THE FOLLOWING TERMS AND CONDITIONS APPLY TO ALL TICKET HOLDERS (A “HOLDER” AS USED IN THIS AGREEMENT) USING A TICKET, PRINTED AND/OR DIGITAL, TO GAIN ADMITTANCE TO A FAIRS.COM, INC. (“FAIRS.COM” AS USED IN THIS AGREEMENT) EVENT. AN “EVENT” MEANS A TICKET MADE AVAILABLE THROUGH FAIRS.COM’S SERVICES. “FAIRS.COM’S SERVICES” ARE DEFINED AS FAIRS.COM’S ONLINE TICKETING SOFTWARE PLATFORM AND RELATED SERVICES ON FAIRS.COM’S MOBILE APPLICATION AND WEBSITE, AS WELL AS OTHER RELATED PRODUCTS AND SERVICES. ANYONE PURCHASING A TICKET IS CONSIDERED TO HAVE AGREED TO THIS AGREEMENT IN ORDER TO ENTER THE EVENT. ENTRY INTO THE BOUNDARIES OF THE EVENT SHALL BE CONSIDERED ACCEPTANCE
1.TICKET OBLIGATIONS.
1.1. All sales are final. No refunds.
1.2. The purchase of Tickets grants you the revocable license to attend the event described on the Ticket or its confirmation (the “Event”). No other relationship between the Parties, either expressed or implied, is created by your purchase of the Tickets.
1.3. If, for any reason whatsoever, you do not receive a confirmation, or if you receive an error message or encounter a service interruption while you are completing the purchase of Ticket(s), it is your entire responsibility to contact our Customer Service Department at support@fairs.com to confirm whether your order has been properly processed. You are solely responsible for any problem that may occur during the purchase of Ticket(s). In such case, Fairs.com shall not be responsible for any loss (monetary or otherwise) that may result from any problem occurring during the purchase of Ticket(s) through their website, including, without limitation, the failure of a transaction to be completed or confirmed, whether through the actions of Fairs.com and / or its related entities, or a third party.
2. PAYMENT OBLIGATION
2.1. By accepting the terms of this Agreement, you agree to pay the full price of the Ticket(s) ordered, including any applicable taxes and delivery, convenience, and other fees, as described on the Order Confirmation.
3. COPYRIGHT
3.1. All Intellectual Property rights in all materials produced or distributed by Fairs.com in connection with this event are expressly reserved and any unauthorized duplication, publication or distribution is prohibited.
4. LIMITATION OF LIABILITY
4.1. By accepting the terms of the Agreement, you assume all risk, liability and responsibility for any and all damages of any nature suffered by you, including, without limitation, bodily harm and loss of property incurred during or in connection with the event. Furthermore, you hereby waive any and all rights to claim damages, monetary or otherwise, or to institute civil, criminal, administrative or legal proceedings against Fairs.com, its affiliates and other related entities or their directors, officers, administrators, employees, representatives and all other persons acting on behalf of Fairs.com, resulting from any cause whatsoever arising either before, during or after the event. In certain cases, applicable laws may not allow the limitation of liability set forth above, so this limitation of liability may not apply in such particular cases. If any part of this limitation of liability is found to be invalid or unenforceable for any reason, then Fairs.com’s aggregate liability (and that of its affiliates and other related entities or their directors, officers, administrators, employees, representatives and all other persons acting on behalf of Fairs.com) under such circumstances for liabilities that otherwise would have been limited shall not exceed ten US dollars (USD$10).
5. INDEMNIFICATION
5.1. You hereby agree to indemnify and hold harmless Fairs.com, its affiliates and other related entities, their directors, officers, administrators, managers, employees, representatives and all other persons acting on behalf of Fairs.com from and against any and all claims, actions, damages or other demands, including, but not limited to, reasonable costs and expenses of litigation such as counsel fees, arising from or relating to your purchase of Ticket(s) (including, without limitation, relating to your presence at the event and to any of your act or omission before, during or after the event).
6. APPLICABLE LAWS
6.1. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any other jurisdiction. Any legal suit, action, or proceeding arising out of or related to this Agreement shall be instituted exclusively in the federal courts of the United States or the courts of the State of Ohio, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding and waives any objection based on improper venue or forum non conveniens. Where a Court of competent jurisdiction declares a portion of the Agreement invalid or unenforceable, the remainder of the Agreement shall remain in force. The headings in the Agreement are provided for clarity only and do not form an integral part of the Agreement. Where you have read the Agreement in English, the Parties agree that the Agreement shall be drawn up in the English language.
7. PROCESSING OF YOUR DATA
7..1. The processing of your personal data is governed by the Fairs.com Privacy Policy found at https://www.fairs.com/privacy We are not liable for any damages if you use our services and upload the data contrary to these Terms.
8. TEXT MESSAGE (SMS) PROGRAMS
8.1. This section governs text messages sent in connection with your ticket purchase and the events for which you have purchased tickets. By providing your mobile telephone number during purchase, you agree to the terms set forth below.
Fairs.com and the fair, event, or venue from which you purchased tickets (the "Fair") operate two separate text message programs: transactional messages and marketing messages.
Transactional messages are sent by Fairs.com regarding your ticket order and the event you purchased tickets for, including order confirmations, schedule changes, weather-related event updates, gate and entry information, parking information, and other operational notifications relating to your purchase or your attendance. By providing your mobile telephone number during ticket purchase, you agree that Fairs.com may send you automated transactional text messages at that number relating to your order and the event. You may opt out at any time by replying STOP after receiving a message (note that opting out may prevent you from receiving important updates about your event, including cancellations or schedule changes).
Marketing messages are sent by the Fair and may include promotional content such as ticket sales, fair announcements, vendor promotions, sponsor content, and event marketing. Marketing messages are sent only to recipients who separately opt in by affirmatively checking a marketing-consent box at the time of ticket purchase or through another designated consent point. Consent to receive marketing messages is not a condition of purchasing tickets. You may opt out at any time by replying STOP to any marketing message.
You can cancel either SMS program at any time by replying STOP to a message from that program. After you send the SMS message "STOP" to us, we will send you an SMS message to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from that program. Opting out of one program (transactional or marketing) does not automatically opt you out of the other. If you want to join the marketing program again, just sign up as you did the first time and we will start sending SMS messages to you again.
If you are experiencing issues with either messaging program, you can reply with the keyword HELP for more assistance, or you can get help directly at support@fairs.com.
Carriers are not liable for delayed or undelivered messages.
As always, message and data rates may apply for any messages sent to you from us and to us from you. Transactional message frequency varies based on the event and any operational developments. Marketing message frequency varies by Fair and typically increases in the weeks leading up to an event. If you have any questions about your text plan or data plan, it is best to contact your wireless provider.
The SMS programs are compatible with all major US wireless carriers, including AT&T, T-Mobile, Verizon, US Cellular, Boost, Cricket, MetroPCS, and others. You must be 18 years or older, or have the consent of a parent or legal guardian, to enroll in or receive messages through any of these SMS programs. Fairs.com and the Fair may modify or discontinue these SMS programs at any time. Material changes will be communicated in advance where required by law.
If you have any questions regarding privacy, please read our privacy policy at https://www.fairs.com/privacy. Mobile telephone numbers and consent information are not sold or shared with third parties or affiliates for their own marketing or promotional purposes.
9. ACKNOWLEDGEMENT
9.1. This Agreement constitutes the entire agreement of the Company and me with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. This Agreement is binding on and shall ensure to the benefit of me and my heirs and next-of-kin, and the Company and its successors and assigns.
I ACKNOWLEDGE THAT I HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS AGREEMENT AND THAT I AM VOLUNTARILY WAIVING SUBSTANTIAL LEGAL RIGHTS (ON MY BEHALF AND ON BEHALF OF MY HEIRS, EXECUTORS, ADMINISTRATORS AND NEXT-OF-KIN), INCLUDING THE RIGHT TO SUE THE COMPANY AND THE RELEASEES.
This Service Agreement (“Agreement”) is entered into as of the date that you (“Client”) accept the Order (the “Effective Date”) by and between Client and Fairs.com, Inc. (“Fairs”).
RECITALS
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.
TERMS AND CONDITIONS
1. DEFINITIONS.
The following capitalized terms will have the following meanings whenever used in this Agreement.
1.1. “Client Content” means any text, images, audio, video, photographs, Client Data and other
content and material, in any format, provided by or on behalf of Client that is collected, stored in, or run on or through, the Platform or Services, including, without limitation, Client’s name and likeness.
1.2. “Client Data” means all information processed or stored through the Platform or Services 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.
1.3. “Documentation” means Fairs' standard manual related to use of the Platform, if applicable.
1.4. “Order” means an order for access to the Platform (executed by the Client and approved by (Fairs) or for certain Services, the terms of which are incorporated herein by this reference.
1.5. “Platform” means the edition and version of Fairs’ digital ticketing platform and point of sale for on-premises sales, called the “Gate Application.”
1.6. “Services” means Fairs provision of the Platform, website assistance, social media marketing, customer survey administration and other related activities, as well as any other services currently provided by Fairs or provided by Fairs in the future pursuant to an Order.
1.7. “Term” is defined in Section 12 below.
1.8. “User” means any individual who uses the Platform or Services on Client’s behalf or through Client’s account or passwords, whether authorized or not.
2. THE PLATFORM.
2.1. Use of the Platform and Services . During the Term, Client may access and use the Platform and Services 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 of the Platform or Services. Furthermore, Client receives no rights to the Platform other than those specifically granted in the Use of the Platform and Services subsection of this Section 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 or the Services; (b) use the Platform or Services for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Platform or Services; or (c) reverse engineer, decompile, disassemble, or otherwise 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 or Services.
2.4. Platform Revisions . Fairs may revise Platform or Services 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. Except as set forth in the Order, Fairs will not be required to refund the Fees under any circumstances. The Fees may not be modified without mutual written consent.
3.2. Taxes . Fees due under this Agreement are payable to Fairs without deduction and are net 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. However, if applicable law requires withholding or deduction of such taxes or duties, Client shall separately pay Fairs the withheld or deducted amount. Client shall remain responsible for all associated liabilities regarding taxes, including back-taxes and tax penalties.
4. PROFESSIONAL SERVICES.
If Client purchases any Services, such as marketing services
(“Marketing Services”), website hosting and creation services (“Site Services”), or equipment rental services (“Equipment Services”) the parties agree that the terms of the Professional 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 it suspects 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. Neither this Agreement requires that Fairs take any action against Client or any User or other third party for violating this subsection or this Agreement, but Fairs is free to take any such action it sees fit.
6.2. Unauthorized Access . 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 and Services, 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 of the 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.
6.5. Client Content . Client represents and warrants that (a) the Client Content does and will comply with all applicable laws, rules, regulations, orders, and other requirements of governmental agencies; (b) the Client Content (and Fairs’ use thereof) do not, and will not, infringe any copyright, trademark, trade secret or other intellectual property or proprietary right, or constitute a defamation or invasion of the rights of privacy of or publicity of any kind, of any third party; (c) Client has the right to upload, provide, use, copy, display and otherwise provide the Client Content for use with the Services; and (d) the Client Content does not and will not include any material, and do not contain links to any sites containing any material, which is harmful, pornographic, abusive, hateful, obscene, threatening, defamatory or which encourages illegal activity.
7. IP & FEEDBACK.
7.1. IP Rights to the Platform . Fairs retains all right, title, and interest in and to the Platform, including without limitation all software used to provide the Platform 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 and Services 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 that Fairs 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 or Services; 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 AND SERVICES “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 or Services, 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 Client Content; (c) claims related to Client’s tax liability; and (d) 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 Clients’ 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 affirmativeobligation. (“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 the contract term length specified in the order form (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. Term ination 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 Services 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, which may involve an 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, the Client has agreed to set up a connected account with Stripe. Client agrees that Fairs may change its third party payment processor at any time.
13.3. Chargebacks. Fairs may, at its sole discretion, work with the Client to review any credit card chargeback from any transactions on a case-by-case basis. Client agrees that Client shall be liable for all chargebacks and associated fees that Fairs may incur from the payment process. Fairs reserves the right to claw back or require payment for chargebacks from Client.
13.4. Notices. Fairs may send notices pursuant to this Agreement to Client’s email contact points provided by Client, and such notices will be deemed received 24 hours after they are sent. Client may send notices pursuant to this Agreement to support@fairs.com and such notices will be deemed received 72 hours after they are sent.
13.5. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, epidemics, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, government orders responding to any of the foregoing, or other causes beyond the performing party’s reasonable control (a “Force Majeure Event”).
13.6. Assignment & Successors. Client may not assign this Agreement or any of its rights or obligations hereunder without Fairs’ express written consent. Except to the extent forbidden in this subsection, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
13.7. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions
of this Agreement will continue in full force and effect.
13.8. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
13.9. Choice of Law & Jurisdiction: This Agreement and all claims arising out of or related to this Agreement will be governed solely by the internal laws of the State of Delaware, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Columbus, Ohio. This subsection governs all claims arising out of or related to this Agreement, including without limitation tort claims.
13.10. Technology Export. Client shall not: (a) permit any third party to access or use the Platform in violation of any U.S. law or regulation; or (b) export any software provided by Fairs or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Client shall not permit any third party to access or use the Platform in, or export such software to, a country subject to a United States embargo.
13.11. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter, including without limitation, any previous license or access agreements for the Platform, Services or related software provided by Fairs. Neither party has relied upon any such prior or contemporaneous communications.
13.12. Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.
13.13. Amendment. This Agreement may not be amended except through a written agreement by authorized representatives of each party.
ATTACHMENT 1
PROFESSIONAL SERVICES ADDENDUM
This Professional Services Addendum (this “Addendum”), effective as of the date of the Order and is an addition and amendment to the Digital Ticketing and Event Management Agreement and any Orders (“Agreement”) entered into by and between Fairs.com, Inc., a Delaware C-Corp (“Fairs”) Client. Capitalized terms used and not defined in this Addendum have the respective meanings assigned to them in the Agreement. In the event of a conflict between the Agreement and this Addendum, this Addendum shall control. Defined terms not defined herein shall have the meanings set forth in the Agreement. Fairs provides certain services related to marketing and website creation and hosting services. The parties have agreed that Fairs will provide such services as the parties may agree, now and pursuant to future Orders. Therefore, in consideration for the commitments set forth below, the adequacy of which consideration the parties hereby acknowledge, the parties agree as follows.
1. PROFESSIONAL SERVICES.
1.1 Provision of Services . Fairs shall provide the services set forth in each Order (“Services”), and Client shall provide any assistance and cooperation necessary or convenient to facilitate the Services, or called for in an Order.
2. FEES AND EXPENSES.
2.1 For its Services under this Addendum, Client will pay Fairs the fees (“Fees”) described in each Order. Such fees may include money allocated for social media posts that Fairs may agree to manage.
2.2 In addition to the Fees payable to Fairs under this Addendum, Client shall reimburse
Fairs for all out-of-pocket costs and expenses incurred by Fairs on behalf of the Client in connection with performing the Services.
2.3 Except as otherwise specifically provided in an Order, invoices will be rendered for all Fees, costs and expenses under the Agreement as follows:
3. CLIENT RESPONSIBILITIES. Client agrees that in order to receive Professional Services, it will have certain responsibilities. Client agrees to fulfil the responsibilities set out in the Order.
4. REPRESENTATIONS AND WARRANTIES .
4.1 Client represents and warrants to Fairs that: (a) Client has the legal right and authority to enter into this Addendum and to perform its obligations under this Addendum; (b) the Client Properties and all content on Client Properties will comply with all applicable laws, rules, regulations, orders, and other requirements of governmental agencies, including applicable data privacy laws and regulations, the CAN-SPAM Act of 2003, the Telephone Consumer Protection Act and the Federal Trade Commission guidance regarding advertising and endorsements, whether those applicable laws are not in effect or later enacted; and (c) Client Properties and Client content does not infringe, misappropriate or violate a third party’s intellectual property rights, or a third party’s rights of publicity or privacy. “Client Properties” shall mean marketing content created for Client, blog posts, newsletters, social media posts, websites or any other platform
owned or operated by Client.
5. INTELLECTUAL PROPERTY. AS A PART OF THE SERVICES, FAIRS MAY CREATE CERTAIN “DELIVERABLES” ON BEHALF OF CLIENT, THE DETAILS FOR WHICH ARE SET OUT IN AN ORDER. EXCEPT FOR ANY PRE-EXISTING WORKS THAT MAY BE EMBODIED IN DELIVERABLES (AND WHICH SHALL BE SEPARATE FROM THE DELIVERABLES), THE DELIVERABLES HAVE BEEN SPECIALLY ORDERED AND COMMISSIONED BY CLIENT. FAIRS AGREES THAT, SUBJECT TO AND UPON PAYMENT IN FULL OF THE FEES AND OTHER CHARGES INVOICED UNDER THIS ADDENDUM, THE DELIVERABLES ARE A “WORK MADE FOR HIRE” WITH ALL COPYRIGHTS AND OTHER INTELLECTUAL PROPERTY RIGHTS EMBODIED IN THE DELIVERABLES OWNED EXCLUSIVELY BY CLIENT. CLIENT SHALL OBTAIN, AT ITS OWN EXPENSE, ALL CLEARANCES AND NECESSARY RIGHTS, LICENSES, PERMISSIONS AND ALL OTHER AGREEMENTS AND DOCUMENTATION TO PERMIT USE AND PLACEMENT IN MEDIA OF DELIVERABLES UNDER THIS ADDENDUM. CLIENT IS SOLELY RESPONSIBLE FOR ALL PAYMENTS TO THIRD PARTIES IN RELATION TO SUCH USE AND PLACEMENT IN MEDIA. TO THE EXTENT ANY DELIVERABLES DO NOT QUALIFY AS A “WORK MADE FOR HIRE” UNDER APPLICABLE LAW, AND TO THE EXTENT THAT SUCH DELIVERABLES INCLUDE MATERIAL SUBJECT TO ANY INTELLECTUAL PROPERTY RIGHTS PROTECTION, SUBJECT TO AND UPON PAYMENT IN FULL OF THE FEES AND OTHER CHARGES INVOICED UNDER THIS ADDENDUM, FAIRS SHALL AND HEREBY DOES ASSIGN ANY INTELLECTUAL PROPERTY RIGHTS THAT FAIRS MAY HAVE IN AND TO SUCH DELIVERABLES TO CLIENT. “INTELLECTUAL PROPERTY RIGHTS” MEANS ALL WORLDWIDE COPYRIGHT, TRADEMARK AND PATENT RIGHTS (INCLUDING, WITHOUT LIMITATION, THE EXCLUSIVE RIGHT TO MAKE, HAVE MADE, SELL, IMPORT AND EXPORT, DIRECTLY OR THROUGH MULTIPLE CHANNELS OF DISTRIBUTION), TRADE SECRETS, MORAL RIGHTS, AUTHORS’ RIGHTS, RIGHTS OF PUBLICITY AND ANY OTHER INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS THAT EXIST NOW OR LATER COME
INTO EXISTENCE.
