TICKETNETWORK PRIVATE LABEL AGREEMENT
BY ACKNOWLEDGING “I AGREE”, CLIENT ACCEPTS AND AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY.
This TicketNetwork Private Label Agreement (this “Agreement”), is by and between TicketNetwork, Inc. (“TicketNetwork” or “TN”) and you, or the individual, company or other entity that you represent (“Client”) (individually, each a “Party” and collectively, the “Parties”) is effective as of the date Client accepts this Agreement by acknowledging “I AGREE”.
WHEREAS, TicketNetwork is in the business of maintaining an event ticket exchange of tickets owned by third party sellers and suppliers (“TN Exchange”) and marketing the TN Exchange through third party private label Internet domains and websites (“Private Label Program”); and
WHEREAS, Client is a third-party marketer who owns, controls and/or operates one or more Internet domains and websites (“Private Label Sites”) and wishes to participate in the Private Label Program;
NOW THEREFORE, in consideration of the mutual promises hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
I. CERTAIN DEFINITIONS
“Accepted Sale” means a ticket purchase placed by a Customer (defined below) and processed by the Ticket Seller (defined below) as a completed transaction.
“Business Development Manager” or “BDM” means the TN associate assigned to Client to assist Client with the Private Label Program.
“Commission” means amount TN pays to Client for all Accepted Sales through the Private Label Site during the Term of this Agreement.
“Content” means material on Client’s site and includes but is not limited to domain name, marketing and advertising content, but excludes content provided by TN or required by TN to be on Client’s Private Label Site.
“Coupon Code” means a promotional code, discount code or coupon code that can be used to change the List Price.
“Customer” means a visitor to the Private Label Site who completes a purchase of tickets listed through the TN Exchange.
“Fulfillment Method” means TN will facilitate and fulfill the Transactions on behalf of the Ticket Seller.
“List Price” means the price of a ticket presented to the Customer on a Private Label Site which may or may not include an additional Markup (defined below) applied to the Wholesale Ticket Price (defined below) by Client.
“Markup” means all price changes applied to the Wholesale Ticket Price by TN on behalf of Client. A Markup may include but not be limited to: a discount to the List Price of the ticket (whether by use of Coupon Code or other means) or an amount added and included in the List Price of the ticket. This is separate and apart from the Service Fee (defined below).
“Service Fee” means an additional fee associated with the operation of the Private Label Site and other costs. The Service Fee is added by TN at the direction of Client to the List Price or included in the List Price.
“Technical Services” means any Client requested changes to the Private Label Site.
“TicketNetwork Direct Method” means Customers deal directly with the Ticket Seller for fulfillment of their Transactions.
“Ticket Seller” means a party who lists tickets for sale on the TN Exchange.
“Transaction” means a ticket purchase in which a Customer supplies valid payment information, whether accomplished by means of a telephone or cell phone call, the Internet, email, broadband, Internet II, wireless and handheld devices, cell phones browser or digital appliances or other digital interactive means, networks, devices or transmissions whether existing now or in the future.
“TN APIs” means the TN provided application program interfaces
“TN Portal” or “WebAdmin” means TN’s online portal, where Client can view information about its TN account and the Private Label Program and track sales made through the Private Label Sites.
“WebServices” means plug-ins or web services used for setting up and maintaining the Private Label Site.
“Wholesale Ticket Price” means the price for an individual ticket as listed by the Ticket Seller.
II. PRIVATE LABEL PROGRAM SERVICES, WEBSITE OPTIONS, AND FEES
A. License. TN hereby grants Client a non-exclusive license to display the TN Exchange, to promote and market the TN Exchange, to use the TNAPIs, and to use and access the TN Portal and WebAdmin subject to the terms of this Agreement.
B. Account Services, Website Options, and Fees.
a. Business Development Manager. TN will assign Client a Business Development Manager to oversee Client’s account and who will be the primary contact for Client’s account. Either Client’s BDM or a member of their team will assist Client with hosted website setup and branding, which may include but not be limited to providing WebServices and connecting the Private Label Site to TN’s ticket inventory feed via the TN APIs. Client may be assigned to a new Business Development Manager at TN’s discretion. TN will provide Client with prompt account services Monday through Friday from 8:00 AM until 7:00 PM excluding holidays and on holidays and weekends, Client’s BDM will respond to high priority requests as soon as possible.
b. Website Types and Private Label Fees. Client will select their preferred type of Private Label Site on Exhibit B and the following services and fees shall apply:
1. Website Type. Client may choose to have a standard TN template Private Label website developed by TN (a “Signature Site”) or Client may develop their Private Label website themselves or with the assistance of a third-party provider (a “Self-Developed Site.”)
2. Private Label Program Fee. i. Client agrees to pay an initial fee of One Thousand Dollars ($1,000.00) (the “Program Fee”). The Program Fee covers TN’s administrative costs for services provided through the website and for administering the program, one (1) hour of Technical Services, and other website expenses such as the purchase and installation of the check-out secure socket layers (“SSL”) certificate for a Private Label Site for only one domain. If Client would like a site-wide SSL or an SSL for more than one domain or for any subdomains (i.e. a Wildcard certificate) Client must purchase it as its own additional expense. Client’s BDM can provide Client with more information on which certificates are acceptable. Client may choose to use some or all of the services included with the Program Fee however the Program Fee will not be adjusted due to use of fewer than all of the services included.
ii. One year after the Effective Date and every subsequent year thereafter, if Client does not generate at least Sixty Thousand Dollars ($60,000.00) total in Accepted Sales via the Private Label Site(s) (the “Sales Threshold”) during the previous year, Client will be required to pay the Program Fee in order for TN to maintain the Private Label Site and to continue this Agreement.
iii. The initial Program Fee will be due upon signing up for the Private Label Program and for each year thereafter the Program Fee, if any, will be due at the beginning of the applicable year. If Client does not pay the Program Fee as required TN may, in its discretion, do all or some of the following: terminate this Agreement immediately, collect late fees pursuant to Section II (B) (c), or pursue its rights under Section V(E).
iv. For any Technical Services in excess of one (1) hour Client will be billed a fee at a rate of One Hundred Dollars ($100) per hour in fifteen (15) minute increments. Client will not be billed for Technical Services if the changes TN makes to the Private Label Site are necessary due to circumstances caused by TN. Payment for Technical Services will be initiated by TN weekly.
c. Payment of Fees. For all fees due under this Section II (B) TN will initiate payment by ACH or charging Client’s credit card on file when due and subsequently send an email invoice to Client showing all charges for which payment was made. If TN is unable to collect payment when due, the payment will be considered late, and all late payments are subject to a late fee of four percent (4%). As part of the Private Label Program on-boarding process Client must sign any required forms such as an Automated Clearing House (“ACH”) authorization form and provide TN with credit card information so that TN can make ACH withdrawals and initiate payment via a charge to Client’s credit card to obtain payment for any fees due under this Agreement. All the fees, the services included with each fee, and the Sales Threshold set forth in this Section II B are subject to change at any time at TN’s discretion. Client will receive email notice of any changes at least thirty (30) days in advance.
TN agrees to provide Client with additional services (“Additional Services”) selected by Client as part of the Private Label Program. Such Additional Services include but are not limited to a comprehensive email marketing program. Use of Additional Services is subject to the terms and conditions of this Agreement as well as any terms and conditions applicable to use of the applicable Additional Services. By using any Additional Services Client consents to all applicable terms and conditions. A list of Additional Services and applicable terms and conditions are available for review on the TN Portal and WebAdmin. It is Client’s responsibility to review the TN Portal and WebAdmin regularly to be aware of any modifications or updates to the Additional Services or terms applicable to using those services.
III. TERM AND TERMINATION
A. Initial Term. The initial term of this Agreement (the “Initial Term”) shall be for three (3) years.
B. Renewal Terms. After the Initial Term, this Agreement shall automatically renew for subsequent three (3) year terms (“Renewal Terms”) unless earlier terminated in accordance with the terms of this Agreement or either party gives the other party thirty (30) days’ written notice of non-renewal prior to the expiration of the Initial Term or the then-current Renewal Term. The Initial Term and any Renewal Terms shall collectively be known as the “Term.”
C. Termination. Either party may terminate this Agreement if the other party materially breaches any provision of this Agreement if the allegedly breaching party has not cured the breach within fifteen (15) business days of receipt of written notice specifying the nature of the breach. TN may also terminate this Agreement, at any time during the Term due to legal or regulatory reasons or if TN decides to discontinue the Private Label Program completely. If Client has breached this Agreement, TN may (in addition to any other rights or remedies available to TN) withhold any Commission payable to Client under this Agreement. TN may terminate this Agreement for convenience, with thirty (30) days written notice to Client.
D. Suspension. TN may suspend Client’s participation in the Private Label Program if TN believes, in good faith, that Client may be violating any requirement or restriction stated in this Agreement until such time as Client remedies such violation.
IV. PRIVATE LABEL PROGRAM SALES AND COMMISSION
A. Private Label Site Sales. The Private Label Site shall display tickets that will be processed using the TicketNetwork Direct Method as well as tickets that will be processed using the Fulfillment Method.
B. Pricing; Discounts; Coupon Codes. The Ticket Seller sets the Wholesale Ticket Price; Client cannot adjust Wholesale Ticket Prices on the Private Label Site. However, Client may add or deduct a Markup and a Service Fee to tickets listed on the Private Label Site and processed under both the TicketNetwork Direct Method and the Fulfillment Method. Client must email their Business Development Manager to request any Pricing Change. Requests made by phone shall not be honored. A Pricing Change is any change to the List Price i.e., a change to the Markup or Service Fee and creation of any Coupon Codes. The Business Development Manager will respond in writing to any such request and indicate whether the request has been processed. Generally, the Business Development Manager will not process any pricing change that could result in TN not being able to collect the full amount of the Wholesale Ticket Price, the Retain Amount and the value of the Coupon Code. The net Markup plus Service Fee, including deducting any Coupon Code(s) the Client decides to offer to Customer (“Net Rate”), must be at least equal to the sum of the Retain Amount due to TN, as specified in Exhibit B, and the Wholesale Ticket Price. The “Retain Amount” is calculated as a percentage of each order’s Wholesale Ticket Price and is retained by TN. Client’s Retain Amount will be determined by TN and it will be set forth in Exhibit B. In the event that the Net Rate is less than the sum of the Retain Amount and the Wholesale Ticket Price for any reason, TN shall reduce Client’s Commission in order to preserve the Retain Amount due to TN and the Wholesale Ticket Price due to the Ticket Seller. Client understands and agrees that it is possible, due to the misuse of Coupon Codes, Markup, Service Fees, or any other form of reduction to the List Price or Wholesale Ticket Price, for Client to owe TN money in an amount equal to the agreed upon Retain Amount and the Wholesale Ticket Price for each order. TN shall have the right to deduct such amounts from Client’s Commission payment(s) and take further action as specified in Section V (E).
C. Commission and Customer Refunds.
Commission shall be calculated as set forth in the following examples. These examples are for illustrative purposes only and may not reflect Client’s actual Commission or Retain Amount. Note: in these examples, the Retain Amount is 3% of the Wholesale Ticket Price. A similar Fulfillment Method order would have a Retain Amount of 4%, but because the prices for Fulfillment Method orders reflect a Mark Up of 1%, there is no net impact to Client for Fulfillment Method orders versus TicketNetwork Direct Method orders.
Example 1: TicketNetwork Direct Method Order
Wholesale Ticket Price: $100
-10% Markup on Private Label Site (“List Price”)
+33% Service Fee
Customer Pays: $119.70
(i.e., $100 – $10 = $90 + 33% [$29.70] = $119.70)
Ticket Seller payment $100
TN Retain Amount: $3
Client’s Commission $16.70
Example 2: TicketNetwork Direct Method Order with Coupon Code Used by Customer
Wholesale Ticket Price: $100
-10% Markup on Private Label Site (“List Price”)
+33% Service Fee
-10% Coupon Code offered by Client via RetailMeNot.com
(i.e., $100 – $10 = $90 + 33% [$29.70] – 10% Coupon Code [$9.00] = $110.70)
Ticket Seller will retain $100
TN Retain Amount: $3
Client’s Commission: $7.70
Note Coupon Code is applied to the List Price and does not include Service Fee.
Example 3: TicketNetwork Direct Method Order (with Coupon Code that exceeds Wholesale Ticket Price and Retain Amount)
Wholesale Ticket Price: $100
-10% Markup on Private Label Site (“List Price”)
+33% Service Fee
-$50 Coupon Code Redeemed
Customer Pays: $69.70
(i.e., $100 – $10= $90 + 33% [$29.70] – $50 Coupon Code [-$50] = $69.70)
Ticket Seller will retain $100
TN Retain Amount: $3
Client’s Commission: $69.70 – $100 (Wholesale Ticket Price) -$3 (Retain Amount) = -$33.30
Note in this example Client has a deficit of -$33.30 so Client owes TN $33.30.
After Client accepts this Agreement TN will send an email to Client with a completed Exhibit B the Private Label Program Retain Amount Form (an example of which is attached hereto) specifying the Retain Amount applicable to Client. Client shall execute Exhibit B within two (2) business days of the date Client accepts this Agreement.
If Client has received Commission for an order that is later cancelled entirely or partially for any reason, or for which TN must give a refund for any reason, including but not limited to a: Force Majeure (defined in Section XI (K)), dispute, credit card chargeback, cancelled event, or invalid ticket or any other claim related to a customer’s inability to use a ticket, the amount of Commission paid to Client less any Retain Amount that TN kept for that order shall be considered an overpayment of Commission (“Overpayment.”) TN shall be entitled to recover the Overpayment from Client. Additionally if Client uses the Fulfillment Method and TN is required to give a Customer a refund or if TN reasonably believes TN may be required to give a Customer a refund for any reason including but not limited to a: Force Majeure (defined in Section XI (K)), dispute, credit card chargeback, cancelled event, or invalid ticket or any other claim related to a Customer’s inability to use a ticket, Client shall be required to repay TN the amount of the Overpayment and the Customer Refund, “Customer Refund” means the full amount TN refunded to the Customer which may include amounts to satisfy a website satisfaction guarantee. To recover the Customer Refund and/or Overpayment TN may, at its option, either collect if from any Commission owed to Client, exercise its rights under Section V (E), or send an invoice to Client for the Customer Refund and/or Overpayment. If TN sends Client an invoice for a Customer Refund and/or Overpayment the invoice shall be due upon receipt.
D. Commission Payment Date. For most Accepted Sales made through the Private Label Site, Client shall be paid Commission on or around the fifteenth of the next calendar month, however when Client has achieved Accepted Sales of Forty Thousand Dollars ($40,000) in a calendar month, for most Accepted Sales TN will pay Client Commission weekly on or around one (1) week after the Accepted Sale. Notwithstanding the foregoing in unusual circumstances such as the occurrence of a Force Majeure (defined in Section XI (K)) TN shall be entitled to withhold any Commission due to Client and amounts that TN can reasonably determine Client may owe TN as Overpayment or Customer Refund for a reasonable amount of time to be determined in TN’s reasonable discretion based on the conditions of the market and other relevant factors. TN will not make any Commission payment if the amount due is less than fifty dollars ($50.00.) If the Commission payment due is less than fifty dollars ($50) TN may retain the Commission until Client has earned fifty dollars ($50.00.)
E. Wire Transfer Fee. Should Client request Client’s Commission be paid by wire transfer, Client is responsible for any and all fees relating to the wire transfer.
F. Commission Disputes. If Client believes the Commission amount is incorrect, Client must contact its Business Development Manager in writing within ninety (90) days of the Commission payment date, and TN and Client shall work in good faith toward investigating, and if appropriate, reconciling the Commission amount.
V. OBLIGATIONS AND RIGHTS OF TN
A. Intellectual Property Rights. TN shall retain all right, title and interest in and to all patents, copyrights, inventions, trademarks, trade names, logos, service marks, domain names, content, information and all other materials created or derived by TN and provided to Client.
B. Ethical Standards. TN will act fairly and honestly in all transactions with Client and with others and will maintain the high ethical standards of business conduct as required by TN’s internal policy. TN also represents and warrants that it shall ensure that its employees and agents shall act in a competent and professional manner and in accordance with industry best standards in performing TN’s obligations under this Agreement
C. Non-disparagement. TN agrees not to disparage Client to any third party. In this Agreement “Disparage” shall mean to make any negative statement or inference, whether written or oral, to a third party.
D. Use of Customer Information. “Customer Information” means information collected during Private Label Site Transactions, including but not limited to, Customer names, personal information, physical addresses, email addresses and payment information. During the Term and upon termination TN and Ticket Seller own the Customer Information, however Client shall share the right to use Customer Information to market, cross-market or re-market products and/or services to Private Label Site Customers during the Term.
E. Right of Set-Off; Right to Collect Payment. If Client fails to make any payment as required under this Agreement or if Client owes TN amounts as a result of an Overpayment or Customer Refund
TN shall have the right to deduct such amounts from any Commission payment TN owes Client; however, if TN does not owe Client a sufficient Commission payment to collect the full amount due, Client authorizes TN to collect full or partial payment through an ACH withdrawal from Client’s bank account or via a charge to Client’s credit card using the bank account and/or credit card information Client provided to TN when signing up for the Private Label Program. Notwithstanding the foregoing TN shall have the right to collect any amount owed by Client by pursuing all available legal remedies.
VI. OBLIGATIONS AND RIGHTS OF CLIENT
A. Intellectual Property Rights. Client shall retain all right, title and interest in and to all patents, copyrights, inventions, trademarks, trade names, logos, service marks, domain names, content, information and all other materials created or derived by Client and provided to TN.
B. Client Warranties. Client hereby represents and warrants to TN that for the term of this Agreement:
a. Client has all necessary rights, title to, power and authority to enter into this Agreement and to own, operate and use the Private Label Sites, including the relevant domain names;
b. The Private Label Sites and Client shall not (i) violate the CAN-SPAM Act, Canadian Anti-Spam Legislation, EU General Data Protection Regulation, the California Consumer Privacy Act of 2018, or other applicable anti- spam or data privacy regulations or laws or (ii) contain any inappropriate, improper, misleading or unlawful content, reference, material, information, links or banners, defamatory statements, or elements which violate the privacy of third parties or are abusive, offensive or obscene;
c. Client holds and has complied with all permits, licenses and other governmental authorizations necessary for conducting, carrying out and continuing its operations and business;
d. Client is an independent contractor for all purposes, and will be responsible and liable for its own taxes, social contributions and all other tax related matters;
e. Client will act fairly and honestly in all transactions with TN and with others and will maintain the high ethical standards of business conduct required by TN. Discovery of events of a questionable, fraudulent or illegal nature conducted by Client may result in immediate termination of this Agreement. Client also represents and warrants that it shall ensure that its employees and agents shall act in a competent and professional manner and in accordance with industry best standards in performing Client’s obligations under this Agreement;
f. Client will not Disparage TN to its Customers or any third party; and
g. Client shall (i) ensure that Client Parties (defined in Section VI(N)) comply with the terms of this Agreement and (ii) be liable for any failure of Client Parties to comply with the terms of this Agreement.
C. Using and Promoting the TN Exchange. Client shall use only the TN Exchange for listing tickets and agrees to use commercially reasonable efforts to (a) customize the Private Label Site in such a way as to generate and direct as much traffic as possible to the TN Exchange, and (b) promote and market the TN Exchange.
D. Logo and Featured Events. Client must adjust the Private Label Site to use Client’s logo; Client will have control over what events are featured on Private Label Site, based on the event listings found on the TN Exchange (“Featured Events” and “Top Ten Events”).
E. Ownership of Domain Name. At all times during the Agreement and continuing upon termination, the ownership of the domain name Client uses in conjunction with Private Label Program services shall remain with the registered owner. Provided that Client is the registered owner, Client may sell the domain name to a third party provided that Client first gives TN the option to purchase the domain name at the same price and business terms and TN decides not to purchase it.
F. Prohibitions on Content. Client shall not use offensive, indecent, unethical, misleading or illegal content in any area of the Private Label Site that Client controls and for which Client can add, edit, or provide content.
G. Adherence to Private Label Guidelines and Three Strikes Policy; Forwarding Complaints. Client agrees to abide by the Private Label Guidelines and Three Strikes Policy as stated in Exhibit A, attached hereto and incorporated herein, and shall not engage in any of the prohibited activities listed in the Guidelines. If Client engages in such prohibited activities, TN shall take disciplinary action against Client as stated in the Private Label Guidelines. Client shall promptly forward any written or electronic complaints which allege that Client or anyone has violated the Private Label Three Strikes Policy. All complaints should be forwarded to firstname.lastname@example.org for investigation.
I. Email Marketing. TN provides a comprehensive email marketing program for marketing to customers, additional information about the email marketing program is available in the TN Portal or WebAdmin. The TN email marketing program includes regular email communication to Client’s Customers. These types of emails include (but are not limited to) weekly newsletters, event on sales notifications, seasonal and promotional campaigns and Cart Abandon Emails depending on the email program option Client selects. “Cart Abandon Emails” are emails sent to a user who entered their email information into checkout but did not completed a purchase. Details about email marketing program options and services included with each option are specified in Exhibit B.
If Client would like to enroll in the email marketing program Client must contact Client’s Business Development Manager and must abide by the email marketing policies set forth in the TN Portal or WebAdmin. If Client participates in the email marketing program, Client must pay TN a fee for the program (the “Email Marketing Retain Amount.”) The Email Marketing Retain Amount is calculated as a percentage of the Wholesale Ticket Price for every Email Generated Sale. An “Email Generated Sale” is a sale made as a result of an email sent through the email marketing program. Client’s Email Marketing Retain Amount will be determined by TN and will be set forth in Exhibit B. The Email Marketing Retain Amount is in addition to Client’s standard Retain Amount. Alternatively, Client may create and manage Client’s own program, if Client chooses to manage its own program, Client warrants that Client shall abide by all federal and state privacy laws, which shall include but not be limited to CAN-SPAM Act and Canadian Anti-Spam Legislation, and Client shall provide TN with regular reports about email list data and the number of emails sent. In any event, TN reserves the right to send marketing emails to Client’s Customers on Client’s behalf to encourage sales for Client’s Private Label Sites.
J. Non-Solicitation. For the Term and for one (1) year after, Client agrees not to directly or indirectly induce, attempt to influence, advise or encourage any employee, customer or client of TN to terminate his or her relationship with TN.
K. Change of Control. Client shall inform TN and get TN’s approval for any Change of Control. “Change of Control” means (a) a change in the beneficial owner, directly or indirectly, of 51% or more of the outstanding equity interests of Client’s business (b) individuals who constitute the current directors cease for any reason to constitute at least a majority of the board of directors; or (c) Client is acquired by a “Competitor of TN,” for purposes of this Section VI(K) A “Competitor of TN” means any business , or parent company that owns such business, that engages in the business of online ticket sales such as Vivid Seats, SeatGeek, StubHub, Ticketmaster, DTR Software (dba Autoprocessor), Ticket Evolution and any other existing or future similarly situated entity.
L. Private Label Email Address. Client must maintain a current, valid email address to receive Private Label Program announcements. Failure to maintain a current, valid email address or requested removal from the Private Label mailing list shall constitute a material breach of this Agreement.
M. Deactivation. If Client is in good standing, Client may contact its Business Development Manager to deactivate its participation in the Private Label Program or to deactivate some of its Private Label Sites that are operated under the Private Label Program for a period of time. Client’s account shall remain deactivated until Client requests re-activation. All terms of the Agreement shall remain in effect during deactivation.
N. Exclusivity. During the Term of this Agreement, Client or any officers, directors, shareholders, employees of Client or any affiliate or subsidiary of Client (collectively “Client Parties”) and any member of Client’s family (whether connected by blood or by marriage) agree not to directly or indirectly contact, solicit or enter into any contract or commitment with any company that competes directly with TN for provision of services similar to the Private Label Program for any company or website in which any of the Client Parties directly or indirectly received or could receive a financial benefit, and/or has in which Client has an ownership interest.
O. Right of First Refusal. If, within thirty (30) days after the expiration of the Term, Client is considering an agreement with a third party for provision of services similar to those provided by TN hereunder Client must notify TN of the potential third party agreement and give TN the option to negotiate a new agreement with Client (a “Right of First Refusal”) for at least thirty (30) days (the “Negotiation Period.”) If the Parties are unable to come to an agreement during the Negotiation Period Client shall be free to enter into an agreement with the third party. If Client does not execute an agreement with the third party within thirty (30) days of the expiration of the Negotiation Period, TN’s Right of First Refusal shall be renewed and Client must again notify TN of any potential agreements with third parties and repeat the requirements of this provision.
VII. LIMITATION OF LIABILITY
WITH REGARD TO ALL OF THE PRODUCTS AND SERVICES OFFERED AS A PART OF THE PRIVATE LABEL PROGRAM, ALL OF THE PRODUCTS AND SERVICES ARE OFFERED “AS-IS” TN DOES NOT MAKE, AND CLIENT HEREBY EXPRESSLY WAIVES, ALL WARRANTIES EXPRESS OR IMPLIED. EXPRESSLY EXCLUDED ARE ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TN SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY LOSSES OR DAMAGES TO CLIENT AS A RESULT OF TN’S PERFORMANCE UNDER THIS AGREEMENT SHALL BE LIMITED TO THE LESSER OF (1) ACTUAL DAMAGES SUSTAINED OR (2) $10,000.
A. Each Party agrees to preserve, and ensure its directors, officers, employees, agents or representatives preserve, the confidentiality of all the terms of this Agreement and any information of a confidential and proprietary nature that the Party or its directors, officers, employees, agents or representatives (the “Receiving Party”) receives, directly or indirectly, from the other Party (the “Disclosing Party”) or its directors, officers, employees, agents or representatives in the performance of or in connection with this Agreement (collectively, the “Confidential Information.”) “Confidential Information” shall also include all trade secrets, proprietary data and other information (whether written or oral) relating directly or indirectly to the Disclosing Party’s business, including without limitation management, business operations and marketing information; sales and payment information including but not limited to: TN fees, Retain Amounts, Markups, Service Fees, sales results, incentives, conversion rates; Private Label Program Client requirements including but not limited to reporting requirements; economic studies and methods; proprietary forms; financial, tax and accounting information; business strategies, plans, policies and procedures; all information about its employees, contractors, and third-party clients; and any information which the Receiving Party is obligated to treat as confidential, whether or not such information is disclosed pursuant to this Agreement. With respect to TN, Confidential Information shall also include all communications related to the Private Label Program as well as any TN APIs, TN software and any documents related to TN software or TN APIs (including but not limited to integration guides or other documents, whether printed or made electronically available) provided to Client. Confidential Information shall not include any information which (a) is or becomes known or available to the public and did not become so known or available through the breach of this Agreement by either Party, (b) was lawfully in the possession of the Receiving Party before the information was disclosed to it by the Disclosing Party, (c) is developed by the Receiving Party independently of the information disclosed by the Disclosing Party, or (d) is not confidential as agreed to in writing by both Parties.
B. The Receiving Party will: (a) limit disclosure of any Confidential Information to its directors, officers, employees, agents or representatives who have a need to know such Confidential Information in connection with this Agreement, and only for that purpose excepting only a disclosure to the extent required by law or judicial order issued by a court or agency of competent jurisdiction, provided the Receiving Party has given the Disclosing Party prior written notice in order to afford it the opportunity to seek a protective order or other legal remedy to prevent such disclosure at the Disclosing Party’s own expense;(b) advise its directors, officers, employees, agents or representatives of the proprietary nature of the Confidential Information and of the obligations set forth in this Agreement and require such directors, officers, employees, agents or representatives to keep the Confidential Information confidential; (c) keep all Confidential Information strictly confidential by using a reasonable degree of care, but not less than the degree of care used by it in safeguarding its own Confidential Information; and (d) not disclose any Confidential Information received by it to any third parties except as otherwise provided for herein. The Receiving Party shall be responsible for any breach of this Agreement by any of its respective directors, officers, employees, agents or representatives.
C. If the Receiving Party is required to disclose the Confidential Information by law or judicial order issued by a court or agency of competent jurisdiction, the Receiving Party shall first give the Disclosing Party prior written notice in order to afford it the opportunity to seek a protective order or other legal remedy to prevent such disclosure at the Disclosing Party’s own expense. If Client is, despite having given TN prior notice in accordance with the preceding sentence, ultimately required to disclose TN’s Confidential Information Client shall consult with TN to redact portions of the Confidential Information to the fullest extent permitted under any applicable laws, rules and regulations, submit a request that such portions of the Confidential Information receive confidential treatment or otherwise be held in the strictest confidence under applicable laws, rules and regulations and not oppose any motion or action by TN to intervene or otherwise act to protect the confidential status and treatment of the Confidential Information. In the event the disclosure of TN’s Confidential Information is required to prevent Client from being held in contempt or subject to any other penalty, Client may disclose the Confidential Information without prior notice to TN, but Client shall disclose only the portion of the Confidential Information which, in the written opinion of counsel, Client is legally compelled to disclose.
D. The Parties acknowledge that this section is an essential provision of this Agreement and that neither Party would have entered into this Agreement without its inclusion. The Parties also agree that this section is reasonable and appropriate in all respects and that, in the event of its violation or attempted violation, the Disclosing Party will suffer irreparable harm and its remedies at law will be inadequate. In the event of any such violation or attempted violation, the Disclosing Party shall be entitled to a temporary restraining order, temporary and permanent injunctions, specific performance, and any other available equitable relief, without any showing of irreparable harm or damage or the posting of any bond or other security. All rights and remedies of the Disclosing Party under this Agreement are cumulative and in addition to all other rights and remedies to which the Disclosing Party may be entitled from time to time, whether under another agreement, at law or in equity.
A. Client agrees to indemnify, defend and forever hold TN (and its parents, affiliates, subsidiaries or entities under common ownership or control) and all of its respective present and former officers, members, shareholders, directors, employees, representatives, attorneys, insurers and agents, and their successors, heirs and assigns, harmless from and against any and all third-party losses, liabilities, claims, costs, damages and expenses (including, without limitation, fines, forfeitures, reasonable outside attorneys’ fees, disbursements and administrative or court costs) arising directly or indirectly out of or relating to: (a) a breach by Client of this Agreement or of any representation, warranty, covenant or agreement contained herein or (b) any Content on the Client’s site, which results in any claim of trademark or copyright infringement, libel, defamation, breach of confidentiality, false or deceptive advertising or sales practices, deceptive use of URL names, cybersquatting/domain name issues, consumer fraud, injury, damage or harm of any kind to any person or entity, (c) in the case of email marketing using Client’s own managed program as provided for under Section VI.(I.) a third-party claim of data security breach or (d) Client’s misuse of any of the Private Label Program services. Should any of the above-named claims be brought against TN, TN shall (i) promptly notify Client of any matters in respect to which the indemnity may apply and of which TN has knowledge; (ii) give Client the right to control the defense and all negotiations relative to the settlement of any such claim; and (iii) cooperate with Client, at Client’s cost and expense, in the defense or settlement thereof. TN shall have the right to take over the defense, and in such case, TN’s costs shall be borne by TN.
B. TN agrees to indemnify, defend and forever hold Client (and its parents, affiliates, subsidiaries or entities under common ownership or control) and all of its respective present and former officers, members, shareholders, directors, employees, representatives, attorneys, insurers and agents, and their successors, heirs and assigns, harmless from and against any and all third-party losses, liabilities, claims, costs, damages and expenses (including, without limitation, fines, forfeitures, reasonable outside attorneys’ fees, disbursements and administrative or court costs) arising directly or indirectly out of or relating to a breach by TN of this Agreement or of any representation, warranty, covenant or agreement contained herein. Should any above-named claim be brought against Client, Client shall (i) promptly notify TN of any matters in respect to which the indemnity may apply and of which Client has knowledge; (ii) give TN the right to control the defense and all negotiations relative to the settlement of any such claim; and (iii) cooperate with TN, at TN’s cost and expense in the defense or settlement thereof. Client shall have the right to take over the defense, and in such case, Client’s costs shall be borne by Client.
The provisions of Sections I, IV (C ) (D) and (F), V (A) and (E), VI (A), VI (B) (g), VI (J), VI (O), VII, VIII, IX, X and XI as well as TN’s rights to withhold Commission for breach or other reasons pursuant to Section III (C ) and collect payment, Overpayment, and Customer Refunds pursuant to Sections IIB (c); IV (c) and V (E) shall survive the termination of this Agreement for any reason.
XI. GENERAL PROVISIONS
A. Relationship between Parties. The Parties to this Agreement are independent contractors. Neither this Agreement nor the cooperation of the Parties contemplated under this Agreement shall be deemed or construed to create any partnership, joint venture, employment or agency relationship between TN and Client. Neither Party shall in any manner misrepresent or embellish the relationship between the Parties. Outside of the scope of this Agreement, Client shall not otherwise engage in any promotions which name TN or imply any relationship or affiliation between the Parties including, but not limited to, press releases, marketing materials, Internet content such as on social media pages or websites, offline print advertising or marketing campaigns, media kits, screen shots, graphics altered for co-branding or any other format or media.
B. Compliance with Laws. Each Party shall comply with the provisions of all federal, state and local laws and regulations in its performance of this Agreement, including, without limitation, all applicable import/export laws and regulations.
C. Conflict of Terms. The terms of this Agreement shall control over any conflicting terms in any referenced document or other written documentation provided by either Party.
D. Modifications. This Agreement may be modified by TN at any time. In the event of such modification TN will provide Client with written notice by email to Client at the email address Client provided to TN in accordance with Section VI (L). Client shall have thirty (30) days after TN sends notice of the modification to contact its Business Development Manager by email or to contact TN by overnight courier in accordance with Section XI (J) below to object to the modification. If Client fails to provide notice in objection in accordance with the preceding sentence Client will be deemed to have accepted the modifications and shall be bound to them. Notwithstanding the foregoing, in the event TN must make modifications to this Agreement due to mandatory regulatory changes or changes otherwise required by law, TN reserves the right to make such modifications without notice.
E. Governing Law. This Agreement and performance hereunder shall be governed by the laws of the State of Connecticut without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Connecticut to the rights and duties of the Parties.
F. Dispute Resolution; Arbitration. Except for disputes related to payment obligations and intellectual property claims, which shall be submitted to and resolved exclusively by the United States District Court for the District of Connecticut, the Parties consent to the following dispute resolution process: the parties will first make a good faith attempt to resolve the dispute through negotiations between a director, officer or other designated representative of each party with the authority to settle the dispute. If the dispute cannot be settled by such negotiations within fourteen (14) days from the date on which the allegedly aggrieved party notified the other party of the dispute, the allegedly aggrieved Party shall submit the dispute for binding arbitration in Hartford County, Connecticut. Binding arbitration shall be administered in accordance with the mediation and arbitration rules of the American Arbitration Association (“AAA”). The Parties shall both participate in the selection of the sole arbitrator; provided, however, that if the Parties are unable to agree upon an arbitrator within fifteen (15) days after either Party has notified the other of an unreconciled dispute then the arbitrator will be appointed by the AAA. Any award issued through the arbitration is enforceable in any court of competent jurisdiction. The prevailing Party in such proceeding shall be entitled to receive its reasonable attorneys’ fees, expert witness fees and out-of-pocket costs incurred in connection with such proceeding, in addition to any other relief to which it may be entitled.
Provided this Agreement has neither expired nor been terminated while a dispute is pending resolution, performance of this Agreement shall continue. No payment due or payable shall be withheld due to any pending dispute resolution except to the extent that such payment is the subject of such pending dispute.
G. Severability. If any provision or portion of this Agreement shall be deemed unenforceable or invalid for any reason, the Agreement shall be deemed amended to exclude any such provision or portion, and the remainder of this Agreement shall remain in full force and effect.
H. Waiver. No term or condition of this Agreement shall be deemed waived, and no breach shall be deemed excused, unless such waiver or excuse is in writing and is executed by the Party against whom such waiver or excuse is claimed. TN’s failure to insist on the strict performance of any of the terms and conditions stated in this Agreement shall not be deemed a waiver of any rights or remedies that TN may have for any subsequent breach or default.
I. Entire Agreement. This Agreement and the Exhibits, set forth the entire agreement and understanding of the Parties relating to the subject matter herein and merges all prior discussions between them. In the event of any conflict between the body of this Agreement and the Exhibits hereto, the body of this Agreement shall govern.
J. Notices. All notices and other communications to TN hereunder shall be deemed effective when delivered by overnight courier, to TicketNetwork, Inc. Attn: Legal Department at 75 Gerber Road, E., Suite 100, South Windsor, CT 06074, With a mandatory carbon copy to: email@example.com which copy shall NOT of itself constitute notice All notices and other communications to Client hereunder shall be deemed effective when delivered by email to Client at the current email address Client provided to TN in accordance with Section VI (L).
K. Force Majeure. Any delay or failure in the performance by either Party hereunder shall be excused if and to the extent caused by the occurrence of Force Majeure. For purposes of this Agreement, “Force Majeure” shall mean a cause or event that is not reasonably foreseeable or otherwise caused by or under the control of the Party claiming Force Majeure, including acts of God, fires, floods, explosions, riots, wars, hurricane, sabotage terrorism, vandalism, accident, restraint of government, governmental acts (including but not limited to state and federal executive orders,) injunctions, epidemic, pandemic (for avoidance of doubt the government recommendations and prohibitions that arose due to the Covid 19 pandemic of 2020 or similar would qualify as a Force Majeure), labor strikes, delays or interruptions to services provided by cloud, platform, or other software as a service providers (including but, not limited to Amazon Webservices) which may impact the Private Label Program services, and other like events that are beyond the reasonable anticipation and control of the Party affected thereby, despite such Party’s reasonable efforts to prevent, avoid, delay, or mitigate the effect of such acts, events or occurrences, and which events or the effects thereof are not attributable to a Party’s failure to perform its obligations under this Agreement.
L. Assignment. Neither party may assign this Agreement, without consent of the other party, provided however, TN may assign it in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets and Client may assign it in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct Competitor of TN. Any attempt by a party to affect an assignment in breach of this Section shall be void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
TicketNetwork Private Label Policies and Guidelines
Each Client of the TicketNetwork Private Label Program is required to adhere to the following policies and guidelines, so please read them carefully. TicketNetwork reserves the right to take disciplinary action set forth in the Policy Violations and Enforcement/ Disciplinary Action Section against any Client who fails to comply with these policies and guidelines. If Client’s TicketNetwork Private Label Agreement is terminated, Client is no longer be eligible to participate in the Private Label Program.
I. Content Guidelines, Spyware, Spamming, Redirecting and Search Engine Marketing
A. Content Guidelines
Client is required to use the TN provided website terms and conditions on its Private Label Sites. Additionally, Client shall not use offensive, indecent, or illegal content in the Private Label website whether the website is hosted by TicketNetwork or an external company. Examples of such content include the following:
• Pornography, adult or mature content
• Violent content
• Content related to racial intolerance or advocacy against any individual, group or organization
• Excessive profanity
• Hacking/cracking content
• Illicit drugs and drug paraphernalia content
• Any other content that is illegal, promotes illegal activity or infringes on the legal rights of others
Subject to the above, Client is encouraged to be creative in designing the layout and content of their Private Label Site and to focus on their areas of interest, whether sports, theatre, concerts, or other types of events.
B. Malware and Parasitic Software
Client shall not design or utilize any malware, malware includes, but isn’t limited to, spyware, viruses, worms, Trojan horses or any parasitic software, nor enter into a relationship with any provider of malware or parasitic software (as judged by any interference with the operation by design of TicketNetwork).
Client shall refrain from spamming customers or using email marketing to market to Private Label Site visitors unless such marketing complies with the provisions of all U.S. and international anti-spam and privacy laws, including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act, Canadian Anti-Spam Laws, and Federal Trade Commission guidelines and regulations on information privacy. If TicketNetwork becomes aware that Client is not compliance with this provision Client shall be subject to disciplinary actions as stated below.
Client shall not redirect their URL to any TicketNetwork site. Failure to comply with this provision will result in disciplinary action as set forth in the Policy Violations and Enforcement/ Disciplinary Action section.
E. Search Engine Marketing (Pay-Per-Click)
If Client uses Search Engine Marketing or Pay-Per-Click as part of Client’s marketing efforts, Client may not purchase, use or bid for placement on any of the keywords listed below, keywords followed by an asterisk “*” are registered trademarks of TicketNetwork (“Marks”):
• Flex Tickets*
• Ticket Summit*
• Super Ticket Laden
• Shang Shang Piao
• Ticketboard Pro
• Point-of-Sale Software
• Got The Tix
• Get Tickets Pro
• Tickets Academy
• Rad Tickets
• TN Link*
• TN Open
• TN Alerts
• any variations of the words or URLs or misspellings of the keywords or Marks
In addition, Client may not advertise, purchase, use or bid for placement on keywords (including domain names or trademarks) or words that are similar to the domain names or trademarks related to any TicketNetwork affiliate’s site including any other Client in the Private Label Program or any ticket broker that sells tickets on the TN Exchange. In the event that TN or the owner of the domain name or trademark that is similar to a keyword being used by Client informs TN that Client is in violation of this Section Client shall immediately cease any acts that constitute the violation. Client’s failure to comply with this Section shall constitute a material breach of the Agreement.
II. Third Party Intellectual Property
A. Use of Copyrighted or Other Protected Material
Client must not violate any copyrights or intellectual property rights of third parties through the unauthorized use of corporate logos, trademarks, licensed, registered or copyrighted material including images or photos or content. Client may not take or copy content, advertising, images, designs/look and feel, or programming code from any TicketNetwork site or affiliated site including any other Client or any Ticket Seller.
B. Digital Millennium Copyright Act (DMCA) Notices Policy
TicketNetwork has implemented specific guidelines for handling DMCA trademark and copyright infringement claims.
Upon receipt of a letter or other type of communication from a third party alleging trademark or copyright infringement on Client’s site, TicketNetwork shall do the following:
1. A TicketNetwork Private Label Business Development Manager will forward said letter or communication to Client via email upon receipt by TicketNetwork.
2. TicketNetwork will examine Client’s site within 72 hours of forwarding the third party communication in order to confirm the removal of any infringing content.
Should the infringing content not be removed within 72 hours of Client’s receipt of the forwarded third-party communication, Client may be subject to disciplinary action set forth in Section III.
III. Policy Violations and Enforcement
A. Violations of Section I
TicketNetwork reserves the right to take disciplinary action against any Client found to be in violation of the TicketNetwork Private Label Policies and Guidelines. Disciplinary action can include but is not limited to: suspension of Client’s sites or termination from the Private Label program.
B. Violations of Section II
a. Infringing Use of Copyrighted or Other Protected Material
If Client commits an egregious act of copyright, trademark or other intellectual property infringement as determined by TicketNetwork in its sole discretion, TicketNetwork reserves the right to immediately terminate Client’s account from the Private Label Program.
b. Violations of DMCA Notices Policy
If Client fails to comply with the provisions of Section I, TicketNetwork may
take disciplinary action against said Client. Disciplinary action may include the following:
1. formal reprimand for a first offense,
2. suspension of site for a second offense, and
3. termination of site’s participation in TicketNetwork Private Label for a third offense.
IV. Private Label Three Strikes Policy
A. Three Strikes Policy Prohibited Behavior
TicketNetwork has identified certain prohibited behavior that Client shall not undertake through the Private Label Program. If Client engages in any of the prohibited behavior Client shall be subject to the Private Label Three Strikes Policy set forth in this section. Prohibited behavior includes the following:
1. Use of the word “official” in search engine advertisements, actual or display URLs, websites, webpages, or any other forms of advertising.
Example: Cannot say “official seller” unless you ARE the official seller
2. Use of the name of any venue, stadium, arena, theater, performing arts center, center, event, tour, performer, or sports team in URLS in search engine advertisements EXCEPT
a. Name may appear after the top-level domain
b. If the ad clearly indicates the site is a ticket reseller and not affiliated with the venue or entity, the name may appear anywhere in the URL, including the sub domain and the domain name
Example: newyorkyankeesticketsforyou.com – Secure Resale Marketplace!
3. Use of the name of any venue, stadium, arena, theater, performing arts center, center, event, tour, performer, or sports team in search engine advertisements, websites, webpages, or any other content which would lead a reasonable consumer to believe that the webpage or website is owned or maintained by a venue, primary seller, or original ticket issuer. Client can be creative and use descriptors, brand names, business names, content of the offer or other distinguishing factors to put the consumer on notice that the site is a ticket reseller – Client should look at the totality of the advertisement or webpage.
Example: BeyonceOnTourTickets.com – great prices on the secondary market!
4. Use of photos, images, depictions or illustrations of venues, stadiums, arenas, theaters, performing arts centers, centers, events, tours, performers, or sports teams in a way that makes it seem like Client’s webpage is the event’s primary page unless Client has proper licensing to use such photos, images, depictions or illustrations. This does not prevent Client from using names, terms, depictions, etc. to describe the location, give directions to the venue, talk about the event, or describe the tickets being listed.
5. Removal of the disclosure on the ticket listing pages and checkout pages which states: We are a resale marketplace, not the Ticket Seller. Prices are set by third-party sellers and may be above face value. Client must at all times use the correct maps provided by TicketNetwork.
6. Use of search engine advertising for a niche site, unless the website’s initial landing page advertisement clearly and conspicuously makes the disclosure that
a. the site is a resale marketplace, not the Ticket Seller, and
b. prices may be below or above face value.
B. Violations of the Private Label Three Strikes Policy
1st Violation – For a first violation, Client’s access to inventory on the site about which a prohibited behavior complaint is received shall be disabled until Client has certified that corrective actions have been taken on that site and any other of Client’s sites that contain the same violation stated in the complaint.
2nd Violation – For a second violation, Client’s access to inventory on the site in question shall be disabled until corrective action has been taken and for additional two weeks. Should Client fail to take corrective action within seven business days of receiving notice of a complaint, access to inventory on all of Client’s sites shall be disabled until corrective action has been taken, and for an additional 2 weeks.
3rd Violation – For a third violation, Client shall be immediately terminated from the Private Label Program.
V. Changes to these Policies and Guidelines
Please note that these policies and guidelines may change from time to time. TicketNetwork will post any changes on the TN Portal or WebAdmin page and, if the changes are significant, we will provide a more prominent notice (and for certain services, we will provide email notification of changes). It is Client’s responsibility to ensure the email address Client’s Business Development Manager has on file for Client is accurate and up to date.
If Client has any additional questions or concerns about these policies, Client should feel free to contact Client’s Business Development Manager.
BY CLICKING “I AGREE” BELOW YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS ABOVE IF YOU DO NOT AGREE DO NOT CLICK “I AGREE”.