SHOWTIX4U.COM TICKETING SERVICES AGREEMENT
THIS AGREEMENT FOR TICKETING SERVICES ("Agreement") is made by and between DIGITAL THEATRE LLC, a Nevada company, with a principal place of business at PO Box 36133 Las Vegas, NV 89133 ("Company," "Digital Theatre LLC," "We," "Us," or "Our" ), which is in the business of providing reservations, tickets, memberships, certificates, admissions, and/or confirmations that allow the holder or purchaser access to, participation in, or use of, Client events, and You, an Event, Venue, or Activity organization, ("Client," "You," or "Your") which is authorized to provide access to various events, venues, activities, and other programs (collectively, "Event"). The parties hereby agree as follows:
1. Term. The term of this Agreement shall begin on the date which You click the "I accept" button and shall continue until terminated by either party as provided in Section Nineteen (19).
2. Our Services and Responsibilities. Digital Theatre LLC shall provide the following services under this Agreement: (a) as Your agent, display and list Your Event on ShowTix4U website, located at the following world wide web address: showtix4u.com ; (b) accept and process on-line orders for tickets to Your Event and process all credit card payments to said Event on Your behalf and as Your agent; (c) support hypertext links from other websites that link to Our web-based ticketing service functions in support of Your Event; and (d) provide an accounting to You of ticket sales and fees.
3. Fees, Charges, and Payment. Digital Theatre LLC charges fees for Our services that is generated at the time Your Event is listed by Us and when transactions are completed. We will deduct all applicable service charges from Your booking revenue that we collect as Your agent as stated in Our pricing guide on Our website, incorporated by reference herein, and which may change periodically. We will mail all payments to You at the address that You provided when you registered with Our site unless You make other arrangements with Us. Unless We agree otherwise, if sales exceed $100 US or Canadian dollars, We will send ninety-five percent (95%) of the total balance due to You within five (5) business days after the date of the Event. The remaining five percent (5%) will be mailed to you sixty (60) days after the date of the Event to allow for processing and settlement of all returns, disputed charges, and other discrepancies. All sales, fees, charges, and funds are payable in U.S. Dollars for Clients based in the U.S and Canadian Dollars for Clients based in Canada.
If sales are less then $100 US or Canadian dollars, the net balance will roll over to your next event submitted. It is possible to have a negative balance in your ShowTix4U account (more fees incurred than Gross Credit Card transaction sales). In the event of a negative balance, You agree to pay the invoiced amount within 30 days from receiving the request for funds (invoice).
Digital Theatre LLC does not allow for refunds or exchanges. You are able to 'release' tickets from a transaction so they can be purchased by another customer, but You will still incur all fees for these tickets.
4. Cancellations, Credits & Chargebacks. It is Client's responsibility to issue refunds to individual ticket holders for Your Event. If Your Event is cancelled for any reason and a complete refund must be issued to all buyers, the Client must inform Digital Theatre LLC of the cancellation within 24 hours of the originally scheduled event start time. If properly notified, Digital Theatre LLC will refund the ticket face value minus our refund service fees, as per Digital Theatre LLC's PURCHASING AGREEMENT, to the purchasing customer. No payments shall be made to You from Us due to an Event cancellation. Any credit card chargebacks initiated by the purchasing customer for any reason, with the exception of fraudulent use of the credit card, shall be charged back to You. Digital Theatre LLC shall either (i) deduct these costs from Your outstanding balance, whether for that particular Event or for any other Event that list with Us; or (ii) send an invoice to You for said costs if no balance exists. If payment for said invoice is not received by Us within thirty (30) days, We reserve the right, at our sole discretion, to terminate this Agreement as provided in Section Nineteen (19) and to cancel all other Events listed by You as provided herein.
You agree and accept to follow all state and federal laws, rules, and regulations concerning the processing of credit cards.
Digital Theatre LLC and its credit card processors use security measures to screen its Clients who process credit cards through the ShowTix4U website, but We shall hold no liability for the fraudulent use or processing of credit card information by You. If fraudulent use is suspected Your account will be immediately terminated and appropriate legal action will be taken.
5. Ticketing Confirmation. Upon Digital Theatre LLC receipt of a credit card authorization from each individual ticket purchase, Our service generates a confirmation message and issues a unique confirmation number. Client agrees to unconditionally accept, honor, and fulfill all ticketing commitments that have been confirmed by Digital Theatre LLC as Your agent. It is Your responsibility to verify the customer's membership status, confirmation number, and/or any event restrictions prior to the Event. If We learn that You are not honoring Our ticketing commitments, we reserve the right, in our sole discretion, to terminate Your account pursuant to Section Nineteen (19) and cancel any other Events that You have listed with Us pursuant to Section Four (4).
6. Event Restrictions. When submitting Client's Event to Digital Theatre LLC to be listed on Our website, it is Your responsibility to provide to Us any event restrictions associated with said Event. Any Event that requires a restriction for admission, including, but not limited to, age, school or organizational affiliation, or other characteristics, must be clearly stated by You upon submission to Us. It is Your responsibility to ensure that said restriction is lawful and does not violate any Canadian, U.S., state, provincial or local laws prior to submitting the Event to Us. As stated in Section Five (5), it is also Your responsibility to verify that all customers can be admitted to Your Event.
7. Taxes. You are solely responsible for reporting, payment and remittance of any applicable taxes including Canadian or U.S. federal, state, provincial or local taxes. For example, some jurisdictions may charge an amusement or other tax on certain types of Events. It is Your responsibility to know if any applicable laws apply to You and to adjust the ticket price accordingly to account for Your payment or remittance of these taxes. All prices shown by Us on Our web site shall be inclusive of all applicable taxes.
8. Access. You understand and agree that the site may, at times, be inaccessible or inoperable for any reason, including, but not limited to: (i) equipment or communications malfunctions; (ii) periodic maintenance, repairs, or administrative reviews which we may undertake from time-to-time; or (iii) causes beyond our control or which are not reasonably foreseeable by Us.
9. Representations and Warranties. Client represents and warrants the following: (i) You are over eighteen (18) years of age; (ii) You have the right, power, and authority to execute, deliver, and perform this Agreement; (iii) You are a producer, promoter, presenter, or manager of the Event; (iv) You have the authority and right to offer, sell, and honor the tickets to the Event sold on Our website; (v) the Event itself and any material or content provided by You to Us for use on Our website is/are not pornographic, defamatory, grossly offensive, harassing, malicious, or otherwise objectionable and do not infringe or violate the rights of any person or entity, including, but not limited to, copyright, trademark, trade secret, proprietary, intellectual property, and rights of privacy and/or publicity, whether by statute or common law; (vi) You will not use Our website or service for any unacceptable uses; (vii) the Event and the sale of tickets to the Event does not constitute a violation of any federal, state, and/or local law; and (viii) You will only use Our system to transmit and disseminate information to ticket purchasers that is reasonably related to a particular Event or ticket purchase.
10. Misrepresentation of Event. The Event must be accurately and truthfully described when Client submits the Event listing to Digital Theatre LLC to be posted on the website. If We discover and determine, in our sole discretion, that You misrepresented the Event, We will cancel the Event and a refund shall be issued to ticket purchasers pursuant to Section Four (4). If We determine that you repeatedly engage in the conduct described in this section, your account will be terminated and any other Events submitted by You will be cancelled pursuant to Section Four (4).
11. Security. Digital Theatre LLC will take reasonable measures to maintain Client's Event data in a secure manner. We do not store credit card information. We will provide You with an account ID and password that allows You to add, modify, or update Your Event data on Our server. You shall be solely responsible for the confidentiality of Your ID and password and for any authorized or unauthorized access to this site by any person using Your ID and/or password. You agree to notify Us immediately of any unauthorized use of Your password, ID, or any other breach of security discovered by You.
12. Technical Support. Digital Theatre LLC will provide an e-mail form to Client by which You can obtain technical assistance in dealing with any difficulties which may arise in connection with Your use of Our website. We attempt to provide such support in a timely manner, but make no guarantees that We will respond to your inquiry by a particular time.
13. Disclaimer of Warranties. THE DIGITAL THEATRE LLC SERVICE IS PROVIDED "AS IS" WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE SERVICE IS AT YOUR SOLE RISK. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO: (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; (B) THAT THE SITE, OR THE SERVICE PROVIDED BY US, WILL MEET YOUR REQUIREMENTS; (C) THAT THE SITE WILL BE SECURE, UNINTERRUPTED, ACCESSIBLE, OR ERROR-FREE; AND/OR (D) THAT ANY INFORMATION OR MATERIAL OBTAINED FROM THE SITE WILL BE ACCURATE, RELIABLE, COMPLETE, OR FREE FROM VIRUSES OR OTHER FORMS OF MALICIOUS OR DESTRUCTIVE CODE. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US, WHETHER IN ORAL, WRITTEN, OR ELECTRONIC FORM, RELATING TO YOUR USE OF THIS SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
14. Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SITE OR SERVICE, OR THE INTERNET GENERALLY, INCLUDING, BUT NOT LIMITED TO: (A) YOUR USE OR INABILITY TO USE THE SITE; (B) ANY CHANGES TO OR INACCESSIBILITY OF THE SITE; (C) ANY DELAY, FAILURE, UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY TRANSMISSION OR DATA; (D) ANY MATERIAL OR DATA TRANSMITTED OR RECEIVED OR NOT TRANSMITTED OR RECEIVED; AND/OR (E) ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SITE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE LIMITED TO THE TOTAL FEES AND CHARGES PAID BY YOU TO US AND SHALL NOT EXCEED THAT AMOUNT.
15. Indemnification. You agree to indemnify, hold harmless, and defend Us, our employees, and our agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney's fees, asserted by any person, arising out of or relating to: (a) this Agreement and/or any breach by You thereof; (b) Your use of the site, including any data, content, or work transmitted or received by You; (c) any unacceptable or objectionable use of the website, as we determine at Our sole discretion; and (d) any negligent or willful misconduct by You.
16. Confidentiality and Non-Disclosure. Client understands and acknowledges that Digital Theatre LLC is the owner of valuable trade secrets and confidential, non-public, and proprietary information (collectively "Confidential Information") and acknowledges that the services which We perform involve the furnishing of Confidential Information to You including, but not limited to: (1) customer names, mailing addresses, and other personally-identifiable information; (2) sales; (3) market demographics; (4) pricing; and (5) business strategy, and that the goodwill of Digital Theatre LLC depends, in part, upon You keeping such information confidential. You agree to use your best efforts to protect Our Confidential Information and to implement security measures to keep said information confidential. Except pursuant to court order or the prior written consent of Us, You agree that You shall not disclose, distribute, sell, license, transmit, or disseminate any Confidential Information to any other party or permit or cause any unauthorized party to disclose, examine, and/or reproduce any reports, documents, transmissions, or data containing Confidential Information prepared or owned by Us. If You are requested or required to disclose Confidential Information pursuant to legal proceedings, You shall promptly notify Us so that We may prepare a response to said legal proceedings.
17. Non-Solicitation. Client agrees that You shall not solicit or contact, or assist anyone else in soliciting or contacting, via e-mail or through other means, any of Our customers in order to purchase, buy, sell, acquire, or obtain any other product, service, or other solicitation, or for the purpose of terminating, altering, or in any way modifying Our customers' relationship with Us.
18. Promotion of Event. Client shall use reasonable efforts to create, produce, and distribute marketing and promotional materials, and/or otherwise create marketing and promotional campaigns, which state that tickets to Your Event shall be available for sale at the ShowTix4U.com website.
19. Termination. Except as provided elsewhere in this Agreement, either party may terminate this Agreement at any time upon seven (7) days notice to the other as provided in Section Twenty-Nine (29). If You terminate this Agreement after you have submitted your Event to us, Your Event shall be cancelled pursuant to Section Four (4).
20. Independent Contractors. Digital Theatre LLC and Client are and shall be independent contractors and neither party by virtue of this Agreement shall have any right, power, or authority to act or create any obligation, express or implied, on behalf of the other; except that We are authorized as your agent to sell tickets which commit you to providing admissions to Events to customers who purchase such tickets.
22. No Assignment or Delegation. No rights, obligations, or duties of this Agreement shall be assigned or delegated by You. Any such attempted assignment or delegation shall be void and of no effect.
23. Waiver. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver.
25. Force Majeure. If the performance of any part of this Agreement by either party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused to the extent that it is prevented, hindered, or delayed by such causes.
26. Severability. If any one or more of the provisions contained in this Agreement shall for any reason be found to be invalid, illegal, or unenforceable in any respect, said finding shall not affect the remaining provisions of this Agreement, which shall be enforceable to the fullest extent permitted by law.
27. Arbitration. Any controversy or claim arising out of or relating to this Agreement or a breach thereof, with the exception of any injunctive or equitable relief sought by Us for any violation of this Agreement, shall be submitted to binding arbitration in Las Vegas, Nevada in accordance with the rules and procedures of the American Arbitration Association ("AAA"), with the exception of any conflicts-of-law provisions.
28. Governing Law and Forum. This Agreement is made in, and shall be governed by, the laws of Nevada, excluding its conflicts-of-law provisions. If, for any reason, the Arbitration provision contained in Section Twenty-Seven (27) shall be found to be invalid or unenforceable in any respect, or You decide to challenge the arbitrator's decision or this Agreement, or We initiate equitable proceedings, all actions, claims, or disputes arising under or relating to this Agreement shall be brought in the federal or state courts of Las Vegas, Nevada. You irrevocably submit and consent to the exercise of subject matter jurisdiction and personal jurisdiction over you by the federal and/or state courts in Nevada. You hereby irrevocably waive any and all objections which You may now or hereafter have to the exercise of personal and subject matter jurisdiction by the federal or state courts in Nevada and to the venue of any such suit, action, or proceeding brought in any federal or state court in Las Vegas, Nevada.
30. Remedies. In order to avoid irreparable injury to Us, in the event of any breach or threatened breach by You of the provisions of this Agreement, We shall be entitled to an injunction and/or other equitable relief restraining such breach. Nothing in this Agreement shall be construed as prohibiting Us from pursuing any other remedies available to Us for such breach or threatened breach, including the recovery of monetary damages from You.
31. Survivability. The respective rights and obligations of the parties under Sections Thirteen (13) through Seventeen (17), inclusive, and Sections Twenty-Seven (27) and Twenty-Eight (28) and as otherwise provided in this Agreement, shall survive any termination or expiration of this Agreement.
32. Benefit. Except as otherwise expressly provided herein, this Agreement shall inure to the benefit of and be binding upon both parties, their heirs, executors, administrators, and legal representatives.
33. Further Assurances. You agree to execute and deliver any additional documents and instruments and perform any additional acts, in a reasonable period of time, that may be appropriate or necessary to perform and effectuate the provisions of this Agreement.
Headings and Order. The headings and sequential order of the sections contained in this Agreement are for convenience or reference only and shall have no substantive or procedural effects in construing the provisions of this Agreement.