1. Definitions and Interpretation
1.1 Construction of agreement
A. This agreement comprises the following documents:
i. The Covering Letter;
ii. the Schedules and Annexures; and
iii. these Standard Terms.
B. In the event of any inconsistency between the documents comprising this agreement, this agreement shall be interpreted according to the order in which the documents appear above.
1.2 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 Client grants to Eventopia the right to supply during the Term the Eventopia 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 10.
4. EVENTOPIA’s Obligations
Eventopia must supply to the Client the Eventopia Services in respect of the Event in accordance with this agreement.
The Client is solely responsible for performing, at its cost, its obligations under this clause 5.
5.2 Information Relating to Event
The client must:
A. Provide information: at the earliest practicable time (and in any case no less than 10 Business Days before the day on which Eventopia is directed to commence selling the Tickets for the particular Event), notify Eventopia in writing of all information relating to the Event to which Tickets are to be made available through the System;
B. Ensure information complete: Use reasonable endeavours to ensure that all information it gives to Eventopia relating to the Event and each Venue is accurate and complete; and
C. Notify alterations: If the Client receives or becomes aware of any alterations to the information referred to in paragraph (a) or (b), immediately notify Eventopia of those alterations.
D. Ticket allocation: Accurately maintain the number of Tickets available for sale or issue via the Eventopia Service for the Event and bear full responsibility for any Losses or Claims due to over-selling or over-issuing of Tickets to the Event;
E. Use of Eventopia Service: only use the Eventopia Service for lawful purposes and only for the purpose of creating an Event page for its Event and selling/issuing Tickets to that Event;
F. Disruption of Eventopia Service: not engage in any activity which interrupts or affects the Service;
G. Follow reasonable directions: follow any reasonable directions from Eventopia in relation to its use of the Eventopia Service;
H. Comply with Eventopia policies and procedures: comply with all reasonable rules, policies and procedures which may be published on the Site or provided by Eventopia from time to time;
I. Comply with laws: Comply with all applicable laws and regulations in relation to Tickets, the Event and this agreement;
J. Communicate: Ensure that its refund policy and any terms and conditions (which are in addition to the standard Eventopia Terms and Conditions of Sale) governing its Event and Tickets are communicated to Purchasers prior to purchase;
K. Donations: If it accept donations in relation to Tickets or the Event and makes a representations that the donation is deductible for income tax purposes, ensure that it is registered as a deductible gift recipient, provide accurate information to Purchasers of Tickets in relation to the deductibility of donations and provide receipts to Purchasers which comply with all relevant legal requirements. For the avoidance of doubt, no part of the Ticket price shall constitute a donation and Eventopia is not responsible for any donation amounts received by it in relation to the Event;
L. Notification: Notify Purchasers of Tickets if the Event is cancelled, altered, relocated, rescheduled or postponed;
M. Provide Refunds: Where required, provide refunds to Purchasers in accordance with clause 9.2 of this Agreement;
N. Bank Account Details: If it is not using its own Stripe account or its Merchant Account to receive Ticket proceeds, provide Eventopia with valid bank account details for receipt of Ticket proceeds;
O. Advertising: Ensure that any advertising in relation to the Event and Tickets is accurate and not misleading;
P. Privacy and Spam Laws: Comply with all applicable privacy and spam laws with regard to any Purchaser information (including name, address, mobile number and email address) it obtains via Eventopia or the Service;
Q. Third Party Rights: If it submits content to the Site or Eventopia Service, whether articles, images or other copyrightable material, ensure that the content it uploads does not infringe the copyright or other rights (including intellectual property rights) of third parties.
5.3 Use and promotion of Eventopia Services
The client must:
A. Use of Eventopia Services: Only use the Eventopia Services for lawful purposes and follow any reasonable directions from Eventopia in relation to the use of the Eventopia Services;
B. Reasonable Assistance: Provide all assistance reasonably requested by Eventopia to enable it to provide the Eventopia Services in accordance with this agreement;
C. Promote the Network: Include in its advertising of Event references to Eventopia and the Network;
D. Ticket Stock: Not supply or use any Ticket stock in respect of the Event other than Ticket stock produced by Eventopia for use with the System;
E. And Consignment and Complimentary Tickets: Not sell or permit to be sold any Consignment Tickets and/or Complimentary Tickets in respect of the Event without Eventopia’s prior consent.
5.4 Box Office
The client must:
A. Provide space: Cause a sufficient area at each Venue to be allocated for use as a Box Office, including an adequate space for a public counter and telephone lines;
B. Provide fittings and security: Provide adequate and safe fittings, air-conditioning, lighting, furnishings (including counter and seats) and adequate security devices to secure the Box Office, the Eventopia Hardware and Software, all Tickets and all Ticket proceeds and credit card dockets;
C. Protect Eventopia Hardware and Software: Not permit any person to access or use any part of the Eventopia Hardware and Software other than the Client’s employees who have been approved in writing by Eventopia or other persons authorised in writing by Eventopia;
D. Provide public access: Ensure that the public have access to the customer counters and customer waiting areas in the vicinity of the Box Office during Box Office opening hours, including appropriate space for, and management of, queues to the Box Office;
E. Insure: take out and maintain at all times during the term adequate insurances in respect of the Box Office (including the Eventopia Hardware and Software) against loss, theft and damage and injury or death to persons;
F. And Pay Costs: Except as expressly set out in this agreement, pay all costs associated with the Box Office, including all necessary electricity, telephone charges and regular cleaning costs.
5.5 Access to Venue
The Client will procure access for Eventopia and its Personnel during normal business hours the right of ingress and egress to or from the Box Office and such other areas of a Venue as it reasonably requires to perform its obligations under this agreement.
5.6 Use of Trademarks
Each party grants to the other a non-exclusive, royalty free right during the Term to use its Trademarks on the terms of this clause 5.6. Except as the grantor otherwise agrees in writing, the grantee must:
A. Only use for permitted use: only use the Trademarks for the promotion and sale of Tickets;
C. Not Modify: Not alter, modify, change or edit the Trademarks;
D. And Not Denigrate: Not use the Trademarks in a way that does, or in the grantor’s reasonable opinion is likely to, denigrate or adversely affect the Trademarks or the grantor.
6. EVENTOPIA hardware and software
6.1 Ownership and removal of the Eventopia Hardware and Software
At all times, the Eventopia Hardware and Software remains the sole property of Eventopia. At the end of the Event, Eventopia may remove the Eventopia Hardware and Software in accordance with clause 12.4.
6.2 Use of the Eventopia Hardware and Software
Eventopia grants to the Client a non-exclusive right to use the Eventopia Software on the terms of this clause 6.2. The Client must ensure that:
A. Only use with the System: The Eventopia Hardware and Software is only used for the sale of Tickets to Event using the System, and for no other purpose;
B. Use Properly: The Eventopia Software is used and operated in a proper and skilful manner using only competent and appropriately trained and qualified personnel in compliance with any reasonable operating manual or specification which Eventopia provides from time to time;
C. And not encumber, move or modify: The Eventopia Software is not encumbered, moved or modified without Eventopia’s prior written consent, such consent not to be unreasonably withheld or delayed.
6.3 Loss or Damage to Eventopia Hardware and Software
If any part of the Eventopia Hardware and Software is damaged (other than by Eventopia or its Personnel or through fair wear and tear or any latent defect), the Client must pay to Eventopia the cost of restoring or replacing the Eventopia Hardware and Software to at least the same condition as it was before the damage occurred. The Client 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.
Payments relating to the Service are transacted at the Client’s election via one of the following options:
B. The Eventopia payment processing gateway (Gateway); or
C. Upon prior agreement with Eventopia, its own Merchant Account which will require a direct debit arrangement between it and Eventopia;
Each of these options in described in more detail on the FAQs section of the Eventopia website.
8. Fees, Charges and Settlement
8.1 What Eventopia will charge purchasers of Tickets
Eventopia will charge purchasers of Tickets the Transaction Fees set out in Item 2.4 of the Covering Letter.
Subject to clauses 8.8, 8.10 and 9, on the Settlement Days in respect of the Event, Eventopia must pay to the Client the proceeds of Tickets to the Event sold through the System and received by Eventopia less any amount Eventopia is entitled to deduct under clause 8.3.
8.3 Fees Eventopia will charge the Client
Where applicable, Eventopia will charge the Client the Fees set out in Eventopia’s rate sheet as amended from time to time. These amounts relate to optional services which the Client may elect to utilise, for example, printing of hard tickets for the Event.
8.4 Payment of Ticket proceeds
The Client has three options in relation to payment of the Ticket proceeds for the Event:
A. Stripe: If the Client elects to use a Stripe account, Stripe will deduct from the Ticket proceeds any Fees or other amounts payable by the Client to Eventopia under this Agreement, prior to depositing the remaining Ticket proceeds in the Client’s Stripe account.
B. Gateway: If the Client elects to use the Eventopia Gateway for payment processing, subject to clauses 8.6 and 9, on the Settlement Day, Eventopia must pay into the Client’s nominated account the proceeds of Tickets to the Event sold through the Eventopia Service and received by Eventopia less any amount Eventopia is entitled to deduct under clause 8.6.
C. Merchant Account: If Eventopia provides consent to the Client to use its own Merchant Account for payment processing, it will be responsible for collecting all proceeds from the sale of Tickets via the Eventopia Service and Eventopia will deduct its Fees and any other amounts payable by the Client to Eventopia under this Agreement or otherwise in accordance with the direct debit agreement in place between the Client and Eventopia.
8.5 Deduction of Amounts Owing
The Client irrevocably authorises Eventopia to deduct from amounts payable by it to the Client 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 Client to Eventopia.
8.6 Payment by Client of Other Amounts Owing
The Client must pay to Eventopia all Charges and other amounts owing under this agreement but not deducted under clause 8.6 within 30 days after Eventopia issues an invoice to the Client in respect of the amount due.
Any credit card charge backs or reversals received by Eventopia will be charged to the Client, including any fees charged to Eventopia by third parties in respect of the charge back.
8.8 Third Party claims against Eventopia
If, in Eventopia’s reasonable opinion, it is likely that a Claim by a party other than the Client will be made against it arising from the Event (including any cancellation of the Event):
A. Eventopia will consult in good faith with the Client prior to taking any further action including, where appropriate, consultation at a CEO-level;
B. The Client authorizes Eventopia to retain a reasonable proportion of the Ticket proceeds (such proportion to be determined by the parties acting reasonably);
C. If the Claim is settled or resolved by final determination of a court Eventopia may apply those monies in full or partial satisfaction of any liability which the Client has to Eventopia in respect of the Event;
D. If it is determined finally by a court that the Client has no liability either to Eventopia or to the purchaser of any Tickets, Eventopia will release to the Client the Ticket proceeds which it retained pursuant to clause 8.10.
8.9 Title in Ticket Proceeds
Property in all proceeds from the sale of all Tickets (including any Tickets sold by the Client) vests legally in Eventopia at the time of purchase. Eventopia holds all monies payable to the Client from the proceeds of the sale of Tickets on trust at all times for the Client
Neither party is liable to pay interest on amounts due but unpaid. Eventopia retains the right to recover any cost or loss arising from foreign exchange.
8.11 Manner and Currency of Payments
All amounts payable under this agreement must be paid by electronic transfer in Australian dollars. Eventopia is not obliged to accept any currency in respect of Ticket sales other than Australian dollars.
9. Cancellation of Events
A. If the Event or part of a series of performances comprising the Event is cancelled or postponed the Client must notify Eventopia immediately to prevent the further sale or issue of Tickets for the cancelled or postponed Event.
9.2 If A Refund Is Payable
Unless otherwise set out in this Agreement, the Client is responsible for refunding purchasers of Tickets in accordance with all applicable laws, industry codes, the Eventopia terms and conditions of sale and any other lawful terms and conditions of sale notified to purchasers of Tickets by the Client during the purchase process. Eventopia will not be responsible or liable for any refunds, errors in issuing refunds or lack of refunds by the Client.
9.3 When Eventopia is responsible for refunds
Eventopia will only be responsible for refunding purchasers of Tickets who purchased their Tickets via the Eventopia Service in the limited circumstance where payments have been processed by the Eventopia Gateway. After settlement of Ticket proceeds has occurred, Eventopia will no longer be responsible for issuing refunds to purchasers of Tickets and the Client must be responsible for refunding Ticket purchasers.
9.4 Cancellation Fee
The Client agrees to pay Eventopia in respect of the cancellation of the Event the Cancellation Fee which Eventopia shall be entitled to retain in all circumstances.
A. Eventopia will notify purchasers of Tickets of any cancellations or postponements of the Event via email at its cost. If a valid email address is not provided by purchasers of Tickets, Eventopia will bear no responsibility to notify such purchasers of a cancellation or postponement of the Event.
B. If Eventopia is required to notify purchasers of Tickets of a postponement or cancellation of the Event, otherwise than as contemplated under clause 9.5(a), the Client must reimburse to Eventopia the costs and expenses incurred by Eventopia in giving such notice.
10. Use of Logo
In print and online advertising created by the Client to promote the Event, the Client may include Eventopia’s website address (www.eventopia.co). In addition, Eventopia grants a non-exclusive, royalty free right during the Term to use its Logo on the terms of this clause 10. The Client must:
A. Only use the Logo for the promotion and sale of Tickets;
B. Comply strictly with the Eventopia’s directions in relation to its use of the Logo and Eventopia’s brand guidelines from time to time;
C. Not alter, modify, change or edit the Logo; and
D. Not use the Logo in a way that does, or in the Eventopia’s opinion is likely to, denigrate or adversely affect the Logo or Eventopia.
11. Representations, warranties and indemnities
11.1 General representations and warranties
The Client warrants to Eventopia that:
A. The entering into and performance of this Agreement will not result in any breach of, or constitute a default under, any other agreement to which it is a party, including, any agreement for the sale or other issue of tickets for the Event or the Venue; and
B. The number of Tickets made available for sale or issue does not exceed legal, fire or council rules or regulations or other restrictions of the Venue or of governmental agencies.
Each party represents and warrants to each other party:
A. It is duly incorporated and validly existing under the laws of the place of its incorporation;
B. It has full corporate power to execute, deliver and perform its obligations under this agreement; and
C. The execution, delivery and performance of this agreement has been properly authorized by it.
A. The Client indemnifies Eventopia for any Loss Eventopia may incur, or be liable for, arising from or in connection with any breach by the Client of this agreement or any negligent act, omission or default on the part of the Client or its Personnel in relation to the performance or non-performance of its obligations under this agreement.
B. The Client indemnifies Eventopia against any Loss (including legal fees and expenses) Eventopia may incur, or be liable for, arising from or in connection with any failure by the Client or its Personnel to comply with all legislation relating to the handling, treatment and use of Ticket purchaser information (including name, address, mobile phone number and email address) that it obtains via Eventopia or the Eventopia Service. The Client understands that this indemnity extends to any Loss suffered by Eventopia as a result of adverse publicity, which is related to the breach of any legislation.
To avoid any doubt, the indemnity in clause 11.2 does not apply to the extent the indemnity is prohibited by law.
11.3 Limitation of Liability
A. Eventopia 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 Australian Consumer Law which contains guarantees that protect purchasers of goods and services in certain circumstances.
B. If any guarantee, condition, term or warranty is implied or imposed in relation to this agreement by applicable law (including the Australian Consumer Law) and cannot be excluded, restricted or modified (Non-Excludable Provision), and Eventopia is able to limit the Client’s remedy for a breach of the Non-Excludable Provision, then Eventopia’s liability for breach of the Non-Excludable Provision is limited to one or more of the following at Eventopia’s option:
i. In the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again; and
ii. In the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or acquiring equivalent goods, or the payment of the cost of having the goods repaired.
This clause 11.3(b) states, subject to Eventopia’s obligations under the Non-Excludable Provisions and to the maximum extent permitted by law, the entire aggregate liability of Eventopia and exclusive remedy of the Client (including for any Loss or damage sustained by the Client in connection with this agreement, whether arising in contract, tort (including negligence), statute, equity or otherwise).
C. The limitation in clause 11.3(b) and the exclusion in paragraph 11.3(d) does not apply in relation to liability:
i. for personal injury (including sickness or death);
ii. for loss, damage to or loss of use of, any real or personal property; or
iii. for fraud, dishonesty or willful misconduct.
D. Subject to Eventopia’s obligations under the Non-Excludable Provisions, Eventopia’s liability for Consequential Loss is excluded.
E. For the purposes of clause 11.3(d), 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 11.3(b)).
F. Eventopia 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.
12.1 Eventopia’s Right To Terminate
Eventopia may terminate this Agreement and the Client’s use of the Eventopia Service immediately if:
A. An Insolvency Event occurs in relation to the Client;
B. The Client breaches any of its obligations under this Agreement; or
C. The Client fails to pay any money due to Eventopia when it falls due.
12.2 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.
12.3 Removal of Eventopia Hardware and Software
At the end of the Event, the Client must permit Eventopia to enter the Box Office to remove all Eventopia Hardware and Software, Ticket stock, advertising and other property of Eventopia.
13. FORCE MAJEURE
13.1 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.
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.
14. Assignment and subcontracting
14.1 Assignment and other dealings
Except as permitted by clause 14.2, 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.
14.2 Subcontracting and delegation
Eventopia 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 Eventopia of its obligations under this agreement.
15.1 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.
15.2 Information remains confidential
Each party must use its best endeavours to ensure that the information set out in clause 15.1 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.
15.3 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:
A. Disclosures required by law or a requirement of any regulatory body court or tribunal;
information which is in or comes into the public domain other than as a result of a breach of this agreement; or
B. Disclosures to the financial accounting or legal advisers of the parties where reasonably required and provided appropriate confidentiality undertakings are obtained,
and no party shall use any such confidential information other than for the purpose for which it was provided to that party.
16.1 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.
16.2 Tax invoices
Eventopia will issue tax invoices in respect of any supplies made by Eventopia pursuant to this agreement. The Client will not issue tax invoices in respect of amounts referred to in this clause 16.2.
16.3 Client’s registration
The Client acknowledges that it is a resident of Australia and is registered for GST at the date of entering into this agreement and shall notify Eventopia in writing if it ceases to be registered for GST or any change in residency, within 5 Business Days of such cessation or changes.
Eventopia retains the right to recover any Loss arising from the Client failing to notify Eventopia when the Client is required to do so.
16.4 Eventopia’s registration
Eventopia acknowledges that it is registered for GST at the date of entering into this agreement and shall notify the Client in writing if it ceases to be registered for GST within 5 Business Days of such cessation.
16.5 GST invoices
Eventopia will not issue a document purporting to be an invoice issued for GST purposes on or after the date when the Client or Eventopia has failed to comply with any of the requirements of a GST Determination.
16.6 Non-resident Hirers
Eventopia reserves the right to deduct the GST component from the proceeds of Ticket sales and account for that GST to the Australian Taxation Office where required to do so by the applicable GST legislation as amended from time to time including, where any principal for whom the Client is acting in selling the Tickets for the Event is not resident in Australia for tax purposes.
17. Tax, Costs and Expenses
Subject to clause 16, each party must pay any Tax incurred by that party which arises from signing, delivering and performing this agreement.
17.2 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.
A. The Client appoints Eventopia as its agent to sell Tickets for the Event through the Network.
B. The Client acknowledges that:
i. Eventopia provides ticketing services to a range of venues and promoters and has ongoing business dealings with other venues and promoters;
ii. this agreement in no way restricts, and the Client agrees not to interfere with, Eventopia’s other business dealings; and
iii. Eventopia is not obliged to disclose to it the confidential information of another promoter.
C. The Client acknowledges that this agreement is an arms-length commercial contract which sets out in full Eventopia’s duties and obligations as agent. The Client irrevocably and unconditionally releases Eventopia from any further duties or obligations which may be implied at law.
D. This agreement does not create a fiduciary relationship or a relationship of employment or partnership between the parties or an agency in which Eventopia is the principal.
19. Obligation to act in good faith
Eventopia and Client must act in good faith in respect of this agreement. Neither Eventopia nor the Client may do anything which will circumvent the operation of this agreement or deprive either Eventopia or the Client of its rights under this agreement.
20. Privacy and use of customer data
B. Eventopia 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.
21. PAYMENT CARD INDUSTRY DATA SECURITY
A. The Client acknowledges that Eventopia 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).
B. The Client will use reasonable commercial endeavours to adhere to and be compliant with the PCI Data Security Standards.
C. The Client acknowledges that it is responsible for the security of cardholder data of Customers that the Client possesses or otherwise stores, processes or transmits on behalf of Eventopia, 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).
A. 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:
i. Must be in legible writing and in English;
ii. Must be addressed to the addressee at the address or facsimile number set out in the Covering Letter or to any other address or facsimile number a party notifies the other under this clause.
iii. Must be signed by an officer or under the common seal of a sender which is a body corporate; and
iv. is deemed to be received by the addressee in accordance with paragraph (b).
B. Without limiting any other means by which a party may be able to prove that a notice has been received by another party, a notice is deemed to be received:
i. if sent by hand or by post, when delivered to the addressee;
ii. if by facsimile transmission, on receipt by the sender of an acknowledgment or transmission report generated by the machine from which the facsimile was sent, but if the delivery or receipt is on a day which is not a Business Day or is after 4.00 pm (addressee’s time) it is regarded as received at 9.00 am on the following Business Day.
C. A facsimile transmission is regarded as legible unless the addressee telephones the sender within 2 hours after transmission is received or regarded as received under paragraph (b) and informs the sender that it is not legible.
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:
A. It is read down or severed in that jurisdiction only to the extent of the invalidity or unenforceability; and
B. It does not affect the validity or enforceability of that provision in another jurisdiction or the remaining provisions in any jurisdiction.
This clause is not limited by any other provision of this agreement in relation to severability, invalidity or unenforceability.
22.3 Amendments and Waivers
A. This agreement may be amended only by a written document signed by the parties. A waiver of a provision of this agreement or a right or remedy arising under this agreement, including this clause, must be in writing and signed by the party granting the waiver.
B. A single or partial exercise of a right does not preclude a further exercise of that right or the exercise of another right. Failure by a party to exercise a right or delay in exercising that right does not prevent its exercise or operate as a waiver. A waiver is only effective in the specific instance and for the specific purpose for which it is given.
22.4 Cumulative Rights
The rights and remedies of a party under this agreement do not exclude any other right or remedy provided by law.
No provision of this agreement merges on completion or termination of this agreement.
22.6 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.
22.7 Further assurances
Each party must do all things necessary to give full effect to this agreement and the transactions contemplated by this agreement.
22.8 Entire agreement
This agreement supersedes all previous agreements about its subject matter and embodies the entire agreement between the parties. The Client acknowledges that no representations or warranties in connection with the Eventopia Services have been made by Eventopia or anyone on behalf of Eventopia other than as set out in this agreement.
22.9 Specific performance
The Client acknowledges that monetary damages alone would not be adequate compensation to Eventopia for the Client’s breach of its obligations under this agreement (and clause 1.1 in particular) and that specific performance of those obligations is an appropriate remedy, particularly having regard to the unique nature of the rights granted to Eventopia under this agreement.
22.10 Third party rights
Only Eventopia and the Client has or is intended to have a right or remedy under this agreement or obtain a benefit under it.
22.11 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.
This agreement may be signed in any number of counterparts and all those counterparts together make one instrument.
22.13 Governing law and Jurisdiction
The laws of New South Wales 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.
In this agreement:
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 relevant amount specified in the Covering Letter.
Charge means each of the Customer Fee, Payment Processing Fee, Transaction Fee and any other fees or charges specified in the Covering Letter.
Claim means any demand, action, proceeding, cost or expense.
Client means the person specified in the Covering Letter.
Commencement Date means the date specified in the Covering Letter.
Complimentary Charge means the relevant amount specified in the Covering Letter.
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 Eventopia under this agreement.
Covering Letter means the document so entitled between Eventopia and the Client to which these Standard Terms are attached.
Customer Fee means the relevant charge specified in the Covering Letter, being a fee which Eventopia charges on a per Ticket basis and which is included in the face value of a Ticket.
Event means the events described in the Covering Letter to be held at the Venue(s).
Eventopia Hardware and Software means the hardware and software (if any) to be installed by Eventopia at the Venue and listed in the Covering Letter.
Eventopia Services means:
A. The ticketing and other services set out in the Covering Letter.
B. Any good, service or system in respect of the Venue(s) or the Event which is the same as, or similar to, a good, service or system supplied by Eventopia under this agreement, and includes any service of, or system for, selling Tickets and any and all services available on or through the Site or otherwise provided by Eventopia Pty Ltd for the Client’s Event.
Expiry Date means the date specified in the Covering Letter.
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).
GST Determination means A New Tax System (Goods and Services Tax) Act 1999 Classes of Recipient Created Tax Invoice Determination (No 1) 2000 (as amended or replaced from time to time).
Insolvency Event means in the case of a corporation any of the following:
C. A liquidator or provisional liquidator is appointed;
D. An administrator is appointed;
E. A receiver or receiver and manager is appointed to the corporation and/or any of its assets; or
F. Anything analogous to or of a similar effect to anything described above under the law of any relevant jurisdiction occurs in respect of any person.
Loss means any loss, cost, expense or liability.
Merchant Account means the account the Client nominates to use for payment processing in relation to the sale of Tickets to the Event.
Network means all facilities, systems, channels, contractors and agents which Eventopia, 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.
Payment Processing Fees means the relevant amount specified in the Covering Letter.
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 Client’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 Covering Letter.
Site means the website at www.eventopia.co.
System means the computerised booking system used by Eventopia 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.
Trademark means, in respect of a party, each trademark which the party from time to time owns is licensed to use.
Transaction Fee means the relevant charge specified in the Covering Letter.
Venue means each place specified in the Covering Letter.
A. In this agreement unless the context otherwise requires:
i. Words importing the singular include the plural and vice versa;
ii. Other parts of speech and grammatical forms of a word or phrase defined in this agreement have a corresponding meaning;
iii. A reference to a thing (including, but not limited to, a chose-in-action or other right) includes a part of that thing;
iv. a reference to a clause, party or attachment is a reference to a clause, party or attachment of or to this Agreement unless otherwise stated;
v. A reference to a schedule is a reference to a schedule to the Covering Letter unless otherwise stated;
vi. A reference to a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, bylaw judgment, rule of common law or equity or a rule of an applicable stock exchange and is a reference to that law as amended, consolidated or replaced;
vii. A reference to a party to a document includes that party’s successors and permitted assigns; and
words of inclusion are not words of limitation.
B. Where the day on or by which something must be done is not a Business Day, that thing must be done on or by the following Business Day.
C. Headings are for convenience only and do not affect the interpretation of this agreement.
D. This agreement may not be construed adversely to a party just because that party prepared it.
E. A term or expression starting with a capital letter:
i. Which is defined in this Dictionary, has the meaning given to it in this Dictionary;
ii. Which is defined in the Corporations Act or any regulations thereunder but is not defined in this Dictionary, has the same meaning as in that legislation; and
iii. Which is defined in the GST Law or any regulations thereunder has the same meaning as in that legislation.