SIT BOX OFFICE GENERAL TERMS OF USE
These Sports Illustrated Tickets (“SIT”) GENERAL TERMS OF USE (the “Terms and Conditions”) shall govern, and shall be expressly incorporated into the SIT BOX OFFICE CLIENT AGREEMENT, or such other agreement as SIT may enter into with its Clients from time to time (defined in these Terms of Use as the “Client Contract”). The Client Contract and these Terms of Use are referred to together herein as the “Agreement”. These Terms of Use shall be effective as of January 1, 2024. Capitalized terms used but not defined herein shall have the meanings as described to such terms in the Client Contract.
1. MERCHANT PROCESSOR:
a.
Client as Merchant of Record: Client may opt to be the Merchant of Record on their Ticket Sales, requiring them to have their own Merchant Account to process transactions with one of the following supported Merchant Providers: Stripe, Inc., Auth.net, or Square. As such, Client must obtain a Merchant Account with either Stripe, Inc. Auth.net or Square. At any time during the Term when Stripe, Inc., Auth.net, Square or one of their affiliates (collectively, “Merchant Provider”) is serving as the clients merchant processor, prior to listing any Event on the Service, Client shall enter into a separate, definitive written Merchant Services Agreement (a “Merchant Agreement”) with the Merchant Provider pursuant to which the Merchant Provider will operate a merchant processor account on Client’s behalf for use in connection with the Services (a “Merchant Account”). SIT shall not be obligated to provide any of the Services to Client hereunder unless and until such Merchant Agreement has been duly executed by Client and the Merchant Provider and evidence reasonable to SIT of such Merchant Agreement has been provided to SIT. Stripe, Inc. is SIT recommended Merchant Processor. The following terms and conditions shall apply at all times during the Term when Merchant Provider is serving as the merchant processor:
I.
The Merchant Provider will process and collect all payments from End Users, and Client shall maintain a Merchant Account for this purpose. Client acknowledges and agrees that SIT shall have no responsibility or obligation to remit any amounts to Client. As between SIT and Client, Client shall be solely responsible for any and all refunds, chargebacks, related charges, or fees due for any of Client's Events. SIT shall have no liability for any claims, losses or damages arising out of or in connection with any such refunds, chargebacks, related charges, or fees. Notwithstanding the foregoing, Client understands and acknowledges that payment of refunds to the End User on a prompt basis (i.e., within fourteen (14) days of cancellation) is essential to maintaining the goodwill of both Client’s and SIT’s brand. As such, if Client has not paid refunds to End Users within fourteen (14) days of an Event cancellation, SIT reserves the right, in its sole discretion, to pay such refunds on Client’s behalf, and Client shall reimburse such amounts to SIT, plus a 15% service fee. In the event that SIT pays any refunds on Client’s behalf, SIT shall invoice Client for the amount to cover the refunds owed by Client yet paid by SIT, plus a 15% service fee, and Client shall pay such invoice within seven (7) days of receipt of invoice. Nothing in this Section shall relieve Client of any indemnity obligations under the Agreement.
II.
The Client is obligated to remit all Service Fees to SIT in real-time as End Users purchase tickets and agrees that SIT will be paid all Service Fees via SIT’s GoCardless Payment Integration. Prior to listing tickets to any Event using the Services, SIT will onboard the Client onto SIT GoCardless system. However, if GoCardlessfails to remit to SIT any Service Fees, or any other amounts that are due and payable to SIT under the Agreement, Client shall pay all such amounts to SIT within seven (7) days after written notice and demand for payment has been provided by SIT. Notwithstanding any remittance by GoCardless of amounts owed to SIT hereunder, nothing herein shall relieve Client’s obligations to pay to SIT all Service Fees, and other amounts due and payable to SIT hereunder. Client shall be primarily liable for payment of all such amounts and for performance of all of Client’s obligations under the Agreement.
III.
As security for the payment and performance of all of Client’s now existing or hereinafter arising or incurred obligations under the Agreement or any other obligation to SIT, Client hereby grants to SIT a lien on, and security interest in and to, all of Client’s now existing or hereafter arising right, title and/or interest in or to all amounts held in Client’s Merchant Account in connection with the Services provided under the Agreement. Client agrees to duly execute and deliver to SIT such instruments and documents as may be required to perfect and otherwise give effect to the lien and security interest granted to SIT under the Agreement.
b.
SIT as Merchant of Record: Client may opt for SIT to be the Merchant of Record on the Clients Ticket Sales. At any time during the Term when SIT is serving as the merchant processor, SIT will process and collect all payments from End Users and maintain a merchant account for this purpose. While SIT acts as the Merchant of Record, the Client is still required to have a Stripe Account for payment processing. The following terms and conditions shall apply at all times during the Term when SIT is serving as the Merchant of Record:
I.
Payment Schedule. Automatically, at the time of a completed Ticket Sale with an End User, the net ticket proceeds, calculated as gross ticket sales, less all Service Fees, are transferred from SIT Stripe Account to the Clients Stripe Account.
II.
Financial Information; Credit Report Authorization; Verification of Information. No later than within ten (10) days of the Effective Date or the date on which or the date on which it is determined that SIT shall serve as merchant processor, as applicable, Client shall provide SIT with financial statements, balance sheets, and bank statements sufficient to enable SIT to evaluate Client’s creditworthiness. Client shall provide updated or then-current financial information to SIT throughout the Term when and as requested by SIT. Client further authorizes SIT, directly or through third parties, to make any inquiries or take any actions SIT considers necessary to validate Client’s identity, evaluate Client’s creditworthiness, and verify information that Client has provided to SIT. Client authorizes SIT to obtain financial and credit information, such as pulling Client’s personal credit report, or the credit report(s) for Client’s directors, officers, and principals. By completing Client’s application to become a SIT customer, Client is providing SIT with written instructions and authorization in accordance with the Fair Credit Reporting Act to obtain such financial information or credit reports. In the event that SIT is unsuccessful, in its sole discretion, in receiving satisfactory information for it to verify Client’s identity or to determine that Client is creditworthy, SIT reserves the right to immediately: (A) terminate the Agreement with notice to Client; (B) cease providing Client with access to the Service until such time SIT is able to verify Client’s identity or determine that Client is creditworthy; (C) unilaterally amend the payment terms of the Agreement such that all payments will be made to Client only after an Event occurs in accordance with Section 1(b)(i)(A) above and not in advance of any Event in accordance Section 1(b)(i)(B); or (D) unilaterally change the merchant processor to the Merchant Provider, require Client to comply with Section 1(a) and cease providing Client with access to the Service until such time that the Merchant Provider is set up as merchant processor.
III.
Actions by SIT. If SIT believes, in its sole discretion, that there is an unacceptable degree of risk associated with Client, Client’s business, Client’s use of the Service, any Event, or any Client ticket sale transaction, or that Client has breached the terms of the Agreement, SIT may take various actions to avoid liability. The actions SIT may take include, but are not limited to, terminating, suspending or limiting Client’s ability to use the Service, removing Event(s) from the Service, refusing to process any ticket sale transaction, reversing a ticket sale transaction, holding Client’s payments, or unilaterally amending the payment terms of the Agreement such that all payments will be made to Client only after an Event occurs in accordance with Section 1(b)(i)(A) above and not in advance of any Event in accordance Section 1(b)(i)(B), or unilaterally changing the merchant processor to the Clients Merchant Provider and requiring Client to comply with Section 1(a) and ceasing to provide Client with access to the Service until such time that the Clients Merchant Provider is set up as merchant processor. If possible, SIT will provide Client with advance notice of SIT’s actions and resolution steps. However, advance notice will not be provided if there is an immediate need to take actions such as a security threat, potential fraud, or illegal activity.
IV.
Security Interest. As security for the payment and performance of all of Client’s now existing or hereinafter arising or incurred obligations under the Agreement or any other obligation to SIT, Client grant to SIT a lien on, and security interest in and to, all of Client’s now existing or hereafter arising right, title and/or interest in, to or under the Agreement, at SIT’s option all amounts owed to SIT under the Agreement. Client agrees to duly execute and deliver to SIT such instruments and documents as may be required to perfect and otherwise give effect to the lien and security interest granted to SIT under the Agreement.
V.
Letter of Credit. If SIT believes, in its sole discretion, that there is an unacceptable degree of risk associated with Client, Client’s business, Client’s use of the Service, any Event, or any Client ticket sale transaction, Client shall duly cause to be delivered to SIT a standby, unconditional, irrevocable letter of credit (the “Letter of Credit”) in the amount required by SIT (the "Letter of Credit Amount"), by an acceptable bank and in a form and content satisfactory to SIT in its sole discretion and within five (5) business days of SIT's request. If at any time after delivery of the Letter of Credit SIT determines that the Letter of Credit Amount does not cover SIT’s potential risk related to Client’s use of the Service or the processing of any Client ticket sale transaction hereunder or any other contract entered into by Client and SIT, then Client agrees to cause the Letter of Credit to be amended or to secure an additional Letter of Credit, within five (5) business days from SIT’s written request, in an amount to cover such exposure. Client shall cause the Letter of Credit to be continuously maintained in effect until SIT consents otherwise and shall furnish SIT with a new or extended Letter of Credit at least sixty (60) days prior to the expiration of a Letter of Credit and ensure there is no gap in coverage. It shall be a default under the Agreement if a new or extended Letter of Credit is not provided. SIT shall be entitled to draw the full amount of the Letter of Credit in such event. SIT may at any time make one or more draws from the Letter of Credit (without notice to Client) up to the amount owed to SIT hereunder or under any other contract between SIT (or any of its affiliates) and Client. SIT may, but shall not be required to, apply, or offset such proceeds of the Letter of Credit to cure such amounts owed to SIT by Client. All fees and/or costs, including without limitation attorneys' fees and costs, incurred related to the Letter of Credit shall be paid solely by Client. Client authorizes SIT, at its election, to automatically invoice Client via ACH or credit card for such fees and costs. In addition to all of SIT’s other rights and remedies under the Agreement or applicable law, SIT shall have the right to immediately terminate the Agreement in the event Client fails (a) to furnish SIT with a Letter of Credit within the timeframes stated in this Section; or (b) to maintain the Letter of Credit as provided herein. In addition, the delivery of the Letter of Credit shall not act as a cure or waiver of any now existing or hereafter arising breaches or defaults under the Agreement.
c.
Change in Merchant of Record. During the Term, the Parties are permitted to mutually agree in writing to change who is the Merchant of Record, so long as the requirements of Section 1(a) or Section 1(b), as applicable, are implemented prior to the listing of any Event on the Service with the changed Merchant of Record.
2. EXCLUSIVITY:
a.
Client hereby grants to SIT, and SIT accepts from Client, the right during the Term to be the exclusive ticket seller and provider, as Client's agent, of all tickets for each and every Event via any and all means and methods, including tickets sold at door, via call center, online, computer, IVR, outlets, television, clubs, auctions, presales, upsells, and through mobile, for all Events for all Groups. This exclusive right shall include all methods, means, and technologies for ticket sales, which may be existing now or at any time in the future. As expressly agreed in writing by the Parties, Client shall ensure that the entire sellable capacity for every Event shall be made available for distribution and sale through the Service. Further, for purposes of the Agreement, and this Section 2 in particular, Client shall include all current and future sibling companies of Client. It shall be considered a material breach of the Agreement for Client to engage in a separate venture or company to avoid the exclusivity of the Client-SIT relationship.
b.
During the Term of the Agreement, Client shall not, directly or indirectly: (i) use, sponsor, market, promote, authorize, or permit the use of any third-party (not including any affiliate of SIT) that promotes, engages in, or facilitates the sale, resale, or issuance of tickets; or (ii) otherwise offer for sale or sell tickets outside of the Service.
c.
If, as of the effective date of termination or expiration of the Agreement, Client owes any outstanding Service Fees, or any other amounts due and payable to SIT under the Agreement, the rights granted to SIT and Client’s obligations under Sections 2(a) and 2(b) shall survive such termination or expiration until such time as all Service Fees and all other amounts due and payable to SIT have been paid in full.
d.
Exceptions to exclusivity may be made in cases where Client is unable to sell tickets through SIT due to pre- existing venue contracts or other contractual limitations, but only with express written approval by SIT. In such cases Client will make best efforts to sell an allocation of tickets through SIT.
3. RESPONSIBILITIES:
a.
SIT Responsibilities: During the Term, SIT will provide those services as detailed in the Client Contract.
b.
Client Responsibilities: SIT's responsibilities are conditioned upon full compliance of Client with the responsibilities under the Agreement, which include, but are not limited to, the following:
I.
Single Price/Itemized Price: The option to set a single price for each ticket sale type that is inclusive of Commission fees for ticket sale (“All-In Price”) or the ability to break out all fees for the End User. These fees include, but are not limited to, the Service Fees (as defined in the Client Contract), all taxes (as detailed in Section 5(f)), and other fees from any third-parties). The All-In Price, less all such fees, may be referred to as the “Base Price”.
II.
Accuracy of Listings: Maintaining accurate and complete date, pricing, inventory, details, and venue information for all Events listed by Client on SIT.
III.
Modification of Listings: Timely updates in the Service and notification to SIT representatives of any change, rescheduling, and/or cancellation of Events. SIT reserves the right to request that Client modify any listings, and further reserves the right to remove any listing in the event such listings are not compliant with the Agreement, or in SIT’s reasonable discretion, the listing is offensive, fraudulent, or otherwise damaging to SIT’s reputation.
IV.
Refund Policies: Maintaining refund policies that are compliant with applicable law and granting End Users refunds to the extent required by applicable law. Client shall use all commercially available means and courteous customer service to grant End Users full refunds: (a) in the event of an Event cancellation or over sale; and (b) to all requests made from End Users in the case of an Event rescheduling. In the event SIT learns that Client’s refund policies are not compliant with applicable law, SIT may, but is not obligated to, take immediate action without notice to Client to ensure compliance, at Customer’s sole cost and expense, including without limitation the right to pay refunds on Client’s behalf. Any such action taken by SIT shall not relieve Client of its obligations hereunder, and Client shall reimburse SIT for any amounts refunded by SIT on Client’s behalf and any and all other costs or expenses incurred by SIT in connection with any such action. For the avoidance of doubt: (1) SIT shall have no obligation to determine whether Client’s refund policies comply with applicable law; (2) SIT’s adherence to any of Client’s refund policies shall not in any way be considered an endorsement or approval by SIT of Client’s refund policies; and (3) SIT shall have no liability for any claims, losses or damages arising out of or in connection with Client’s refund policies and/or any refunds made by SIT on Client’s behalf.
V.
Clear and Fair Policies: Full disclosure of all rules that govern entrance and conduct at Events and Venues, including standards for wardrobe, security and search, rules related to End User recording and public display of Events, and behavior that might warrant ejection from the Venue.
VI.
Honoring SIT Policies: Understanding and adhering to all SIT policies including its most current privacy policy at https://www.sitickets.com/privacy.
VII.
Security: Client and SIT will use best efforts to maintain a secure network and operational environments, including ensuring that all employees using Services have separate logins, do not share passwords, and regularly keep their computers or access devices free of viruses, Trojan horses, key logging, and other forms of malware. Both parties shall promptly provide notification in writing upon becoming aware of any actual or suspected breach of its security systems (a “Security Breach”) that may have impacted or may impact the Services provided by SIT under this Agreement.
VIII.
Best Practices: Understanding best practices of SIT product use as taught by SIT during the SIT training sessions, and using best efforts to implement these best practices. This includes hiring properly trained administrative staff who can independently access the Box Office Portal, as well as box office and will-call staff who can efficiently check in End Users using the SIT POS application and check photographic identification.
IX.
Merchant Account: At any time during the Term when Client is serving as the Merchant of Record, (A) entering into a Merchant Agreement for a Merchant Account, (B) complying with all of the terms and conditions of the Merchant Agreement, and (C) as between SIT and Client, handling any and all refunds, chargebacks, related charges, or fees due for any Event.
X.
Advertising: When appropriate, including the SIT logo in compliance with SIT's brand guidelines, its website address ( https://www.sitickets.com), and where appropriate, a hyperlink to the special Client URL at SIT (for example, https://www.sitickets.com/event-name), in all forms of advertising, mailings, and websites related to event promotion Client creates and/or controls.
4. SERVICE LEVELS:
a.
SIT will use commercially reasonable efforts to make the Service available twenty four (24) hours a day, seven (7) days a week, except for: (i) planned downtime (of which SIT shall give at least twenty four (24) hours’ notice via the Service and which SIT shall schedule to the extent reasonably practicable during low volume times); (ii) any unavailability caused by circumstances beyond SIT's reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, or other labor problems (other than those involving SIT employees), computer, telecommunications, Internet service provider, or hosting facility failures or delays involving hardware, software, or power systems not within SIT's possession or reasonable control, and denial of service attacks; and (ii) any outage determined to be a result of Client’s breach of the Agreement or other acts or omissions of Client.
b.
If SIT fails to meet the service level in this Section, SIT will determine at its sole discretion an appropriate remedy on a case-by-case basis.
5. COMMERCIAL TERMS: During the term SIT and Client will abide by the following commercial terms:
a.
Service Fees and Payment Terms
Service Fees and Payment Terms shall be as described in the Client Contract. Any conflict between the terms in Section 1 and/or Section 5 of these Terms and Conditions and the Client Contract shall be resolved in favor of the terms of the Client Contract.
Service Fees and Payment Terms shall be as described in the Client Contract. Any conflict between the terms in Section 1 and/or Section 5 of these Terms and Conditions and the Client Contract shall be resolved in favor of the terms of the Client Contract.
b.
Refunds, Overages, and Late Payments
If Client is not the Merchant of Record, SIT will process refunds within fourteen (14) days of the order cancellation date.. SIT shall invoice the Client for all amounts refunded to the End User, less the Service Fees if the Service Fees have already been remitted to SIT. t. If Client maintains, or is required to maintain, a Merchant Account, SIT shall have no responsibility to process refunds, and as between Client and SIT, Client shall have all liability with respect to any refunds.
If Client is not the Merchant of Record, SIT will process refunds within fourteen (14) days of the order cancellation date.. SIT shall invoice the Client for all amounts refunded to the End User, less the Service Fees if the Service Fees have already been remitted to SIT. t. If Client maintains, or is required to maintain, a Merchant Account, SIT shall have no responsibility to process refunds, and as between Client and SIT, Client shall have all liability with respect to any refunds.
6. BANK CARD COMPLIANCE:
a.
Authorization: Client authorizes SIT to accept any credit or debit card or electronic payment method approved by SIT for purchase by End Users. SIT shall absorb all processing fees charged by the companies providing the credit, debit, bank cards, or electronic payment mechanisms (collectively, "Card Companies") when SIT is the Merchant of Record.
b.
Compliance: SIT and Client shall comply at all times with the Card Companies’ rules, regulations, releases, interpretations, and other requirements (whether contractual or otherwise) imposed or adopted by the Card Companies. Neither SIT nor Client will extract or demand any special agreement, condition, fee, or security from an End User cardholder in connection with their mechanism of payment unless approved in advance by the applicable Card Company or federal or state law.
c.
End User Disputes: SIT and Client shall promptly notify one another and the applicable Card Company if either becomes aware of an End User's purchase dispute.
7. CHARGEBACKS: If Client is not the Merchant of Record, SIT will assist Clients with chargebacks as follows:
a.
Any credit card chargebacks initiated by the purchasing customer including the processor’s chargeback fees, will be charged to Client. SIT is authorized to Invoice the client these costs.SIT may provide Client with a summary of chargeback activity.
b.
Dispute: SIT, at its expense, will be responsible for directly dealing with the respective merchant bank to resolve the chargeback in dispute and will use reasonable efforts to resolve all disputes in a manner favorable to Client.
c.
If Client is the Merchant of Record, SIT shall have no responsibilities with respect to chargebacks, and as between Client and SIT, Client shall have all liability with respect to chargebacks.
d.
Regardless of who is Merchant of Record, both parties agree to work together and will provide information to the other party that each might have in order to resolve any dispute in the favor of the Merchant.
8. Taxes:
a.
If Client is the Merchant of Record, Client acknowledges that it assumes all responsibility for the collection of the required taxes due at all levels, including but not limited to municipal, city, state, and federal levels of government as a result of, or in connection with, any Event (“Event Taxes”). Client agrees that payment of any Event Taxes will be made to the appropriate authority in a timely fashion.
b.
In the event that SIT is required to pay the Client’s Event Taxes for any reason, Client shall promptly reimburse SIT for any and all such taxes paid by SIT, including penalties and interest assessed with respect thereto, and shall also promptly reimburse SIT for any and all expenses (including reasonable attorneys’ fees) or damages that result from the failure by Client to properly calculate and timely remit Event Taxes assessed on all amounts received by Client under the Agreement, to timely file all related returns or reports, or to timely reimburse SIT for any and all such taxes, interest, and penalties as provided above.
9. SPONSORSHIPS: Should SIT and Client agree upon a sponsorship program, an Appendix containing program terms will be attached to the Client Contract and incorporated therein.
10 GRANT OF RIGHTS:
a.
By SIT:
I.
Access to Service. Subject to the terms and conditions contained in the Agreement, SIT hereby grants to Client a non-exclusive, non-transferable right to access the features and functions of the Service live as of the date of the Agreement and as agreed upon by the Parties. Client will use the Service only as contemplated by the Agreement and will not, and will not authorize any user to, use the Service to: (A) transmit through or post on the Service unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, or obscene material or material harmful to minors; (B) transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (C) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (D) attempt to gain unauthorized access to the Service, computer systems or networks related to the Service. Client will provide to SIT information and other assistance as necessary to enable SIT to establish accounts to be used by Client’s authorized users and Client will be solely responsible for all activities that occur under these accounts.
II.
Software License. Subject to the terms and conditions contained in the Agreement, SIT hereby grants to Client a limited, non-exclusive, non-transferable, non-sublicenseable right and license to use the any software necessary to interface with the Service (e.g., POS Application) in object code form and solely in connection with the Service. Client may not use such software for any other purpose. Any such software will be considered part of the Service.
III.
Ownership. Client acknowledges that SIT and its licensors own all intellectual property rights in and to the Service and all components thereof (apart from any Client-provided materials therein), as well as all work product, developments, inventions, technology, or materials provided under the Agreement. SIT expressly reserves all rights not expressly granted to Client in the Agreement. Client will not engage in any act or omission that would impair SIT’s and/or its licensors’ intellectual property rights in the Service, and any other materials, information, processes, or subject matter proprietary to SIT. Client will not and will not permit any user or other third-party to: (a) decompile, disassemble, reverse engineer, or otherwise attempt to obtain or perceive the source code from which any software component of the Service are compiled or interpreted, and Client acknowledges that nothing in the Agreement will be construed to grant Client any right to obtain or use such code; or (b) create any derivative product from any of the Service. Without limiting the foregoing, SIT, in its sole discretion, may utilize, all comments and suggestions, whether written or oral, furnished by Client or its users to SIT in connection with use or access of the Service (all such reports, comments and suggestions, collectively, “Feedback”). Client hereby grants SIT a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate the Feedback into SIT products and services.
b.
By Client: Client agrees to grant a limited, non-exclusive license to SIT to use, reformat, publicly display, publicly perform, create derivative works of, and reproduce all documents, designs, logos, trademarks, text, animation, photographs, audio, and videos and other material provided by Client to SIT for the purpose of marketing and promotion. Client retains ownership of all such materials provided by Client.
c.
Trademark License: Subject to the terms and conditions of the Agreement, each Party (“Licensor”) grants the other Party (“Licensee”) a limited, non-exclusive, non-transferable, royalty-free right and license to use Licensor’s logos, trademarks, and trade names (“Marks”) solely for the purposes contemplated in the Agreement. Licensee will use Licensor’s Marks in conformance with any trademark usage policy Licensor may communicate to Licensee from time to time. Any Licensee use will be subject to the approval of Licensor, such approval not to be unreasonably withheld or delayed, with the understanding that any substantially similar use will not require additional approval, but will be subject to the provisions of this Section. Licensee’s use of Licensor’s Marks will be subject to Licensor’s quality control procedures. Licensee will not use Licensor’s Marks in a manner that Licensor reasonably believes dilutes, tarnishes, or blurs the value of Licensor’s Marks. Licensee acknowledges that Licensee’s use of Licensor’s Marks will not create in Licensee, nor will Licensee represent it has, any right, title, or interest in or to Licensor’s Marks other than the license granted by Licensor above. Licensee will not challenge the validity of or attempt to register any of Licensor’s Marks, nor will it adopt any derivative or confusingly similar names, brand, or marks or create any combination marks with Licensor’s Marks. Licensee acknowledges Licensor’s ownership and exclusive right to use Licensor’s Marks and agrees that all goodwill arising as a result of Licensee’s use of Licensor’s Marks will inure solely to the benefit of Licensor.
d.
Client Data: Following any completed End User purchase for a Client Event and to the extent permitted by law and SIT’s privacy policy, SIT will make available through the Service any customer data for End Users who grant by the terms of the SIT Privacy Agreement (collectively the “End User Data”). Client agrees to use the End User Data only in compliance with all applicable laws and administrative rulings and in accordance its own posted privacy policies. Client acknowledges that End Users may be located in jurisdictions other than Client’s, and the laws governing End User Data in each and every jurisdiction may apply. Client shall also include in any email communications that it makes based on the End User Data a mechanism to provide the recipient with the right to "opt-out" from receiving further communications from such Party, and such Party shall honor such opt-out preferences. This grant is non-exclusive and limited to the Term of the Agreement and does not foreclose any of SIT’s rights to retain title and interest in all End User Data. For the avoidance of doubt, nothing herein prohibits SIT from providing End User Data to other third parties.
e.
Unauthorized Use: SIT and Client agree to immediately notify the other of any unauthorized use of the other Party's proprietary rights or End User Data of which either becomes aware.
11. CONFIDENTIALITY:
a.
Definition: By virtue of the Agreement, the Parties may have access to each other’s Confidential Information. “Confidential Information,” as used in the Agreement, means any written, machine- reproducible, and/or visual materials that are clearly labeled as proprietary, confidential, or with words of similar meaning, and all information that ought reasonable to be considered as confidential based on the nature of the information or the circumstances surrounding disclosure. SIT Confidential Information includes, without limitation, those aspects of the Service that are not otherwise available to authorized users or which are publicly available, and any software whether in source or executable code, nonpublic financial information, pricing, business plans, personalized marketing materials, and variable pricing outcomes. Client Confidential Information includes, without limitation, and all information related to ticket sales volumes, pricing and pricing strategies, non-public events, strategic plans, or business plans.
b.
Protecting Confidential Information: The terms and conditions of the Agreement shall be deemed the Confidential Information of both Parties and neither Party shall disclose such information except to such Party’s advisors, auditors, accountants, attorneys, board committees, investors (and prospective investors), and prospective acquirers as have a reasonable need to know such information, provided that any such third-parties shall, before they may access such information, either (A) execute a binding agreement to keep such information confidential, or (B) be subject to a professional obligation to maintain the confidentiality of such information. The Parties agree that they shall not disclose, give, sell, or otherwise transfer or make available the other Party’s Confidential Information to any third- party except as otherwise permitted under the Agreement; will not use each other’s Confidential Information except as required for the performance of its obligations under the Agreement; will limit the dissemination of the other Party’s Confidential Information within its own organization, or to its consultants, agents, subcontractors, vendors, or representatives, to such individuals whose duties justify the need to know such Confidential Information, and then only provided that reasonable efforts have been made to ensure that there is a clear understanding by such individuals of their obligation to maintain the confidential and proprietary nature of the Confidential Information and to restrict its use solely to the purposes specified herein; and not make any records or copies of the other Party’s Confidential Information, except as permitted by either the Agreement or by the other Party and to notify the other Party immediately upon discovery of any loss, unauthorized disclosure, or use of Confidential Information, or any other breach of this Section, and provide reasonable assistance to the other Party to prevent further unauthorized use or disclosure.
c.
Exclusions: Confidential Information shall not include information that: (A) is or becomes publicly known through no act or omission of the receiving party; (B) was in the receiving party’s lawful possession prior to the disclosure; (C) is rightfully disclosed to the receiving party by a third-party without restriction on disclosure; or (D) is independently developed by the receiving party, which independent development can be shown by written evidence.
d.
Required Disclosure: Notwithstanding anything in the foregoing to the contrary, a receiving party may disclose disclosing party’s Confidential Information pursuant to any governmental, judicial, or administrative order, subpoena, discovery request, regulatory request, or similar method, provided that the receiving party as promptly as possible and as legally permissible notifies the disclosing party in writing of such demand for disclosure so that the disclosing party may seek to make such disclosure subject to a protective order or other appropriate remedy to preserve the confidentiality of the Confidential Information. The receiving party agrees that it shall not oppose and shall cooperate with efforts by the disclosing party with respect to any such request for a protective order or other relief.
e.
Use and Nondisclosure: Each Party shall take all reasonable steps to ensure that the other’s Confidential Information is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement, but in no event will either Party use less effort to protect the Confidential Information of the other Party than it uses to protect its own Confidential Information of like importance. Each Party will ensure that any agents or subcontractors that are permitted to access any of the other’s Confidential Information are legally bound to comply with the obligations set forth herein.
12. LIVE EVENTS:
a.
Live Events: If Client utilizes the Services to list, create, produce, organize, or operate an Event that takes place in a physical venue and is conducted in-person (whether by SIT or in connection with a third-party venue, event organizer, or other service provider), such Event shall be referred to herein as a “Live Event.” For purposes of this Section, “Live Content” means information, names, images, pictures, logos, documents, materials, photographs, animation, video, audio, music, text, and applets related to the Live Event.
b.
Client Obligations for Live Events: Client shall be solely and fully responsible for organizing, operating, and producing Live Events, and for sourcing, producing, and providing any and all Live Content to be used during Live Events. Client shall be fully liable for any Live Event and any and all Live Content, and assumes all risks related thereto, including, without limitation, any third party’s reliance on the accuracy of Live Content, or any claims relating to intellectual property or other legal rights. Client shall obtain all rights, licenses, consents, and authority (including without limitation all copyrights) necessary to legally use, transfer, and license the Live Events and any and all Live Content. SIT shall have no such responsibility, liability, or obligations with respect to any Live Event or Live Content.
c.
Live Event Insurance: For each Live Event hereunder, Client shall maintain in full force and effect, general liability insurance and any other relevant insurance (such as liquor liability insurance) consistent with market standards (the “Live Event Insurance”). The Live Event Insurance policies will be written by a licensed insurance company with an A.M. Best’s Rating of no less than A-VIII (or comparable rating). Client will provide, upon request by SIT, copies of the relevant policies and certificates of insurance evidencing the Live Event Insurance. Client will name SIT as an additional insured on each Live Event Insurance policy (which status will require at least thirty (30) days prior written notice to SIT of any cancellation and/or material change to such policy) and will deliver certificate(s) of insurance and endorsement(s) satisfactory to SIT evidencing such status a reasonable time before the date of the applicable Live Event. In the event that Client fails to comply with the provisions of this Section, then, in addition to such other remedies that SIT may have, SIT may require Client to reimburse SIT for SIT’s reasonable costs of obtaining SIT’s own insurance policies.
d.
License; Representation, and Warranties: By listing a Live Event on the Services, or utilizing the Services to create, produce, organize, or operate a Live Event, or providing to SIT, or otherwise posting or uploading to the SIT Platform (as defined below), a Live Event and/or any Live Content, Client (x) grants SIT a nonexclusive license to publicly or privately distribute, display, perform, publish, post, transmit, upload, import, access, possess, create derivative works of, reformat, copy, reproduce, broadcast, store, or otherwise use in any manner (collectively, “Use” or “Utilize,” as applicable) the Live Event and any and all such Live Content, and (y) represents and warrants to SIT that:
I.
Client either (A) owns all rights in and to the Live Event and all Live Content or (B) otherwise has (and will continue to have) the full power, title, licenses, consents, and authority (including without limitation all copyrights) necessary to legally Use, transfer, and license such Live Event and Live Content.
II.
Client has (and will maintain) the full power, title, licenses, consents, and authority to allow SIT and the Services to access any websites, web pages, and/or other online services to which Client directs SIT or any End User for the purpose of utilizing, viewing, or attending the Live Event and/or any Live Content;
III.
The Live Event and all Live Content are (and will continue to be) true, current, accurate, non-infringing upon any third-party rights, and in no way unlawful for Client to use, in each jurisdiction in which End Users reside, or for SIT and/or End Users to use, view, or attend in connection with the Live Event; and
IV.
Client has obtained all consents and permissions required under all applicable laws regarding the use of any personal information and/or image or likeness of any person, entity, or property which is part of the Live Event or any Live Content, and Client will adhere to all laws applicable thereto.
e.
Threats of Infringement: SIT shall not be responsible for preventing or prohibiting any third party from recording, copying, duplicating, re-broadcasting, publicly displaying or exhibiting, distributing, downloading, importing, accessing, or otherwise using any Live Event or any Live Content or otherwise infringing upon Client’s, or some other third party’s, intellectual property rights in or to any Live Event or Live Content. SIT shall have no liability for any claims, losses, or damages arising out of or in connection with any such third-party actions or access by any person.
f.
Live Venue: For any Live Event, the “Venue” (as defined in the Client Contract) shall be deemed to be the physical location or locations where the Live Event takes place (e.g., conference centers, arenas, auditoriums, etc.).
g.
Advertising: Client agrees that SIT may enable advertising at or around any Live Event on the SIT Platform, including in connection with the display of the Live Content or other information.
h.
End User Data and Submissions: Any customer data collected from an End User that attends a Live Event on SIT’s Platform shall be “End User Data” for purposes of the Agreement. If a Live Event permits the hosting, sharing, posting, and publishing by End Users of End User content, information, names, images, pictures, logos, documents, materials, photographs, animation, video, audio, music, text, and applets (collectively, “End User Submissions”), as between SIT and Client, Client shall be solely responsible for all End User Submissions and their consequences. Client understands and acknowledges that the author of each End User Submission is solely responsible for its content and that SIT has no responsibility for or liability related to any End User Submission. SIT shall not be responsible for, or have any liability for claims, losses, or damages arising out of or in connection with, or related to any End User Submissions (whether posted on the SIT Platform or at, on, or in connection with any Live Event or otherwise). SIT reserves the right to access, read, preserve, and disclose any End User Submission or any other information that SIT obtains in connection with the use of any Live Event or Live Content as SIT reasonably believes is necessary to: (i) satisfy any applicable law, regulation, legal process, subpoena, or governmental request; (ii) enforce the Agreement, including investigation of potential violations of it; (iii) detect, prevent, or otherwise address fraud, security, or technical issues; (iv) respond to End User support requests; or (v) protect the rights, property, or safety of SIT, its users, or the public. Subject to the terms of the Agreement and SIT’s privacy policy, by permitting End User Submissions at, on, or in connection with any Live Event, Client hereby grants SIT a worldwide, irrevocable, non-exclusive, royalty-free license to utilize the End User Submissions for the provision of the Services, in connection w ith the use of any Live Event and Live Content, and for marketing the Services.
i.
Prohibited Content: Client agrees that it will not send, display, post, submit, publish, or transmit any Live Event or Live Content that: (i) is unlawful, immoral, libelous, tortuous, infringing, defamatory, threatening, vulgar, obscene, harassing, hateful, racially or ethnically offensive, includes material harmful to minors, encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise dishonest, inaccurate, malicious, or fraudulent; (ii) promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking; (iii) is unfair or deceptive under the consumer protection laws of any jurisdiction; (iv) is copyrighted, protected by trade secret, or otherwise subject to third-party proprietary rights, including privacy and publicity rights, unless Client is the owner of such rights; (v) creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security, or interferes with an investigation by law enforcement; (vi) impersonates another person; (vii) involves theft or terrorism; (viii) constitutes an unauthorized commercial communication; (ix) contains the contact information or any personally identifiable information of any third party unless Client has first obtained the express and informed consent of said third party to include their contact information and/or personal information; (x) transmits or contains software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; and/or (xi) breaches the Agreement.
j.
Removal of Content: It is the policy of SIT to respect the legitimate rights of copyright owners, and SIT will respond to clear notices of alleged copyright infringement in accordance with the procedures set forth in the Digital Millennium Copyright Act, 17 U.S.C. Section 512. SIT reserves the right to request that Client modify any Live Event and further reserves the right to remove any Live Events that are not compliant with the Agreement, or in SIT’s reasonable discretion, are offensive, fraudulent, or otherwise damaging to SIT’s reputation.
13. TERMINATION:
a.
Termination by SIT: SIT may terminate the Agreement prior to the end of the Term in the following instances:
I.
Material breach by Client which remains uncured for more than thirty (30) days after written notice and demand for cure has been delivered by SIT;
II.
In the event that Client files a petition for bankruptcy, is adjudicated bankrupt, has an action instituted by another party seeking its dissolution or liquidation, is placed in receivership or admits insolvency;
III.
For any reason with thirty (30) days’ notice to Client; and
IV.
At any time during the Term when a Merchant Provider is serving as the merchant processor, immediately (A) if Client fails to begin the Merchant Provider registration process within seven (7) business days of the Effective Date or the date on which it is determined that the Merchant Provider shall serve as merchant processor, as applicable, (B) if Client fails to be approved by Merchant Provider to enter into a Merchant Provider Agreement within thirty (30) days of the Effective Date or the date on which it is determined that Merchant Provider shall serve as merchant processor, as applicable, (C) upon expiration or termination of Client’s Merchant Agreement for any reason, or (D) if SIT believes, in its sole discretion, that there is an unacceptable degree of risk associated with use of the current merchant processor.
V.
At any time during the Term when SIT is serving as the merchant processor, immediately (A) if SIT is unsuccessful, in its sole discretion, in receiving satisfactory information for it to verify Client’s identity or to determine that Client is creditworthy, (B) if SIT believes, in its sole discretion, that there is an unacceptable degree of risk associated with use of SIT as the merchant processor, Client, Client’s business, Client’s use of the Service, any Event, or any Client ticket sale transaction, or that Client has breached the terms of the Agreement, or (C) if Client fails to furnish SIT with a Letter of Credit in accordance with Section 1(b)(vii) or to maintain the Letter of Credit as provided herein.
b.
Termination by Client: Client may terminate the Agreement prior to the end of the Term in the following instances:
I.
Material breach by SIT which remains uncured for more than thirty (30) days after written notice and demand for cure has been delivered by Client; and
II.
In the event that SIT files a petition for bankruptcy, is adjudicated a bankrupt, has an action instituted by another party seeking its dissolution or liquidation, is placed in receivership or admits insolvency;
c.
Post-Termination Obligations: Upon termination of the Agreement, the Parties shall comply with all of the following:
I.
Access. Client’s access to the Box Office Portal will be revoked thirty (30) days after termination of the Agreement, or in the event of an uncured breach by Client, immediately upon termination. SIT will provide at Client’s request a final sales report of all transactions on SIT that include the disclosure of the relevant End User Data that is permitted under SIT's Privacy Policy.
II.
Phase Out Period. Unless a material breach by Client requires immediate termination, if there are any Events listed in the Agreement or any appendix thereto which are scheduled to occur within forty-five (45) days after the effective date of termination, then the Agreement shall remain in effect, as to those Events only, until (A) such Events have occurred, or (B) Client has made adequate alternate arrangements for such Events and notifies SIT in writing, at which point SIT will no longer sell tickets for those Events or, if any such Events are Virtual Events, no longer Virtually Use such Virtual Events on the Box Office Platform, but SIT may to continue to support End Users who previously purchased tickets through the Service. Client shall remain liable to SIT and to End Users for all obligations owed under the Agreement relating to Events and ticketing pursuant to Sections 4 through 6 and Client will honor all tickets sold to SIT prior to the transition
14. INDEMNIFICATION AND CANCELLATION INSURANCE:
a.
Indemnification by SIT: Except to the degree caused by Client, SIT will defend, indemnify, and hold harmless Client and its parent company, affiliates, managers, successors, assigns, officers, directors, agents, members, subcontractors, and employees, from and against any and all third-party action, suit, or claim (including reasonable attorney's fees and court costs) alleging that the Service provided by SIT infringes the intellectual property rights of a third- party.
Except to the degree caused by Client, SIT will defend, indemnify, and hold harmless Client from and against any and all third-party action, suit, or claim (including reasonable attorney's fees and court costs) for damages, whether to persons or to property, caused by SIT and/or its employees, agents, guests, or subcontractors, arising from or in connection with the Service at the Event or SIT’s material breach of any terms or representations contained in the Agreement.
Except to the degree caused by Client, SIT will defend, indemnify, and hold harmless Client from and against any and all third-party action, suit, or claim (including reasonable attorney's fees and court costs) for damages, whether to persons or to property, caused by SIT and/or its employees, agents, guests, or subcontractors, arising from or in connection with the Service at the Event or SIT’s material breach of any terms or representations contained in the Agreement.
b.
SIT Right to Cure: If any portion of the Service becomes, or in SIT’s opinion is likely to become, the subject of a claim of infringement, SIT may at its option:
Modify such infringing intellectual property so as to render it non-infringing without any material loss of functionality.
Modify such infringing intellectual property so as to render it non-infringing without any material loss of functionality.
I.
Obtain a license for the use of the in fringing element of such property in favor of Client
II.
Obtain the right to use an element which performs the same function as the infringing portion without any material loss of functionality; or
III.
If none of the above are reasonably available, terminate the Agreement and make its commercially reasonable best effort to correct the situation with minimal effect upon the operations of Client.
The indemnification obligations in Section 9(a) do not apply with respect to any licensed material that: (i) was modified after delivery by SIT to Client or created in whole or in part by any third-party; (ii) combined with other products, processes, or materials where the alleged infringement relates to such combination; (iii) where Client continues allegedly infringing activity after being notified thereof and SIT has offered to provide modifications that would have avoided the alleged infringement; (iv) where Client's use of such licensed material is not strictly in accordance with the license provisions of the Agreement; or (v) is based off materials supplied by Client, including its Marks.
c.
Indemnification by Client: Except to the degree caused by SIT, Client will defend, indemnify, and hold harmless SIT and its successors, assigns, officers, directors, agents, members, subcontractors, and employees, from and against any and all third-party action, suit, claim (including reasonable attorney's fees and court costs), or other liabilities arising from or related to:
I.
Client's breach or alleged breach of any provision of the Agreement or any representation or warranty made by Client therein; any breach or violation by Client of any applicable law, statute, ordinance, or regulation;
II.
Any act or omission of Client whatsoever in its operation of the Service, including but not limited to Client's pricing, description of the Event or Venue or Venue policies, refund policies, cancellation of event, or refusal to honor valid tickets;
III.
SIT's use of intellectual property provided to SIT by Client (including without limitation any Virtual Use of any Virtual Content), provided that SIT used such intellectual property pursuant to the Agreement and as instructed by Client;
IV.
Any Virtual Event, Virtual Content, or End User Submissions;
V.
Any activities at an Event that are beyond the scope of the Agreement; or
VI.
Any and all claims by End Users that are outside the scope of errors in the SIT Service.
d.
Procedure: The indemnified party will (i) cooperate reasonably with the indemnifying party at the indemnifying party's expense, and (ii) allow the indemnifying party to control such defense or settlement of any claim if it so chooses. The indemnified party will have the right to participate in any defense or settlement or any claim at its sole expense. The indemnifying party shall not reach a settlement or intend to bind the indemnified party without priority consent from the indemnified party, which shall not be unreasonably withheld or delayed.
e.
Client Cancellation Insurance:
I.
If Client is not the Merchant of Record,, in the event Client cancels an entire Event, SIT’s sole obligation shall be to refund any purchase price (less the Service Fees) paid by End Users within fourteen (14) days of the Event cancellation. In the event Client partially cancels an Event, SIT shall have the option, in its sole discretion, relative to refunds, to adopt Client’s decision on how much, if any, refund will be offered to End Users. If Client is the Merchant of Record, SIT shall have no responsibility if Client cancels an Event in whole or in part, and as between Client and SIT, Client shall have all liability with respect to any such refunds.
II.
For each Event hereunder, Client shall maintain in full force and effect, event cancellation insurance consistent with market standards (the “Cancellation Insurance”). The Cancellation Insurance policies will be written by a licensed insurance company with an A.M. Best’s Rating of no less than A-VIII (or comparable rating). Client will provide, upon request by SIT, copies of the relevant policies and certificates of insurance evidencing the Cancellation Insurance. Client will name SIT as a loss payee on each Cancellation Insurance policy (which status will require at least thirty (30) days prior written notice to SIT of any cancellation and/or material change to such policy), and will deliver certificate(s) of insurance and endorsement(s) satisfactory to SIT evidencing such status a reasonable time before the date of the applicable Event. In the event that Client fails to comply with the provisions of this Section, then, in addition to such other remedies that SIT may have, SIT may require Client to reimburse SIT for SIT’s reasonable costs of obtaining SIT’s own Cancellation Insurance policies.
III.
Client understands and acknowledges that payment to the End User on a prompt basis (i.e. within fourteen (14) days of cancellation) is essential to maintaining the goodwill of both Client and SIT’s brand. As such, regardless of whether insurance, cancellation or otherwise, is collectable for the cancellation of the Event, Client warrants to SIT that it shall pay SIT or End Users, as applicable, within fourteen (14) days of the Event cancellation, or be in breach of the Agreement. Nothing in this Section shall relieve Client of any indemnity obligations under the Agreement.
15. LIMITATION OF LIABILITY:
a.
SIT shall have no liability for any claims, losses, or damage to the extent they result from errors or omissions in any information provided to SIT by Client through the Service, or any actions taken by SIT at Client's direction. SIT shall have no liability for any claims, losses or damages arising out of or in connection with Client's or any End User’s use of any third-party products, services, software, or web sites that are accessed via links provided by Client. SIT shall have no liability for any claims, losses or damages arising out of or in connection with any Virtual Event, Virtual Content, or End User Submissions.
b.
Except as expressly provided in the agreement, each party makes no representations or warranties of any kind whatsoever, express or implied, in connection with the agreement or the services, including the implied warranties of merchantability, accuracy of any information provided, fitness for a particular purpose, or non-infringement. Without limiting the foregoing, sit disclaims any warranty that the services will be error free or uninterrupted or that all errors will be corrected in less than forty-eight (48) hours each party further disclaims any and all warranties arising from course of dealing or usage of trade. No advice or information, whether oral or written, obtained from sit or elsewhere shall create any warranty not expressly stated in the agreement. Some jurisdictions do not allow the exclusion of certain warranties in certain circumstances. Accordingly, some of the limitations set forth above may not apply.
c.
Except with respect to nonpayment of fees owed hereunder or breach of Section 2 or Section 5 (collectively, “Exempt Claims”), in no event shall either Party be liable to the other for any consequential, incidental, indirect, punitive, or special damages, the possibility of such damages, including without limitation damages arising out of or in connection with any loss of profit, interruption of service, or the loss of business or anticipatory profits, even if such Party has been apprised of the likelihood of such damages. Except with respect to Exempt Claims, in no event will either Party’s aggregate liability under the Agreement exceed the total dollar amount received by SIT from Client's Events during the six (6)-month period prior to the event giving rise to the liability. For the avoidance of doubt, this Section neither is intended to limit, nor shall it limit, the Parties' respective obligations under Section 5. It is agreed and understood that neither SIT nor Client guarantees or will guarantee that any minimum or fixed number of tickets will be offered or sold through the Service in the aggregate or for any specific Event.
16. REPRESENTATIONS AND WARRANTIES: Each Party hereby represents and warrants (i) that it is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of the Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (iii) that the Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
17. GENERAL
a.
Resolution of Disputes; Arbitration:All disputes or claims shall be addressed in the following order:
I.
The Parties shall attempt to resolve the dispute promptly through negotiation between themselves, and shall ensure that individuals with authority to enter into a binding resolution of the dispute participate;
II.
Arbitration Clause.
1.
Agreement to Arbitrate: The parties agree that any dispute, controversy, or claim arising out of or relating to this contract, or the breach, termination, or invalidity thereof, shall be settled by arbitration in accordance with the rules of the American Arbitration Association (AAA).
2.
Rules and Procedures: The arbitration shall be conducted in accordance with the AAA Commercial Arbitration Rules, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
3.
Location: The place of arbitration shall be Washington, D.C.
4.
Governing Law: The arbitration proceedings and the enforcement of the arbitration award shall be governed by the laws of the State of Delaware, without regard to its conflict of laws principles.
5.
Confidentiality: The parties agree that the arbitration proceedings, including any documents submitted and the award, shall be kept confidential and shall not be disclosed to any third party without the prior written consent of the other party, except as required by law or to enforce any arbitration award.
6.
Costs and Fees: The costs of the arbitration, including the arbitrator's fees, shall be borne equally by the parties, unless the arbitrator(s) determine otherwise as part of the award. Each party shall bear its own attorney's fees and costs.
7.
Interim Measures: Either party may apply to any court of competent jurisdiction for interim or provisional measures, including a temporary restraining order or preliminary injunction, to protect its rights or property pending the selection of the arbitrator(s) or pending the arbitrator(s)’ determination of the merits of the dispute.
8.
Waiver of Jury Trial: The parties hereby waive their right to a jury trial in any litigation arising out of or related to this contract.
9.
Finality and Binding Effect: The arbitrator’s decision shall be final and binding on the parties, and there shall be no appeal from the arbitrator’s decision except on the grounds of fraud or gross misconduct by the arbitrator(s).
b.
Governing Law: The Agreement shall be governed and construed in accordance with the laws of the State of Delaware without regard to its conflicts of law principles.
c.
Survival: The provisions of Sections 2(c)(Exclusivity), 6(a)(iii) (Ownership), 6(f) (Confidentiality), 6(c) (Post-Termination Obligations), 9 (Indemnification), 10 (Limitation of Liability) and 12 (General) shall survive the expiration or termination of the Agreement.
d.
Assignment: The Agreement, including but not limited to any right, interest, benefit, or obligations under the Agreement, may not be assigned by Client without prior consent of SIT, which consent shall not be unreasonably withheld. Any assignment in violation of the foregoing will be null and void.
e.
Notices: All notices provided for herein shall be considered effective and shall be deemed to have been duly given or made (i) when personally delivered; (ii) within twenty-four (24) hours of receipt via national overnight courier with tracking, addressed to the addresses of the Parties stated above; or (iii) within twenty-four (24) hours of delivery via e-mail, if the recipient acknowledges receipt of the email.
f.
Entire Agreement and No Modification: The Agreement (consisting on the Client Contract and these Terms and Conditions) sets forth the entire agreement and understanding of the Parties relating to the subject matter herein and merges and supersedes all prior discussions, negotiations, understandings, or agreements between them. The Client Contract shall not be changed, modified, or amended in any respect without the mutual written consent of both Client and SIT. For the avoidance of doubt, SIT has the right to unilaterally amend these Terms of Use, and these Terms of Use are subject to change at SIT’s sole and absolute discretion, and if so, the revised Terms of Use will apply to Client. The most current version can be found at https://boxoffice.sitickets.com/terms.
g.
Severability: If any provision or the application of any provision of the Agreement is determined by any court of competent jurisdiction to be invalid or unenforceable, then such provision will (i) be interpreted by the court to the maximum extent to which it is valid and enforceable; and (ii) be reformed without further action by the Parties hereto and only to the extent necessary to make such provision or the application of the provision valid and enforceable; and (iii) the remainder of the Agreement shall continue in full force and effect without being impaired or invalidated in any way.
h.
Disclaimer of Agency: Nothing in the Agreement shall be construed to create a joint venture or partnership, or interpreted to create co-ownership or co-authorship between the Parties. Neither Party shall have any right, power, or authority to enter into any agreement for or on behalf of, or to incur any obligation or liability for, or to otherwise bind, the other Party.
i.
Force Majeure: With the exception of any obligation to make payments to the other Party hereunder, neither Party will be held responsible nor be deemed to have materially breached the Agreement to the extent performance of its obligations or attempts to cure any breach are delayed or prevented by reason of fire, flood, explosion, war, strike, embargo, governmental action or failure to act, the act of any civil or military authority, act of God, inability to secure material or transportation facilities, acts or omissions of carriers, power outages, computer failures, or by any other causes beyond its control whether or not similar to the foregoing (collectively a “Force Majeure Event”). Notwithstanding the foregoing, either Party shall have the right to terminate the Agreement in the event that any Force Majeure Event affects the other Party’s performance for more than thirty (30) days or longer.
j.
No Waiver: The failure of either Party to insist upon or enforce strict performance by the other Party of any provision of the Agreement or to exercise any right under the Agreement shall not (i) waive any other provisions, (ii) be construed as a waiver, or (iii) be construed as a relinquishment or waiver of any subsequent breach or default.
k.
Counterparts; Headings: The Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement. The headings in the Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of the Agreement. Any reference to “including” will mean “including, but not limited to” and any reference to “days” will be to calendar days unless otherwise note.
l.
Publicity: Following receipt of written permission from Client, SIT may publicly refer to Client, including on SIT’s website and in sales presentations as a SIT customer and may use Client’s logo for such purposes and as necessary to fulfill its obligations herein.
m.
Agreement Binding: The Agreement shall be binding upon and inure to the benefit of each of the Parties and their respective heirs, successors, administrators, and assigns.
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