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Last Updated: July 28, 2023
THIS TICKETING SERVICES AGREEMENT and the rights and obligations contained in it are in addition to and are incorporated into the Opendate General Terms of Services Agreement (“Terms of Service”) [https://www.opendate.io/master-agreement] and Opendate Privacy Policy (“Privacy Policy”). Nothing in this Ticketing Services Agreement will be interpreted to limit, change, or waive any terms of the Terms of Service or our Privacy Policy. However, if there is any inconsistency between the Terms of Service and this Ticketing Services Agreement, this Ticketing Services Agreement will control. Capitalized terms that are not defined in this Ticketing Services Agreement have the definition provided in the Terms of Service. In addition, the headings and subheadings throughout this Ticketing Services Agreement, including the underlined text following each, are for convenience only and will not restrict or affect any provisions, and are not legal guidance.
BY ACCEPTING OUR AGREEMENT, YOU REPRESENT THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, THE TERMS OF SERVICE, AND THE PRIVACY POLICY, EACH HEREBY INCORPORATED BY REFERENCE, AND EXPRESSLY AGREE TO, AND CONSENT TO BE BOUND BY, ALL OF THE TERMS AND CONDITIONS CONTAINED THEREIN. THIS AGREEMENT SHALL HAVE THE SAME LEGAL EFFECT AND FORCE AS A WRITTEN AND SIGNED DOCUMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS, WE WILL PROMPTLY CANCEL THIS TRANSACTION AND YOU WILL BE UNABLE TO ACCESS THE OPENDATE.IO WEBSITE (THE "SITE") AND THE SERVICES THAT IT OFFERS. WE RESERVE THE RIGHT TO DECLINE YOUR REQUEST FOR SERVICES FOR ANY REASON AND WITHOUT NOTICE.
1. FEES, CHARGES, AND PAYMENT METHODS
1.1 OVERVIEW
(a) Ticketing and Organizer Services. Opendate provides you and other Organizers a platform to sell tickets, including without limitation, registrations and other items, and receive payments for your events (the “Services”). 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.
1.2 PAYMENT PROCESSING
(a) Payment Processor Partners. As part of the Services, we provide tools to help you sell tickets, registrations, and other items to Consumers interested in your events. To facilitate payments for you, we partner with third-party payment processors and/or merchant acquirers (“Payment Processor Partners”). You and we are subject to the rules and regulations of our Payment Processor Partners. In certain cases, you may be required to enter into separate agreements with our partners (“Payment Processor Agreements”) to receive payments. Stripe, Inc. (“Stripe”) is one of our Payment Processor Partners that may facilitate payment processing services for you. When you agree to this Ticketing Services Agreement or continue to operate as an Organizer on Opendate, you also agree to the Stripe Connected Account Agreement and the Stripe Services Agreement. For us to enable payment processing services through Stripe, you must provide us accurate and complete information about you and your business, and you authorize us to share it and transaction information with Stripe.
(b) Opendate Payment Processing. When you use Opendate Payment Processing ("Opendate Payment Processing" or "OPP"), we act as your limited payments agent to facilitate payment transactions on your behalf using our Payment Processor Partners. As a limited agent, we process the total value of tickets, including without limitation, registrations, and other items purchased by Consumers for your events (“Event Proceeds”). In return, in addition to other applicable Opendate Service Fees (set forth on Your order form), you will pay us the Opendate Payment Processing fee (the "Opendate Payment Processing Fee") for each ticket, registration or other item sold or donation solicited, for facilitating the transaction.
(c) Payouts. No later than ten (10) business days after the conclusion of the event, Organizers who use OPP will receive the Event Proceeds, less Fees and Taxes, and Other Deductions and Setoffs, if applicable. At that time, our Payment Processor Partners will facilitate the payout to your preferred payout method. We will not be liable for delayed, rejected, or missed payouts that occur from the delay, failure, or contractual breach by you, a Payment Processor Partner or any other third-party provider.
(d) Payout Methods. OPP users can receive payouts in several ways, including: (1) ACH Direct Deposit to a bank account in their name, and (2) for Organizers with Event Proceeds in USD currency only, by check made out to them to an address in the United States. In addition, our Payment Processor Partners may allow you to accept payments from card-based payment networks, such as Visa®, MasterCard®, American Express®, and Discover® (collectively, the "Card Schemes"), and non-card based payment networks such as direct debit and other alternative forms of payment (the "Alternative Payment Frameworks").
(e) Checks. If we issue you a check, you are responsible for maintaining security and control over it, and you must notify us within 24 hours of learning that the check was lost, stolen or fraudulently obtained. Additionally: (1) Organizer is responsible for all losses if a check we issue to you is lost, stolen or otherwise fraudulently or erroneously obtained; (2) Opendate is entitled to pay any check issued to Organizer, regardless of who presents the check for payment and whether it is lost, stolen or otherwise fraudulently or erroneously obtained or presented; and (3) Organizer will reimburse Opendate for all claims, losses, costs, and damages we incur regarding any check issued to Organizer, including the issued check being cashed or deposited more than once as a duplicate payment.
(f) False or Incorrect Information. Opendate and our Payment Processor Partners rely on the information you provide to facilitate payment transactions on your behalf. If any account or card details that you provide to us or our Payment Processor Partners are incorrect, you must reimburse, indemnify, and hold us and our Payment Processor Partners harmless for any losses or expenses incurred by us relying on the incorrect information.
1.3 ROYALTIES
If requested by Organizer, Opendate will collect an Organizer Royalty fee from Consumers an amount determined by Organizer for all tickets/registrations sold by Organizer via the Opendate Platform through a transaction type indicated in Section 1.2 (each, a “Organizer Royalty”). Opendate will collect the Organizer Royalty at the time of purchase along with the Service Fee. The Opendate Processing Fee applies to the Organizer Royalty.
1.4 REFUNDS
(a) It is the Organizer’s responsibility to set a refund policy and communicate your refund policy to Consumers. You shall ensure that your refund policy complies with Opendate’s Organizer Refund Policy Requirements, which are incorporated into this Ticketing Services Agreement. In the event of canceled or postponed Events, Organizer’s refund policy is superseded by Opendate's refund policy as described in Subsection (ii) below. All communications or disputes regarding refunds are between the Organizer and the Consumer, and Opendate will not be liable for any decision to issue or not issue refunds.
(i) Individual Refunds. If a Consumer desires to request a refund, the Consumer must request the refund from the Organizer. If the Organizer desires to fulfill the request, the Organizer can utilize the Services to process the refund. Opendate will use commercially reasonable efforts to process refunds issued and requested to be issued by the Organizer in a timely manner after the Organizer authorizes the issuance of the refunds. Opendate has no responsibility to provide individual refunds which have not been authorized by the Organizer in accordance with this provision. In addition, Opendate will NOT issue any refund to a Consumer unless and until sufficient funds for the refund have been received from the Organizer.
(ii) Canceled or Rescheduled Events. No payments shall be made to an Organizer from Opendate with respect to any Event that is cancelled (or for which the Organizer otherwise authorizes a refund). If an Event is canceled, a refund shall be issued to Consumers. 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.
(b) 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 Consumers 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 Consumers with respect to an Organizer or the applicable Event, or Opendate determines in its sole discretion that the Organizer has engaged in any fraudulent activity or made any misrepresentations. Opendate shall have no liability whatsoever to an Organizer in connection with or arising from any such decision to force or provide refunds.
1.5 CREDIT CARD CHARGEBACKS
(a) Credit card chargebacks and transaction reversals (collectively, “Chargebacks”) can occur, including when a Consumer disputes a transaction with a Card Scheme or Alternative Payment Framework. As an Organizer, you are responsible for paying and reimbursing Opendate promptly and fully for any Chargebacks in connection with your Event Proceeds or other payments and for all related credit card association, payment processing, re-presentment, penalty and other fees (together with Chargebacks, “Chargeback Costs”) that we, our Payment Processor Partners, or any of our other partners incur in connection with your Chargebacks. Opendate reserves the right to suspend or terminate your account for what Opendate determines in its sole discretion to be excessive Chargebacks. For the avoidance of doubt, suspension or termination of your account does not relieve you of your obligations under the agreement.
(b) As your agent, we will use commercially reasonable efforts to manage and dispute Chargebacks on your behalf. You authorize us to do so, and you will cooperate in the Chargebacks re-presentment process. However, we have no obligation to dispute or represent any Chargebacks that: (i) we determine we are more likely than not to lose; or (ii) should be refunded in accordance with your event refund policy. The Payment Scheme Rules (defined below) provide discretion to the Card Schemes and Alternative Payment Frameworks in managing Chargebacks, and if Opendate loses a Chargeback dispute initiated on Organizer’s behalf, Organizer is still required to reimburse Opendate.
(c) Any credit card chargebacks initiated by a Consumer for any reason with respect to an Event shall be charged back to the Organizer. Opendate in its sole discretion shall either (i) deduct these costs from such Organizer's outstanding balance, whether for that particular Event or for any other Event that such Organizer lists through the Services; (ii) send an invoice to such Organizer for such costs if no balance exists; or (iii) charge the chargebacks to Organizer’s 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 Organizer's registration for the Services and to cancel all other Events listed by such Organizer as provided herein. Opendate shall have no liability whatsoever for any damages, claims or losses incurred by an Organizer 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 Organizer and Consumer, 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 $30.00 fee per lost Chargeback to cover associated card fees.
1.6 PAYMENT SCHEME RULES
(a) Organizer must comply with the rules and regulations published by the Card Schemes and Alternative Payment Frameworks (collectively, the “Payment Scheme Rules”). Depending on the payment methods that you use with OPP, you may be subject to different Payment Scheme Rules.
(b) The Payment Scheme Rules require, among other things, that you (i) submit only bona fide transactions, (ii) limit how you use Card Scheme logos and trademarks and (iii) authorize the Card Scheme and its affiliates to use your name, address and URL to show that you participate in the Card Scheme.
The Payment Scheme Rules are publicly available for you to review and may change from time to time. We may also be required to update this Ticketing Services Agreement to reflect changes to the Payment Scheme Rules.
1.7 CONFIRMATION
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 the Organizer’s responsibility to verify the applicable Consumer's membership status, confirmation number and/or any Event restrictions prior to the subject Event. If Opendate learns that Organizer is not honoring Opendate’s ticketing commitments, we reserve the right, in our sole discretion, to terminate Organizer’s account without liability or further obligation.
2. COLLECTION COSTS
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.
3. TAXES; WITHHOLDING
(a) You are solely responsible for determining which, if any, sales, use, amusement, value added, consumption, excise and other taxes, duties, levies and charges (collectively, “Taxes”) apply to your use of the Organizer Services and to sales you make using the Organizer Services. It is your sole responsibility to, and you shall, collect and remit the correct amounts of all such Taxes to the applicable government authorities (“Tax Authorities”). Opendate does not represent, warrant or guarantee that any tax tools or tax calculators (“Tax Tools”) that we may provide to you will meet all tax requirements that may be applicable to you or that such Tax Tools will result in your collection or remittance of all applicable Taxes. Taxes may vary based on the nature of your event, the nature of your tax status (individual, entity, business, consumer, etc.), your location, the location of your Consumers, credits and deductions for which you may qualify and other factors. You release us from any and all liability with respect to your use of any Tax Tools. None of the Tax Tools should be considered legal or tax advice.
(b) If you do collect Taxes and use Opendate Payment Processing, then subject to Sections 3.1, and 3.2, we will pay such amounts to you at the same time as the applicable Event Proceeds. You are responsible for remitting all such Taxes to the appropriate Tax Authorities. If you use any Tax Tools that require you to input a tax registration number, you represent and warrant that such tax registration number is true and correct. We cannot give you legal or tax advice, so please be sure to check with your own legal and/or tax advisor about any applicable Taxes. If a Tax Authority requires us to pay any Taxes attributable to your use of the Organizer Services or to sales that you make using the Organizer Services, you must promptly and fully reimburse us for such Taxes upon demand, plus all associated costs, penalties, interest and expenses.
3.1 REQUEST FOR INFORMATION
Notwithstanding what is stated in Section 3, Opendate may, in certain jurisdictions, be required to collect and remit Taxes relating to your sales of tickets, registrations, or other items that are made using the Organizer Services. To determine whether we must collect any Taxes on your behalf, we may request certain information when you create an event using the Organizer Services. Such information may relate to your tax-exempt status, the nature of your event and/or other similar information. If we request such information, you represent and warrant that the information you provide is true and correct. We cannot give you legal or tax advice, so please be sure to check with your own legal and/or tax advisor about any information you provide through the Opendate platform. If a Tax Authority requires us to pay any Taxes attributable to your event as a result of the information you provided us being incorrect, you must promptly and fully reimburse us for such Taxes upon demand and all associated costs, penalties, interest and expenses.
3.2 COLLECTION BY OPENDATE
Notwithstanding what is stated in Section 3, Opendate may, in certain jurisdictions, be required to collect and remit Taxes on Opendate Fees and Opendate Payment Processing Fees to the Tax Authorities. In such jurisdictions, we will collect from you Taxes on Opendate Fees, and you must pay such Taxes. We may, at our sole election, invoice you for Taxes on Opendate Fees or withhold (from amounts we would otherwise pay to you) the amount of Taxes on Opendate Fees. With the exception of Taxes on Opendate Fees that we collect from you pursuant to this paragraph and Taxes collected and remitted pursuant to Section 3.1, you remain responsible for collecting and remitting the correct amount of any Taxes that apply to your use of the Services and to sales you make using the Services.
4. EVENT RESTRICTIONS
When creating your Event in Opendate, it is the Organizer’s 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 Organizer upon creation of the event. It is the Organizer’s 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 creating the Event in Opendate. It is also Organizer’s responsibility to verify that all customers can be admitted to and/or view your Event, as applicable.
5. ACCESS; SAFEGUARDS
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.
6. EXCLUSIVITY
Organizer, on behalf of itself and its Affliates, hereby appoints Opendate as the sole and exclusive provider during the term of the Order Form for: (i) all events at Venues (including events promoted by third parties), including without limitation, the Venues listed in the Order Form, and (ii) all other Events. During the Term, Organizer will not (A) 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 Organizer 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 Organizer’s and its Affiliates’ exclusivity obligations will continue in full force and effect after such change. For the avoidance of doubt, any breach by Organizer of this “Exclusivity” Section of the Agreement will be deemed material and incurable.
7. 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 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.
8. USE RESTRICTIONS
(a) You will not use the Opendate Platform or Service for unlawful purposes.
(b) 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 Platform or Service.
(c) You will not engage in data mining or similar data gathering or extraction activities or retrieve data or other content from the Opendate Platform or Service for purposes of creating or compiling that content for any purpose other than your authorized use of the Opendate Platform or Service as permitted by this Agreement.
(d) You will not access, use, or copy any portion of the Opendate Platform or Service, including any of its content, through the use of indexing agents, spiders, scrapers, bots, web crawlers, or other automated devices or mechanisms.
(e) You will not use the Opendate Platform 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 Platform or Service or any computers, hardware, software, system, data, or networks.
(f) You will not engage in activities that aim to render the Opendate Platform or Service or associated services inoperable or to make their use more difficult.
8.1 PROHIBITED MERCHANTS, EVENTS, AND TRANSACTIONS
(a) Prohibited Merchants. By registering for the Organizer Services and accepting this Ticketing Services Agreement, you represent and warrant that:
(i) you are not located in, and you are not a national or resident of, any country for which the United States, United Kingdom, European Union, Australia or Canada has embargoed goods and/or services similar to our Services (“Restricted Countries”); (ii) you are not a person or entity or under the control of or affiliated with a person or entity that:
(iii) you are not listed in the MasterCard MATCH terminated merchant database or Visa terminated merchant file and your right to access each Card Scheme and each Alternative Payment Framework is not revoked or suspended.
If we determine that you fall into any of the categories above, you are a “Prohibited Merchant.”
(b) Prohibited Events. You may not post events to the Opendate Platform or engage in activities through the Services that: (i) violate or help violate any applicable local, state, provincial, national or other law, rule or regulation; (ii) are prohibited under the Payment Scheme Rules; or (iii) contain any Content that violate the Terms of Service.
If we determine that an event falls into any of the categories above, it is a “Prohibited Event.”
(c) Prohibited Transactions. You may not process any of the following transactions, and you represent and warrant that you will not submit for processing any of the following: (i) any transaction that violates or is considered “high risk” (or any other restricted category) by the Payment Scheme Rules, including any transaction involving certain adult content or activities, illegal goods or services (including cannabis), paraphernalia associated with any illegal goods or service, crypto-currency purchases, raffles, sweepstakes, or gambling; (ii) any fraudulent criminal transaction; or (iii) any transaction that is unrelated to your events on the Opendate platform. For clarity, our ticketing and payment processing services may only be used for the purchase of tickets and registrations for your events on the Opendate platform, or to sell items or solicit donations directly related to such events.
If we determine that a transaction falls into any of the categories above, it is a “Prohibited Transaction.”
9. DISCLAIMER OF WARRANTIES
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.
10. INDEMNITY FOR THIRD-PARTY ACTIONS
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’s prior written consent.
11. LIMITATION OF LIABILITY
UNDER 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 ORGANIZER TO OPENDATE AND SHALL NOT EXCEED THAT AMOUNT.
12. NON-EXCLUSIVE REMEDIES AND COLLECTIONS
(a) Interest on Overdue Amounts. Overdue amounts that Organizer or your Affiliates owe under this Ticketing Services Agreement or any other agreement between the parties will bear interest calculated from the due date until paid in full, at a rate equal to the lesser of:
i. one percent (1%) per month, compounded monthly; or
ii. the maximum amount permitted by applicable law.
(b) Setoffs and Invoices. If Organizer or any of your Affiliates owe us any amounts under this Ticketing Services Agreement or any other agreement between the parties, we may, to the extent allowed by applicable law:
i. withhold and/or set-off any amounts that we would otherwise pay to you or any of your Affiliates; and/or
ii. send an invoice to you or any of your Affiliates for overdue amounts, to the extent that the amount we could withhold is insufficient to cover the amounts you owe us, in which case you or any of your Affiliates will pay the invoice within thirty (30) days after the date of the invoice.
(c) Non-Exclusive. Our rights and remedies in this Ticketing Services Agreement are non-exclusive (that is, our remedies are cumulative and any can be exercised by us in addition to, and do not prevent us from exercising, any other rights or remedies available to us now or in the future under law, this Ticketing Services Agreement, any Affiliated Agreements, other agreements, or otherwise). Our failure or delay in enforcing or exercising any right, remedy or provision of this Ticketing Services Agreement will not be considered a waiver of those rights.
13. COLLECTIONS AND COSTS OF RECOVERY
We have the right to pursue collection of any late and unpaid amounts due to us if such amounts are not paid within thirty (30) days after the date of the invoice. We have the right to send you collection notices; sending such a notice will not be a requirement for taking legal or other action to collect overdue sums. In addition, you must promptly reimburse us upon demand for all out-of-pocket costs (including reasonable attorneys' fees and costs) incurred by us in collecting overdue amounts or any other amounts that you or any of your Affiliates owe under this Ticketing Services Agreement or any Affiliated Agreement. Organizer and your Affiliates agree that if we must seek recovery of past due amounts and associated fees and costs, Opendate has the right to pursue unpaid amounts through judicial proceedings, and such actions will not be arbitrated regardless of any arbitration provisions in the Terms of Service.
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