliance upon the limitations of liability and disclaimers of warranties and damages in this Section 11 and that such terms form an essential basis of the bargain between the parties. If applicable law limits the application of the provisions of this Section 11, Fairs' liability will be limited to the maximum extent permissible. For the avoidance of doubt, Fairs' liability limits and other rights set forth in this Section 11 apply likewise to Fairs' affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
12. TERM & TERMINATION.
12.1. Term.
The term of this Agreement will commence on the Effective Date and continue for a period of one (1) year (the "Initial Term"). Thereafter, the Term will renew for successive one (1) year periods (each, a "Renewal Term," and collectively with the Initial Term, the "Term"), unless either party refuses such renewal by written notice 60 or more days before the renewal date.
12.2. Termination for Cause.
Either party may terminate this Agreement for the other's material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the other party first cures such breach, or effective immediately if the breach is not subject to cure.
12.3. Effects of Termination.
Upon termination of this Agreement, Client shall cease all use of the Platform and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Client to pay fees incurred before termination; (b) Sections 7 (IP & Feedback), 8 (Confidential Information), the Warranty Disclaimers subsection of Section 9, 10 (Indemnification), and 11 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
13. MISCELLANEOUS.
13.1. Independent Contractors.
The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other's behalf.
13.2. Payment Processing Utilization.
Client agrees to utilize Fairs' payment processing services or to engage with Fairs' external third party payment processor partner, in order to provide Client direct access to face value ticket revenue reporting and PCI compliant financial transactions. Currently