Terms & ConditionsEffective May 19, 2016
THIS TICKETING SERVICES AGREEMENT
"Agreement" is made by and between Thomas Holden Holdings, with its principal place of business at Kalwaryjska street 4/8, 30-509 Kraków , Poland, the company registration numbers. NIP6793108823, REGON 360959206. Thomas Holden Holding (“THH”) is the sole and only owner of Festiment ("Company," "Festiment," "We," "Us," or "Our" ), and You ……………………... (an "Organization," or "You" or "Your"). Festiment is in the business of providing reservations, tickets, memberships, certificates, admissions, and/or confirmations that allow the ticket holder or purchaser (each, a "Patron") attendance at, access to, or participation in, events, venues and other activities (each, an "Event"). You, as an Event organizer, are authorized to provide access to such Events. The parties, intending to be legally bound, hereby agree as follows: By signing this agreement you represent that you have read and understand this agreement and expressly agree to and consent to be bound by all of the terms and conditions contained therein.
1. OUR SERVICES AND RESPONSIBILITIES
Festiment shall provide the following services ("Services") under this Agreement: (i) accept and process on-line orders for tickets to Your Event and, if You choose the "Full Service" payment processing option described in Section 2.1 below, process all credit card and other payments to said Event on Your behalf; and (iii) provide an accounting to You of Our fees and charges for each ticket sold by Us. If You choose the "Self-Service" payment processing option as described in Section 2.2 below, payments are all processed by You through Your accounts and payment methods, in cash or bank transfer, or other third party payment application (collectively, "Facilitated Payment Modes" or "FPM"); or, if You choose the "Full Service" payment processing option, payments are processed through the Festiment payment processing gateway (the "Gateway").
2. FEES, CHARGES, AND PAYMENT METHODS
There are two types of payment processing options and organizations may elect when using the Services: (1) "Self Service", which consists of collecting event registration fees using FPMs; and (2) "Full Service", which requires the use of the Gateway for the collection of event registration fees. For tickets sold using the Self Service option, monetary payments will be made to You directly by the Patron, and for tickets sold using the Full Service option, payments will be made to You by Festiment, in each case as described more fully below. If You have elected Full Service, Festiment charges a 6% fee (all inclusive) and, if applicable, an additional refund processing fee for ticket sales and refunds, respectively, processed by Us through the Gateway, as more fully described in Section 2.3 below (collectively, "Fees"). We will deduct or (if You have chosen the Self Service option) invoice you for all applicable Fees from Your booking revenue as stated in this Agreement and in Our pricing policy, which is 6% of each ticket sold. If You have elected Self Service, Festiment charges a 4% fee, all other fees are Your responsibilities. All Fees and any other monies contemplated by this Agreement are payable in EUR, PLN, GBP, USD or in any foreign currency accepted by Festiment for Events in another country or jurisdiction, as shown on our Site.
2.2 SELF SERVICE
(A) INDEPENDENT RELATIONSHIP
(B) SERVICE CHARGES
If You elect Self Service, You will collect all monies directly from Patrons and agree to use best efforts to do so. By registering for and using the Self Service payment processing option, you agree to: (i) pay Festiment the then-current Fees set by Festiment for use of the Self Service payment processing option, which payments shall be due and payable upon receipt from Us of the invoice setting forth such charges. Invoices are generally sent weekly for Fees incurred since the last paid invoice; and (ii) accept sole responsibility for providing refunds to Patrons at your own discretion. Festiment will not be responsible or liable for any refunds (or the lack thereof) or chargebacks issued if You elect the Self Service option. In no event are Festiment Fees refundable, and such fees will be deducted or charged in accordance with the next sentence without regard to whether you issue a refund to Your Patrons. In the event that payment fails twice, Festiment will suspend access to the Services and no further tickets will be sold to Your Event until full payment on outstanding invoices has been received by Festiment.
2.3 FULL SERVICE
(A) GATEWAY PAYMENT PROCESS
When You elect to use the Gateway for the collection of event registration fees, payment processing occurs directly by Festiment, and Organizations are assessed a processing fee equal to 6% of the value of the tickets. Under the Full Service option, (i) Festiment will collect all event registration fees on behalf of You from the Patron and deduct all applicable Fees from the event registration fees passed along to You,; (ii) Festiment will inform you weekly on the registrations being made and amounts collected, based on this information Organization will issue an invoice to Festiment on due charges. (iii) Festiment will make all payments to You (event registration fees minus applicable Fees due to Festiment, including any prior balance due to Festiment for any reason) based on the invoice that You will issue on weekly basis. You represent, warrant and covenant that the mailing address and/or checking account information provided to Us is accurate and You will update this information as necessary to maintain its accuracy; and (iv) Festiment will use commercially reasonable efforts to submit payment for the balance due to You within fourteen (14) business days after the end date for the Event to which the registration fees correspond, provided that Festiment reserves the right to withhold funds at any time as Festiment in its sole discretion determines to be necessary for the processing and settlement of all returns, disputed charges, customer complaints, allegations of fraud, chargebacks, expected chargebacks and other discrepancies.
It is Your responsibility to communicate Your refund policy to Patrons. In the event of canceled or postponed Events, Your refund policy is superseded by Festiment's refund policy as described in Subsection (B)(ii) below. Organization shall ensure that its refund policy is consistent with the terms of this Agreement, the payment and refund processes included in the Services, and all applicable legal, regulatory and other governmental requirements. All communications or disputes regarding refunds are between the Organization and the Patron, and Festiment will not be liable for any decision to issue or not issue refunds in the course of the use of the Full Service option. (i) Individual Refunds. If a Patron desires to request a refund, the Patron must request the refund from the Organization. If the Organization desires to fulfill the request, Organization can utilize the Services or contact Festiment to process the refund. Festiment will use commercially reasonable efforts to process refunds issued and requested to be issued by the Organization in a timely manner after the Organization authorizes the issuance of the refunds. Festiment has no responsibility to provide individual refunds which have not been authorized by the Organization in accordance with this provision. In addition, Festiment will NOT issue any refund to a Patron unless and until sufficient funds for the refund have been received from the Organization. (ii) Canceled or Rescheduled Events. No payments shall be made to an Organization from Festiment with respect to any Event that is cancelled (or for which the Organization otherwise authorizes a refund). If an Event is canceled, a refund shall be issued to Patrons. Organization will be sent an invoice for all Fees due to Festiment for such Event. Upon payment of all such Fees, Festiment will issue a full refund to Patrons. If Organization fails to submit payment to Festiment for its Fees in a timely manner, Festiment will process refunds for the canceled Event less all applicable Fees and Organization shall thereafter be required to refund the Fees directly to Patrons and Festiment shall have no further liability or obligation. If an event is rescheduled, Festiment will use its sole discretion to determine whether it is considered a cancellation and therefore subject to the refund policy described in this section. (iii) Notwithstanding the foregoing, You acknowledge and agree that, to protect its reputation and the integrity of the Site, Festiment shall have the right (but not the obligation) to force or provide a refund to Patrons of any or all amounts paid for tickets at any time for any reason or no reason, including without limitation if Festiment receives complaints from a substantial number (as determined by Festiment in its sole discretion) of Patrons with respect to an Organization or the applicable Event, or Festiment determines in its sole discretion that the Organization has engaged in any fraudulent activity or made any misrepresentations. Festiment shall have no liability whatsoever to an Organization in connection with or arising from any such decision to force or provide refunds.
(C) CREDIT CARD CHARGEBACKS
Under the Full Service option, any credit card chargebacks initiated by a Patron for any reason with respect to an Event shall be charged back to the Organization. Festiment in its sole discretion shall either (i) deduct these costs from such Organization's outstanding balance, whether for that particular Event or for any other Event that such Organization lists through the Services; or (ii) send an invoice to such Organization for such costs if no balance exists. If payment for such invoice is not received by Festiment within thirty (30) days after the invoice date, Festiment reserves the right, at Festiment's sole discretion, to terminate such Organization's registration for the Services and to cancel all other Events listed by such Organization as provided herein. Festiment shall have no liability whatsoever for any damages, claims or losses incurred by an Organization in connection with any such termination or cancellation. All communications and disputes regarding chargebacks are between the Organization and Patron, and Festiment will not be responsible or liable in any way for chargebacks issued in the course of the use of the Full Service option.
Upon receipt of a credit card authorization from each individual ticket purchaser, Festiment generates a confirmation message and issues a unique confirmation number. You agree to unconditionally accept, honor, and fulfill all ticketing commitments that have been confirmed by Festiment through the Services (and not returned or voided), and it is your responsibility to verify the applicable Patron's membership status, confirmation number and/or any Event restrictions prior to the subject Event. If We learn that You are not honoring Our ticketing commitments, we reserve the right, in our sole discretion, to terminate Your account without liability or further obligation.
3. TAXES; WITHHOLDING
You are responsible for (and will indemnify and hold harmless Festiment against) all taxes or other governmental charges associated with Your Event or Your sale of tickets through the Services (excepting taxes based on Festiment's net income). It is Your responsibility to know if any applicable laws apply to You and to adjust the ticket price accordingly to account for Your payment of these taxes. If Festiment determines that is required to collect or pay any such taxes or other charges, it may deduct such amounts from any balance payable to You under this Agreement or else invoice You for such taxes or other charges. Festiment reserves the right to withhold the payment of any amounts owed to You hereunder if Festiment suspects or determines that such amounts have been generated in (i) a fraudulent manner, (ii) violation of this Agreement, or (iii) violation of any applicable laws or regulations (foreign or domestic). Such withholding may be temporary or permanent (as determined by Festiment).
4. EVENT RESTRICTIONS
When submitting Your Event to Festiment to be listed on Our service, it is Your responsibility to provide to Us any event restrictions associated with said Event. Any Event that requires a restriction for admission, including, but not limited to, age, school or organizational affiliation, or other characteristics or requirements, must be clearly stated by You upon submission to Us. It is Your responsibility to ensure that said restriction is lawful and does not violate any federal, state, or local laws, or any applicable foreign laws, prior to submitting the Event to Us. It is also Your responsibility to verify that all customers can be admitted to Your Event.
You understand and agree that the Site may, at times, be inaccessible or inoperable for any reason, including, but not limited to: (i) equipment or communications malfunctions; (ii) periodic maintenance, repairs, or administrative reviews which We may undertake from time-to-time; or (iii) causes beyond Our reasonable control or which are not reasonably foreseeable by Us, such acts of government or the malicious or criminal acts of third parties.
6. REPRESENTATIONS AND WARRANTIES
You represent and warrant the following: (i) You are a producer, promoter, presenter, or manager of the Event; (ii) You have the authority and right to offer, sell, and honor the tickets to the Event sold on Our website; (iii) the Event itself and any material or content provided by You to Us for use on Our website is/are not (and does not contain, promote, or link to material or content that is) pornographic, defamatory, grossly offensive, harassing, malicious, illegal, or otherwise objectionable, and do not infringe or violate (or contain, promote or link to material or content that infringes or violates) the rights of any person or entity, including, but not limited to, copyright, trademark, trade secret, proprietary, intellectual property, and rights of privacy and/or publicity, whether by statute or common law; and (iv) the Event and the sale of tickets to the Event does not constitute a violation of any federal, state, and/or local law.
7. MISREPRESENTATION OF EVENT
The Event must be accurately and truthfully described when an Organization submits the Event listing to Festiment to be posted on the Site. If We discover and determine, in Our sole discretion, that You misrepresented the Event, We will cancel the Event and may issue a refund to ticket purchasers (net of any Fees) as provided in this Agreement. If We determine that You repeatedly engage in the conduct described in this paragraph, Your account will be terminated and any other Events submitted by You will be cancelled pursuant to this Agreement and Festiment reserves the right to take other actions or pursue additional remedies as permitted by law.
8. TECHNICAL SUPPORT
Festiment will provide technical and other customer support to Organization by which You can obtain technical assistance in dealing with any difficulties which may arise in connection with Your use of Our Site. Organizations can access support at [email protected] We attempt to provide such support in a timely manner, but make no guarantees that We will respond to Your inquiry by a particular time.
9. CONFIDENTIALITY AND NON-DISCLOSURE
You understand and acknowledge that Festiment is the owner of valuable trade secrets and confidential, non-public, and proprietary information (collectively "Confidential Information") and acknowledge that the services which We perform involve the furnishing of Confidential Information to You including, but not limited to: (i) customer names, mailing addresses, and other personally-identifiable information; (ii) sales; (iii) market demographics; (iv) pricing; and (v) business strategy, and that the goodwill and competitive position of Festiment depend, in part, upon You keeping such Confidential Information confidential. You agree to use Your best efforts to protect Our Confidential Information and to implement security measures to keep said Confidential Information confidential. Except pursuant to court order or the prior written consent of Us, You agree that You shall not disclose, distribute, sell, license, transmit, or disseminate any Confidential Information to any other party or permit or cause any unauthorized party to disclose, examine, and/or reproduce any reports, documents, transmissions, or data containing Confidential Information prepared or owned by Us. If You are requested or required to disclose Confidential Information pursuant to legal proceedings, You shall promptly notify Us so that We may prepare a response to said legal proceedings and You shall cooperate with Our efforts to obtain a suitable protective order.
10. PROMOTION OF EVENT
Organization shall use reasonable efforts to create, produce, and distribute marketing and promotional materials, and/or otherwise create marketing and promotional campaigns, which state that tickets to Your Event shall be available for sale at the Festiment website.
Except as provided elsewhere in this Agreement, either party may terminate this Agreement at any time upon fourteen (14) calendar days notice to the other. If You terminate this Agreement after you have submitted your Event to us, Your Event shall be cancelled as provided in this Agreement.
You grant us a limited, worldwide, royalty-free license to reproduce and use Your company or organizational name, logos and trademarks (and to authorize our service providers and media outlets to do so) in advertising or promotional materials, in any and all media (including print and Internet), whether now or hereafter existing, for the purpose of referring to you as a Festiment customer and/or describing our services for you.
Thoms Holden Holdings