THIS TICKETING SERVICES AGREEMENT ("Agreement") is made by and between Opendate, with a principal place of business at 6259 N College Ave, Indianapolis, IN, 46220 ("Company," "Opendate," "We," "Us," or "Our" ), and you, a person, organization or other entity (an "EVA," or "You" or "Your"). Opendate 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 (including streamed 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:
Opendate charges a per-ticket fee for Our Services. All Fees and any other monies contemplated by this Agreement are payable in United States Dollars.
EVAs are assessed a processing fee (set forth on Your order form) of the value of the Patron’s order. (i) Opendate 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) Opendate will make all payments to You (event registration fees minus applicable Fees due to Opendate, including any prior balance due to Opendate for any reason) utilizing the ACH Direct Deposit into the account you authorize. 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 (iii) Opendate will use commercially reasonable efforts to submit payment for the balance due to You in a timely manner following the end date for the Event to which the registration fees correspond, provided that Opendate reserves the right to withhold funds at any time as Opendate 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.
If requested by EVA, Opendate will collect a fee from Patrons in the amount of the EVA Royalties on tickets/registrations sold by EVA through the transaction type indicated above (each, a “Royalty”). Opendate will collect Royalties at the time of purchase along with the Service Fee. The Opendate Processing Fee applies to the Royalty.
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 Opendate's refund policy as described in Subsection (ii) below. EVA 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 EVA and the Patron, and Opendate will not be liable for any decision to issue or not issue refunds.
(i) Individual Refunds. If a Patron desires to request a refund, the Patron must request the refund from the EVA. If the EVA desires to fulfill the request, the EVA can utilize the Services or contact Opendate to process the refund. Opendate will use commercially reasonable efforts to process refunds issued and requested to be issued by the EVA in a timely manner after the EVA authorizes the issuance of the refunds. Opendate has no responsibility to provide individual refunds which have not been authorized by the EVA in accordance with this provision. In addition, Opendate will NOT issue any refund to a Patron unless and until sufficient funds for the refund have been received from the EVA.
(ii) Canceled or Rescheduled Events. No payments shall be made to an EVA from Opendate with respect to any Event that is cancelled (or for which the EVA otherwise authorizes a refund). If an Event is canceled, a refund shall be issued to Patrons. If an event is rescheduled, Opendate 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, Opendate 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 Opendate receives complaints from a substantial number (as determined by Opendate in its sole discretion) of Patrons with respect to an EVA or the applicable Event, or Opendate determines in its sole discretion that the EVA has engaged in any fraudulent activity or made any misrepresentations. Opendate shall have no liability whatsoever to an EVA in connection with or arising from any such decision to force or provide refunds.
Any credit card chargebacks initiated by a Patron for any reason with respect to an Event shall be charged back to the EVA. Opendate in its sole discretion shall either (i) deduct these costs from such EVA's outstanding balance, whether for that particular Event or for any other Event that such EVA lists through the Services; (ii) send an invoice to such EVA for such costs if no balance exists; or (iii) charge the chargebacks to Your designated bank account(s). If payment for such invoice is not received by Opendate within thirty (30) days after the invoice date, Opendate reserves the right, at Opendate's sole discretion, to terminate such EVA's registration for the Services and to cancel all other Events listed by such EVA as provided herein. Opendate shall have no liability whatsoever for any damages, claims or losses incurred by an EVA in connection with any such termination or cancellation. You are responsible for any chargebacks that Opendate receives from its merchant bank in connection with Your Events. All communications and disputes regarding chargebacks are between the EVA and Patron, and Opendate will not be responsible or liable in any way for chargebacks issued in the course of the use of the Full Service option. For purposes of this Agreement, “chargebacks” shall mean the amounts that the merchant bank is charged back by a cardholder or a card issuer under the card organization’s rules (e.g. cardholder dispute, fraud, declined transaction, returned tickets for canceled events, etc.). Opendate will charge You a $15.00 fee per lost Chargeback to cover associated card fees.
Upon receipt of a credit card authorization from each individual ticket purchaser, Opendate 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 Opendate 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.
In the event that You do not pay to Opendate upon request any amount required to paid by You under this Agreement, Opendate shall be entitled to recover from You, in addition to any amounts otherwise owing, its reasonable costs of collection, including, without limitation, collection agency fees, reasonable attorneys' fees, and court costs.
You are responsible for (and will indemnify and hold harmless Opendate against) all taxes or other governmental charges associated with Your Event or Your sale of tickets through the Services (excepting taxes based on Opendate's net income). For example, some states may charge an amusement or other tax on certain types of Events. 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 Opendate 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. Opendate reserves the right to withhold the payment of any amounts owed to You hereunder if Opendate suspects or determines that such amounts have been generated in (i) a fraudulent manner, (ii) violation of this Agreement or the TOS, or (iii) violation of any applicable laws or regulations (foreign or domestic). Such withholding may be temporary or permanent (as determined by Opendate).
When creating Your Event in Opendate, it is Your responsibility to provide 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, hardware or software requirements, or other characteristics or requirements, must be clearly stated by You upon creation of the event. 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 or view to Your Event, as applicable.
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.
You have established, and shall at all times during the term of this Agreement maintain and comply with, reasonable administrative, organizational, technical, and physical controls that prevent the Site from being accessed or used in any manner in violation of any applicable terms or other agreements between Opendate and ticket purchasers (including in violation of any prohibitions or use restrictions contained therein, such as prohibitions on copying the website or any of its content). You shall immediately notify Opendate in writing upon becoming aware of any such conduct or activity. In addition to Your other indemnification obligations in this Agreement, You hereby agree to indemnify, defend, and hold harmless Opendate and its affiliates from and against any claims, actions, demands, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred by the indemnitees as a result of or in connection with any such conduct or activity.
EVA hereby appoints Opendate as the sole and exclusive provider during the Term of Ticketing and Registration Services for (i) all events at Venue listed in agreement. During the Term, EVA will not sell tickets or registrations to any Events through any other person or entity; and/or (B) enter into any other agreement that would violate Opendate’s exclusive rights stated in this Agreement. Upon any Divestiture or Change of Control of Organizer or any Venues or Events, Opendate’s rights and EVA and its Affiliates’ exclusivity obligations will continue in full force and effect after such Divestiture or Change of Control for all Venues and Events. If the name or address of a Venue changes during the Term, Opendate’s rights and EVA’s and its Affiliates’ exclusivity obligations will continue in full force and effect after such change. For the avoidance of doubt, any breach by EVA of this “Exclusivity” Section of the Agreement will be deemed material and incurable.
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 Site; (iii) the Event itself and any material or content provided by You to Us for use on Our Site 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 do not constitute a violation of any federal, state, and/or local law.
You will not use the Opendate Site or Service for unlawful purposes.
You will not submit or otherwise provide or make available any information or content that is defamatory, indecent, pornographic, obscene, otherwise objectionable or harmful, or that violates the legal rights of third parties through or using the Opendate Site or Service.
You will not engage in data mining or similar data gathering or extraction activities or retrieve data or other content from the Opendate Site or Service for purposes of creating or compiling that content for any purpose other than your authorized use of the Opendate Site or Service as permitted by this Agreement.
You will not access, use, or copy any portion of the Opendate Site or Service, including any of its content, through the use of indexing agents, spiders, scrapers, bots, web crawlers, or other automated devices or mechanisms.
You will not use the Opendate Site or Service to post, transmit, input, upload, or otherwise provide any information or material that contains any viruses, worms, Trojan horses, logic bombs, time bombs, cancelbots, malware, ransomware, adware, or other harmful computer code or programming routines, including those designed to or that reasonably may disable, damage, impair, interfere with, surreptitiously intercept, or expropriate the Opendate Site or Service or any computers, hardware, software, system, data, or networks.
You will not engage in activities that aim to render the Opendate Site or Service or associated services inoperable or to make their use more difficult.
OPENDATE’S SITE AND SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITHOUT ANY WARRANTY OF ANY KIND. OPENDATE DOES NOT WARRANT OR GUARANTEE THE QUALITY, COMPLETENESS, TIMELINESS, OR AVAILABILITY OF THE SITE OR SERVICES. OPENDATE DOES NOT WARRANT OR GUARANTEE THAT THE SITE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, THAT ANY DEFECTS IN THE SITE OR SERVICES WILL BE CORRECTED, OR THAT THE SITE OR SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL CONDITIONS OR COMPONENTS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OPENDATE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE SITE AND SERVICES, INCLUDING WITHOUT LIMITATION THOSE REGARDING AVAILABILITY, QUALITY, ACCURACY, MERCHANTABILITY, FITNESS FOR ANY USE OR PURPOSE, COMPATIBILITY WITH ANY STANDARDS OR USER REQUIREMENTS, TITLE, AND NONINFRINGEMENT, AS WELL AS ANY ARISING BY OPERATION OF LAW OR FROM A COURSE OF DEALING OR USAGE IN TRADE. OPENDATE HAS NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MISDELIVERY, OR FAILURE TO STORE ANY CONTENT OR USER COMMUNICATION.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND, RELEASE AND HOLD HARMLESS OPENDATE, ITS AFFILIATES, AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS (COLLECTIVELY, THE “OPENDATE PARTIES”) FROM AND AGAINST (I) ALL CLAIMS, LOSSES, LIABILITIES, SETTLEMENTS, FINES, PENALTIES, ACTIONS, LAWSUITS AND LEGAL ACTIONS BROUGHT BY ANY THIRD PARTY AGAINST ANY OF THE OPENDATE PARTIES ARISING FROM OR RELATING TO (A) YOUR USE OF THE OPENDATE SITE OR ANY SERVICES OFFERED BY OPENDATE; (B) YOUR VIOLATION OF THESE TERMS; (C) ANY CONTENT OR FEEDBACK YOU PROVIDE; (D) YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD PARTY; (E) ANY CANCELLATION, POSTPONEMENT, RESCHEDULING, OR DELAY OF AN EVENT; OR (F) ANY ALLEGATION THAT THE CONTENT YOU PROVIDE OR DATA OR INFORMATION YOU INPUT INTO THE OPENDATE SITE INFRINGES, MISAPPROPRIATES, OR VIOLATES THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY (COLLECTIVELY, “THIRD-PARTY ACTIONS”); AND (II) ANY AND ALL LOSSES, DAMAGES, LIABILITIES, SETTLEMENTS, JUDGMENTS AND EXPENSES (INCLUDING PAYMENT OF THE OPENDATE PARTIES’ ATTORNEYS’ FEES AND COSTS) INCURRED BY ANY OF THE OPENDATE PARTIES, ASSESSED OR FOUND AGAINST ANY OF THE OPENDATE PARTIES, OR MADE BY ANY OF THE OPENDATE PARTIES, RELATING TO OR ARISING FROM ANY SUCH THIRD-PARTY ACTION (COLLECTIVELY, “THIRD PARTY RELATED LOSSES”).
YOU UNDERSTAND AND AGREE THAT YOUR INDEMNIFICATION OBLIGATIONS TO THE OPENDATE PARTIES APPLY EVEN IF SUCH THIRD-PARTY ACTION AND THIRD PARTY RELATED LOSSES ARISE FROM THE NEGLIGENCE OF ANY KIND OR DEGREE, BREACH OF CONTRACT OR WARRANTY, STRICT LIABILITY, NON-COMPLIANCE WITH APPLICABLE LAW, OR OTHER FAULT OR WRONGDOING OF ANY OF THE OPENDATE PARTIES.
HOWEVER, NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO REQUIRE ANY INDEMNIFICATION THAT WOULD RENDER OR MAKE THIS CLAUSE, IN WHOLE OR IN PART, VOID AND/OR UNENFORCEABLE UNDER APPLICABLE LAW. FURTHER, YOUR INDEMNIFICATION OBLIGATION SHALL NOT APPLY TO ANY WILLFUL, WANTON, INTENTIONAL OR RECKLESS MISCONDUCT OF THE OPENDATE PARTIES, OR GROSS NEGLIGENCE OF THE Opendate PARTIES IN THOSE STATES THAT DO NOT PERMIT INDEMNIFICATION FOR GROSS NEGLIGENCE.
“THIRD PARTY” INCLUDES, AMONG OTHERS, OTHER USERS OF THE Opendate SITE, YOUR SPOUSE, PARTNER, FAMILY MEMBERS, GUESTS, NEIGHBORS, ROOMMATES, TENANTS, AND EMPLOYEES, AND ANY INSURANCE COMPANY.
Opendate reserves the right to assume the exclusive defense and control of any matter for which you are required to indemnify Opendate and you agree to cooperate with our defense of such claims. You agree not to settle any such claim without Opendate prior written consent.
UNDER[A1] NO CIRCUMSTANCES WILL OPENDATE BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SITE OR SERVICE, OR THE INTERNET GENERALLY, INCLUDING, BUT NOT LIMITED TO: (A) YOUR USE OR INABILITY TO USE THE SITE; (B) ANY CHANGES TO OR INACCESSIBILITY OF THE SITE; (C) ANY DELAY, FAILURE, UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY TRANSMISSION OR DATA; (D) ANY MATERIAL OR DATA TRANSMITTED OR RECEIVED OR NOT TRANSMITTED OR RECEIVED; AND/OR (E) ANY DATA OR MATERIAL FROM A THIRD PERSON ACCESSED ON OR THROUGH THE SITE, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE. SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU. YOUR SOLE AND EXCLUSIVE REMEDY WILL BE LIMITED TO THE TOTAL FEES AND CHARGES PAID BY PARTNER TO OPENDATE AND WILL NOT EXCEED THAT AMOUNT.