Construction of agreement
This document sets out Ticketbooth’s standard Sellers Terms of Service (“Sellers Terms of Service”), which are incorporated in, and should be read in conjunction with, the Event Build Form and the Ticketing Agreement.
Definitions and Interpretation
The Dictionary in clause 22 defines some of the terms used in this agreement and sets out the rules of interpretation which apply to this agreement
The Seller grants to Ticketbooth the right to supply during the Term the Ticketbooth Services in respect of the Event, on the terms and conditions of this agreement.
This agreement commences on the Commencement Date and ends on the Expiry Date, unless terminated earlier under clause 12.
Ticketbooth must supply to the Seller the Ticketbooth Services in respect of the Event in accordance with this agreement.
General
The Seller is solely responsible for performing, at its cost, its obligations under this clause 5.
Information Relating to Event
The Seller must:
Use and promotion of Ticketbooth Services
The Seller must:
Point Of Sale (“Box Office”)
Ownership and removal of the Ticketbooth Hardware and Software
At all times, the Ticketbooth Hardware and Software remains the sole property of Ticketbooth. At the end of the Event, Ticketbooth may remove the Ticketbooth Hardware and Software in accordance with clause 12.
Use of the Ticketbooth Hardware and Software
Ticketbooth grants to the Seller a non-exclusive right to use the Ticketbooth Software. The Seller must ensure that:
Loss or Damage to Ticketbooth Hardware and Software
If any part of the Ticketbooth Hardware and Software is damaged (other than by Ticketbooth or its Personnel or through fair wear and tear or any latent defect), the Seller must pay to Ticketbooth the cost of restoring or replacing the Ticketbooth Hardware and Software to at least the same condition as it was before the damage occurred. The Seller must apply any money received under any insurance or from any third party in connection with such damage in satisfying its obligations under this clause.
Processing
Payments relating to the service are processed via one of the following options to be agreed between Ticketbooth and the Seller:
Third Party Merchant Accounts
If the Seller elects to use a Third Party Merchant Account as its payment option, it should familiarise itself with the applicable terms of use governing that service.
What Ticketbooth will charge Purchasers
By default, Ticketbooth will charge Purchasers a “booking fee” that covers the “Ticketbooth Platform Fee” charged by Ticketbooth to the Seller under its Ticketing Agreement.
Subject to the clause below (Payment processing fees), Ticketbooth at Seller’s request can add additional charges or a reduced fee which will be added or deducted from ticket receipts accordingly.
Payment processing fees
Except with the prior written consent from Ticketbooth, Seller must not, and must not attempt to, charge Purchasers any additional fee or any surcharge on credit or debit card payments for Tickets. If the Seller breaches this clause, Ticketbooth may at its election suspend or permanently remove the relevant Event for which those fees or surcharges are being charged from the Ticketbooth platform.
Settlement
Subject to clauses 8 and 9, on the Settlement Days in respect of the Event, Ticketbooth must pay to the Seller the proceeds of Tickets to the Event sold through the System and received by Ticketbooth less any amount Ticketbooth is entitled to deduct under clause 8.
Additional Fees Ticketbooth will charge the Seller
Where applicable, Ticketbooth will charge the Seller the Fees set out in Ticketbooth’s fee schedule in the Ticketing Agreement as amended from time to time. These amounts relate to optional services which the Seller may elect to utilise, for example, printing of hard tickets for the Event.
Payment of Ticket proceeds
The Seller has two options in relation to payment of the Ticket proceeds for the Event:
Deduction of Amounts Owing
The Seller irrevocably authorises Ticketbooth to deduct from amounts payable by it to the Seller under this clause 8 or otherwise, and to apply to its own account, in and towards satisfaction of all Charges in respect of the Event and any other amounts which are or may become due by the Seller to Ticketbooth.
Payment by Seller of Other Amounts Owing
The Seller must pay to Ticketbooth all Charges and other amounts owing under this agreement but not deducted under clause 8 within 7 days after Ticketbooth issues an invoice to the Seller in respect of the amount due.
Chargebacks
Any credit card charge backs or reversals received by Ticketbooth will be charged to the Seller, including any fees charged to Ticketbooth by third parties in respect of the charge back.
Third Party claims against Ticketbooth
If, in Ticketbooth’s reasonable opinion, it is likely that a Claim by a party other than the Seller will be made against it arising from the Event (including any cancellation of the Event):
Title in Ticket Proceeds
Property in all proceeds from the sale of all Tickets sold via Ticketbooth Merchant vests legally in Ticketbooth at the time of purchase. Ticketbooth holds all monies payable to the Seller from the proceeds of the sale of Tickets on trust at all times for the Seller.
Default and Consequences of Default
Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Ticketbooth’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
Manner and Currency of Payments
All amounts payable under this agreement must be paid by electronic transfer in New Zealand dollars. Ticketbooth is not obliged to accept any currency in respect of Ticket sales other than New Zealand dollars.
Cancellation
If the Event or part of a series of performances comprising the Event is cancelled or postponed the Seller must notify Ticketbooth immediately to prevent the further sale or issue of Tickets for the cancelled or postponed Event.
If A Refund Is Payable
Unless otherwise set out in this Agreement, the Seller is responsible for refunding purchasers of Tickets in accordance with all applicable laws, industry codes, the Ticketbooth terms and conditions of sale and any other lawful terms and conditions of sale notified to purchasers of Tickets by the Seller during the purchase process. Ticketbooth will not be responsible or liable for any refunds, errors in issuing refunds or lack of refunds by the Seller.
When Ticketbooth is responsible for refunds
Ticketbooth will only be responsible for refunding purchasers of Tickets who purchased their Tickets via the Ticketbooth Service in the limited circumstance where payments have been processed by the Ticketbooth Gateway. After settlement of Ticket proceeds has occurred, Seller shall provide Ticketbooth sufficient funds to make refunds immediately upon notice thereof. Failure to comply with clause 9 shall entitle Ticketbooth to enforce default interest and contract default fees in accordance with clause 8.
Cancellation Fee
The Seller agrees to pay Ticketbooth in respect of the cancellation of the Event the Cancellation Fee which Ticketbooth shall be entitled to retain in all circumstances.
Notification
The Seller warrants to Ticketbooth that:
Each party represents and warrants to each other party:
Indemnity
Ticketbooth excludes, to the maximum extent permitted by law, all express or implied guarantees, warranties, representations or other terms and conditions relating to this agreement or its subject matter, not contained in this agreement. Nothing in this agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition implied or imposed by any legislation which cannot lawfully be excluded or limited. This may include the New Zealand Consumer Law which contains guarantees that protect purchasers of goods and services in certain circumstances.
If any guarantee, condition, term or warranty is implied or imposed in relation to this agreement by applicable law (including the New Zealand Consumer Law) and cannot be excluded, restricted or modified (Non-Excludable Provision), and Ticketbooth is able to limit the Seller’s remedy for a breach of the Non-Excludable Provision, then Ticketbooth’s liability for breach of the Non-Excludable Provision is limited to one or more of the following at Ticketbooth’s option:
The limitation in this clause and the relevant exclusion does not apply in relation to liability:
Subject to Ticketbooth’s obligations under the Non-Excludable Provisions, Ticketbooth’s liability for Consequential Loss is excluded.
For the purposes of clause 11, Consequential Loss means any special, indirect, consequential or punitive loss or damage. For clarity, this does not include loss or damage which may fairly and reasonably be considered to arise naturally from the usual course of things, from the breach or other act or omission in question (the remedy for which loss or damage is limited as described in clause 11).
Ticketbooth cannot guarantee that the Site will be error-free, uninterrupted, nor that it will provide specific results from use of the Site or any content, search or link on it. The Site and its content are delivered on an ‘as-is’ and ‘as-available’ basis.
Ticketbooth may terminate this Agreement and the Seller’s use of the Ticketbooth Service immediately if:
Effect of Termination
Termination of this agreement is without prejudice to accrued rights and obligations of a party and any provisions which are intended by their nature to survive termination.
Removal of Ticketbooth Hardware and Software
At the end of the Event, the Seller must permit Ticketbooth to enter the Box Office to remove all Ticketbooth Hardware and Software, Ticket stock, advertising and other property of Ticketbooth.
Force Majeure
Each party is excused from performing its obligations under this agreement to the extent that it is prevented, hindered or delayed in performing such obligations by reason of any cause beyond its reasonable control which it cannot overcome by reasonable measures.
Notice
As soon as practicable after an event referred to in this clause occurs, the party affected must notify the other party of the nature and extent of the event.
Assignment and other dealings
Except as permitted by clause 14, neither party may assign, novate, encumber or otherwise deal with its rights or obligations under this agreement without the prior written consent of the other party, such consent not to be unreasonably withheld.
Subcontracting and delegation
Ticketbooth may subcontract or delegate any of its rights or obligations under this agreement in its discretion, provided that such subcontracting or delegation will not relieve Ticketbooth of its obligations under this agreement.
Information confidential
All information which a party obtains or of which it is or becomes aware relating to the management, profitability, operation and the business dealings, arrangements and understandings between either of the parties and each other or either of the parties and Venues or other persons in respect of the Event must be held and maintained by such a party in strict confidence.
Information remains confidential
Each party must use its best endeavours to ensure that the information set out in clause 15 remains confidential and is not transmitted or disclosed to any person except to the extent necessary to enable each party to perform and observe the obligations and conditions arising from this agreement and that upon the Expiry Date or the earlier termination of this agreement each party must deliver up to the other or cause to be destroyed, the information in that party’s possession provided by the other party.
Disclosure of information
The parties shall not disclose any information of the other party which is confidential to any person without the consent of the other parties (which shall not be unreasonably withheld) provided always that such obligation shall not apply to:
GST Inclusive
Unless otherwise specified, all amounts expressed in this agreement are inclusive of GST. GST will be payable at the same time as the consideration to which it relates.
Tax invoices
Ticketbooth will issue tax invoices in respect of any supplies made by Ticketbooth pursuant to this agreement.
Tax
Subject to clause 16, each party must pay any Tax incurred by that party which arises from signing, delivering and performing this agreement.
Costs and expenses
Each party must pay its own costs and expenses of negotiating, preparing, signing, delivering, stamping, registering and performing this agreement and any other agreement or document entered into or signed under this agreement.
Payment of Tax
Seller is solely responsible for determining which, if any, sales, use, amusement, value added, goods and services, consumption, excise and other taxes, duties, levies and charges (collectively, “Taxes”) apply to the use of the Services and in doing so agree that it is their sole responsibility to, and that they will, collect, remit and report the correct amounts of all such Taxes to the applicable governmental authorities. If Seller does collect Taxes on the Services, those Taxes will be treated like Additional Event Fees and Ticketbooth will pay such amounts to you at the same time as the underlying Ticket Receipts.
Ticketbooth cannot give you legal or tax advice, so please be sure to check with your own tax advisor about any applicable Taxes. In the event that a governmental authority requires Ticketoboth to pay any Taxes attributable to your use of the Services, you agree to promptly and fully reimburse Ticketoboth for such Taxes upon demand and all costs, penalties, interest and expenses related thereto.
Additionally, in the event that a governmental authority requires Ticketbooth to provide proof that Taxes attributable to your use of the Services were collected, remitted, and reported to the respective government authority, you agree to promptly furnish the requested proof upon Ticketbooth’s request within five (5) days of the request.
The Seller appoints Ticketbooth as its agent to sell Tickets for the Event through the Network. The Seller acknowledges that:
The Seller acknowledges that this agreement is an arms-length commercial contract which sets out in full Ticketbooth’s duties and obligations as agent. The Seller irrevocably and unconditionally releases Ticketbooth from any further duties or obligations which may be implied at law. This agreement does not create a fiduciary relationship or a relationship of employment or Sellership between the parties or an agency in which Ticketbooth is the principal.
Ticketbooth and Seller must act in good faith in respect of this agreement. Neither Ticketbooth nor the Seller may do anything which will circumvent the operation of this agreement or deprive either Ticketbooth or the Seller of its rights under this agreement.
By entering into this Agreement, the Seller agrees to the terms of Ticketbooth’s Privacy Policy. Ticketbooth may collect and use the personal information of Purchasers of Tickets in accordance with its Privacy Policy in place from time to time.
Ticketbooth may collect and use the personal information of purchasers of Tickets. Each party agrees to comply at all times with all relevant laws with respect to the collection and use of such information.
Payment Card Industry Data Security
The Seller acknowledges that Ticketbooth is required to comply with the Payment Card Industry Data Security Standard (Version 3.0, released November 2013, as amended from time to time) (PCI Data Security Standards).
The Seller will use reasonable commercial endeavours to adhere to and be compliant with the PCI Data Security Standards.
The Seller acknowledges that it is responsible for the security of cardholder data of Customers that the Seller possesses or otherwise stores, processes or transmits on behalf of Ticketbooth, or to the extent that they could impact the security of the Customer’s Cardholder Data Environment (as defined by the PCI Data Security Standards).
Notices
Any notice or other communication given under this agreement including, but not limited to, a request, demand, consent or approval, to or by a party to this agreement: Must be in legible writing and in English and emailed to [email protected]
Invalidity
If a provision of this agreement, or a right or remedy of a party under this agreement is invalid or unenforceable in a particular jurisdiction:
Amendments and Waivers
Cumulative Rights
The rights and remedies of a party under this agreement do not exclude any other right or remedy provided by law.
Non-Merger
No provision of this agreement merges on completion or termination of this agreement.
Continuing indemnities and survival of indemnities
Each indemnity contained in this agreement is a continuing obligation despite a settlement of account or the occurrence of any other thing, and remains fully effective until all money owing, contingently or otherwise, under an indemnity has been paid in full. Each indemnity is an additional, separate and independent obligation and no one indemnity limits the generality of another indemnity. Each indemnity survives termination of this agreement.
Further assurances
Each party must do all things necessary to give full effect to this agreement and the transactions contemplated by this agreement.
Entire agreement
This agreement supersedes all previous agreements about its subject matter and embodies the entire agreement between the parties. The Seller acknowledges that no representations or warranties in connection with the Ticketbooth Services have been made by Ticketbooth or anyone on behalf of Ticketbooth other than as set out in this agreement.
Specific performance
The Seller acknowledges that monetary damages alone would not be adequate compensation to Ticketbooth for the Seller’s breach of its obligations under this agreement and that specific performance of those obligations is an appropriate remedy, particularly having regard to the unique nature of the rights granted to Ticketbooth under this agreement.
Third party rights
Only Ticketbooth and the Seller has or is intended to have a right or remedy under this agreement or obtain a benefit under it.
Legal Advice
The parties acknowledge that they have received legal advice about this agreement or have had the opportunity of receiving legal advice about this agreement.
Counterparts
This agreement may be signed in any number of counterparts and all those counterparts together make one instrument.
Governing law and Jurisdiction
The laws that govern this agreement. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of New South Wales and waives any claim or objection based on absence of jurisdiction or inconvenient forum or immunity in relation to this agreement in any jurisdiction for any reason.s
Debiting your account
In the event that the net activity in your account on a day is negative, or Ticketbooth needs you to fund your account for any other reason relating to the Ticketbooth Seller Agreement, you authorise and request Ticketbooth to debit your account by using credit card direct debit.
Inquiries, Errors, and Disputes
If you believe there has been an error in debiting your account, you should notify us. You can also notify your bank. If there has been an error, we’ll arrange with your bank to adjust your account and we’ll notify you of the amount of the adjustment. If we don’t find an error, we’ll respond to your query with evidence of the correctness of the transfer.
In these Sellers Terms of Service:
Adverse publicity means the reporting of Ticketbooth during “the term” in local, regional or national media (including but not limited to radio, television, newspapers, magazines or the internet) or any governmental publication in which Ticketbooth or it’s products are specifically named in a negative fashion.
Box Office means the area at a Venue used to stock and sell Tickets.
Business Day means a day on which banks are open for business in Sydney excluding a Saturday, Sunday or public holiday.
Cancellation Fee means the amount Ticketbooth may retain upon cancellation of an Event, as set out in the Ticketing Agreement, which will not exceed the total amount of “booking fees” that Ticketbooth would have received under the Ticketing Agreement had the Event not been cancelled. If no Cancellation Fee is set out in the Ticketing Agreement, the Cancellation Fee will be the total amount of “booking fees” that Ticketbooth would have received under the Ticketing Agreement had the Event not been cancelled.
Claim means any demand, action, proceeding, cost or expense.
Commencement Date means the date specified in the Event Build Form.
Complimentary Tickets means complimentary Tickets, house Tickets and promoter’s Tickets and other “mass pull” Tickets (as those terms are commonly understood in the entertainment industry and ticketing business) for the Event.
Consignment Tickets means Tickets to the Event that are sold or distributed other than by Ticketbooth under this agreement.
Customer means a person or persons that makes a purchase of event tickets and/or products on the Ticketbooth platform for sellers events.
Event means the events described in the Event Build Form to be held at the Venue(s).
Expiry Date means the date specified in the Ticketing Agreement.
Force Majeure unforeseeable circumstances that prevent someone from fulfilling a contract.
GST means goods and services tax payable under the A New Tax System (Goods and Services Tax) Act 1999 and the related transition and imposition Acts (GST Law).
Insolvency Event means in the case of a corporation any of the following:
Loss means any loss, cost, expense or liability.
Network means all facilities, systems, channels, contractors and agents which Ticketbooth, in its discretion, uses from time to time to advertise, sell, distribute or otherwise supply Tickets (howsoever owned, operated or branded), and which may include the internet, call centres and sales agents.
Seller means the person or entity specified in the Event Build Form.
Personnel means, in respect of a party, its employees, agents, contractors and invitees.
Purchaser means a person who purchases or obtains a Ticket to the Seller’s Event through the Site or the Service;
Review Date means the Expiry Date of this agreement.
Settlement Day means, in respect of the Event, the days specified as the “Settlement Days” in the Ticketing Agreement.
Site means the website at www.ticketbooth.co.nz or events.ticketbooth.co.nz
System means the computerised booking system used by Ticketbooth from time to time for the sale or other issue of Tickets to Event.
Tax means a tax, levy, charge, impost, fee, deduction, withholding or duty of any nature, including stamp and transaction duty which is imposed or collected by a government agency and includes, but is not limited to, any interest, fine, penalty, charge, fee or other amount imposed in addition to those amounts but excluding any GST.
Term means the period specified in clause 3.
Ticket means any ticket or voucher (whether paper based, electronic or otherwise) for the admission of persons to the Event, or to the Venue.
Ticketing Agreement means the agreement between Ticketbooth and Seller accompanying these Sellers Terms of Services and to which these Sellers Terms of Service are incorporated.
Ticketbooth Hardware and Software means the hardware and software (if any) to be installed by Ticketbooth at the Venue and listed in the Ticketing Agreement.
Ticketbooth Services means:
Third Party Merchant Account has the meaning given to that term in clause 10 of these Sellers Terms of Service.
Trademark means, in respect of a party, each trademark which the party from time to time owns is licensed to use.
Venue means each place specified in the Event Build Form