Terms and Conditions


BACKGROUND


FestivalPro is a cloud-based event management and ticketing software provider allowing you to manage and run your event more effectively. This document sets out the terms (“Terms”) under which FestivalPro will provide Services to the Organiser.

These Terms are supplemented by the Service Level Agreement and the Order Confirmation Form which set out specific details relating to Services requested by the Organiser.

Festival Pro Ltd of R.A.D. Labs, 64 Cropley Street, London, N1 7GX ("FestivalPro"). Registered in England and Wales (Company Registration 11678635)


TERMS FOR SUPPLY OF SERVICES

1. DEFINITIONS

1.1. In these Conditions, the following expressions will have the following meanings, unless inconsistent with the context:
  • "Agreement" means the agreement between FestivalPro and the Organiser for the provision of Services formed by these Conditions, the Service Level Agreement and the Order Confirmation form(s)
  • "Ancillary Systems" means any Software and/or Equipment
  • "Associated Company" means in respect of either party, a subsidiary or holding company of that party or any subsidiary of such holding company and the terms
  • "subsidiary" and "holding company" will have the meanings given to them by sections 736 and 736A Companies Act 1985
  • "Business Day" means a day which is not a Saturday or Sunday or public or bank holiday in England and Wales
  • "Business Hours" means 9am to 6pm (London/UK) on each Business Day
  • "Confidential Information" means all know-how, experience, drawings, designs, circuit diagrams, flow charts, computer programs and all other technical information which might reasonably be of commercial interest to a party hereto together with all other information which is of a confidential nature and relates to the business, products, customers, suppliers or pricing of a party hereto (including proposed or anticipated products, customers, suppliers or pricing) and Confidential Information shall include (without limitation):
    • a) in the case of FestivalPro’s Confidential Information, the HA Materials; and
    • b) in the case of the Organiser's Confidential Information, all Organiser's Data.
  • "Consultancy Services" : means such consultancy services (if any) as FestivalPro agrees to provide and the Organiser agrees to accept during the Term
  • "Defect" means any defect in systems having a material effect on the Organiser's use or operation of the Services or any failure by any Ancillary System
  • "Downtime" means a period during Hosted Application Hours during which there is total loss of the Services
  • "Equipment" means any hardware, cabling and/or other equipment provided to the Organiser by FestivalPro in connection with the Agreement
  • “Event Registration Fee” means the total price the Customer pays including any Booking Fee
  • "Fees" means the charges due to FestivalPro under the Agreement in relation to the Services and/or product, as set out on the Order Confirmation form(s) "FestivalPro":
  • "FestivalPro Hardware" means the hardware used by FestivalPro and under its control to provide the Services including any computer hardware acting as system server(s) and which hardware may be modified added to or replaced during the currency of this Agreement provided that the performance thereof is not thereby caused to degrade
  • "FestivalPro Provided Equipment" means equipment provided by FestivalPro and installed at the Organiser's Site for the purposes of enabling the Organiser to use the Services and which equipment is specified as the FestivalPro Provided Equipment in The Order Confirmation Form
  • "HA Materials". means the System (including the software and its operating instructions) and related user manuals, and training materials provided by FestivalPro
  • "HA Proprietors" means all persons who own the Intellectual Property Rights in the Hosted Applications or who have licence rights in the Hosted Applications or any part or parts thereof and which licence rights are superior to the licence rights of FestivalPro and the Organiser
  • "Intellectual Property Rights" means any and all patents, trademarks, service marks, copyright, moral rights, rights in design, know-how, Confidential Information and all or any other intellectual or industrial property rights whether or not registered or capable of registration and whether subsisting in the United Kingdom or any other part of the world together with all or any goodwill relating to the same
  • "Month" means a calendar month and "monthly" shall be construed accordingly
  • "Netiquette" means generally accepted standards and codes of practice for use of the internet including not sending bulk unsolicited email, mail bombing or impersonating another person
  • "Network" means a network comprising all or any of the following, namely, modems, leased circuits and other communications hardware and software and which may be modified added to or replaced during the term of this Agreement provided that the performance thereof is not thereby caused to fall materially below the agreed specifications
  • "Order Confirmation Form" means the order for the provision of the Services and/or products required by the Organiser, submitted to FestivalPro by email or in writing
  • "Organiser Data" means all data processed by FestivalPro or provided to FestivalPro by Organiser for processing or otherwise processed as part of the Services including, but not limited to, data generated by the website from visitor input
  • "Organiser Materials" means data, text, images, graphics, videos, logos and other content and material, hardware or equipment provided by the Organiser in connection with the Agreement for use by FestivalPro in providing the Services
  • "Organiser System" means the Organiser's computer system upon which the Software is loaded or otherwise in connection with which the Services are provided
  • "Services" means those development, implementation, consultancy, hosting and other services (if any) provided to the Organiser pursuant to the Agreement, as described on a relevant Order Confirmation Form, together with any Support Services. The Services to be provided by FestivalPro hereunder as the same may be modified, added to or replaced during the Term and in accordance with the provisions of this Agreement
  • "Service Interruption" means a period during which there is partial loss of the Services
  • "Service Levels" means the levels of performance to which the Services and the Support Services are to be provided to the Organiser by FestivalPro as set out in the Service Level Agreement
  • "SLA (Service Level Agreement)" means the level of performance to be provided by FestivalPro to the Organiser in respect of the Services, as set out on the Order Confirmation Form(s)
  • "Software" means any communications or other software provided to or made available to the Organiser by FestivalPro in connection with the Agreement, but excluding Third Party Software
  • "Support Hours" means the hours during which FestivalPro will provide the Support Services, as set out on a relevant Order Confirmation Form
  • "Support Services" means those support and maintenance services provided to the Organiser pursuant to the Agreement, as described on a relevant Order Confirmation Form
  • "System" means the Hosted Applications, the FestivalPro Hardware and the Network as the same operate together in the provision of the Services
  • “Term" means the effective term of this Agreement
  • "Third Party Software" means any software identified as third party software (if any) to be provided to the Organiser pursuant to the Agreement, as set out in a relevant Order Confirmation Form

2. INTERPRETATION

2.1. The headings used in the Agreement are inserted for convenience only and are not intended to be part of nor to affect the meaning or interpretation of any of the Agreement.

2.2. In the Agreement the masculine includes the feminine and the neuter, and the singular includes the plural and vice versa as the context shall admit or require.

2.3. The expression "person" means any individual, firm, body corporate, unincorporated association, partnership, government, state or agency of a state or joint venture.

2.4. In the event of a conflict between any of these Terms and any Order Confirmation Form or Service Level Agreement, the conflict will be resolved according to the following order of priority: Order Confirmation Form, Service Level Agreement and then these Terms.

2.5. The words "include", "includes", "including" and "included" will be construed without limitation unless inconsistent with the context.

2.6. The Agreement (as varied in accordance with its terms) forms the entire understanding of the parties in respect of the matters dealt within it and supersedes all previous agreements, understandings and negotiations between the parties.

2.7. The parties do not intend that any of the terms of the Agreement will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not party to it.

2.8. References in these Terms to clauses means clauses of these Terms. References in these Terms to the provisions of statutes or statutory instruments are deemed to include those provisions as amended or substituted from time to time.

2.9. References in this Agreement to any party shall include its respective heirs’ successors in title permitted assigns and personal representatives and this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors.

3. SERVICE PROVISION

3.1. The Services are described in full on the Order Confirmation Form(s).

3.2. FestivalPro will use its reasonable endeavours to provide the Services in accordance with any timescale set out on the Order Confirmation Form(s) (if any), but will not be liable to the Organiser whereit fails to meet any timescale set out in any Order Confirmation Form.

3.3. FestivalPro will not be liable for any failure to provide the Services where that failure is as a result of any breach by the Organiser (or its employees, agents or subcontractors) of the Agreement.

3.4. FestivalPro cannot provide the Services where the Organiser makes use of particular systems including communications systems not identified in writing by FestivalPro.

3.5. FestivalPro may at any time and from time to time improve, correct or otherwise modify all or any of the Services (including substituting Software and/or Equipment with software or equipment of similar specification) provided that such modification does not materially affect provision of the Services to the Organiser. FestivalPro will give the Organiser 14 days’ notice of any non-urgent modifications.

3.6. FestivalPro, may from time to time, suspend provision of all or part of the Services for the purpose of maintaining or upgrading FestivalPro’s IT systems (“Suspension”). Festival Pro will provide 14 days’ notice of any Suspension under this clause 3.6 in writing, at least 14 days in advance of any Suspension. FestivalPro will use its best endeavours to ensure that such Suspension will occur outside any Business Hou

3.7. Without prejudice to its other rights and remedies, FestivalPro may at its sole discretion suspend the provision of the whole or any part of the Services (temporarily or permanently) and will have no liability to provide the Services on the occurrence of any of the following events:

3.7.1. issue by any competent authority of an order which is binding on Festival Pro which affects the Services;

3.7.2. if the Organiser fails to pay any Fees or any other sums owing to FestivalPro by the Organiser when they fall due and where 24 hours’ notice of intention to suspend the service has been given;

3.7.3. an event of force majeure occurs (as defined in clause 11);

3.7.4. if the bandwidth or computer memory used by the Organiser in relation to the Services exceeds any agreed or stipulated level and FestivalPro determines in its sole discretion that suspension is necessary to protect all and any internet solutions provided by FestivalPro from time to time;

3.7.5. failure or deficiencies in the Organiser System including, but not limited to, hardware, server corruption and security breaches. Where FestivalPro suspends provision of the Services in accordance with clause; or

3.8. If Services are suspected by FestivalPro under clause 3.7.2,FestivalPro will only be obliged to recommence provision of the Services and once the Organiser has paid all relevant outstanding sums in clear funds together with any relevant reinstatement fee (up to one month fees) and has accepted any revised payment terms requested by FestivalPro (such as payment by direct debit).

3.9. The Organiser acknowledges that, given the nature of such Services, FestivalPro cannot guarantee that the Services, when delivered via the internet, will be uninterrupted or error free.

3.10. To the fullest extent permitted by law and save as provided elsewhere in the Agreement, the Services and any Organiser Systems and Ancillary Systems are provided by FestivalPro to the Organiser on an "as is" and "as available" basis and no warranty or representation (express or implied) of any kind are given in connection with the Agreement including as to satisfactory quality and fitness for a particular purpose. In particular, FestivalPro gives no warranty or representation that:

3.10.1. the Services will meet the Organiser's requirements;

3.10.2. the Services will be provided on an uninterrupted, timely, secure or error-free basis; or

3.11. FestivalPro warrants that it will provide the Services with reasonable care and skill and in accordance with the SLA and up to the standard expected from a professional ticketing company. FestivalPro will not be liable for a breach of such warranty unless the Organiser notifies FestivalPro in writing of such failure within 14 days of the Organiser becoming aware of the failure.

4. CLIENT OBLIGATIONS

4.1. The Organiser agrees that it will:

4.1.1. provide to FestivalPro the necessary Organiser Materials within a reasonable time period taking account of the obligations of FestivalPro under the Agreement

4.1.2. supply in a timely manner all information, instructions, review and feedback reasonably required by FestivalPro in connection with the performance of its obligations under the Agreement;

4.1.3. appoint a representative who is fully empowered and authorised to provide the same;

4.1.4. Immediately notify FestivalPro on becoming aware of any unauthorised use of all or any of the services and/or relevant part of the Organiser System;

4.1.5. not use the Services, Ancillary Systems and/or Organiser System or allow them to be used for any unlawful purpose or for the publication, linking to, issue or display of any unlawful material (including any pirated software or any material which is obscene, pornographic, threatening, malicious, harmful, abusive, defamatory or which breaches the rights including Intellectual Property Rights of any third party or which is or encourages criminal acts or contains any virus, worm, trojan horse or other harmful code) whether under English law or regulation, the laws or regulations of the Organiser's country or any other place where the results of such purpose or the material in question can be accessed;

4.1.6. not use the Services, Ancillary Systems and/or Organiser System or allow them to be used for the publication, linking to, issue or display of any material which in the absolute discretion of FestivalPro may harm FestivalPro or any of its Associated Companies or clients or bring FestivalPro into disrepute or which calls into question any action taken by FestivalPro on the Organiser's behalf;

4.1.7. not use the Services, Ancillary Systems and/or Organiser System or allow them to be used in breach of good Netiquette practices;

4.1.8. remove or prevent access to any material hosted on any of the Equipment and/or Organiser System which causes or is likely to cause the Organiser to be in breach of the Agreement;

4.1.9. ensure that it has all necessary consents, permissions and licences to make use of the Services including registration and appropriate consents and approvals under the Data Protection Act 2018;

4.1.10. not provide any technical or other information obtained from FestivalPro and/or relating to the Services to any person which the Organiser is aware or ought reasonably be aware may directly or indirectly lead to a breach of any law or regulation;

4.1.11. not, in breach of good Netiquette practices, use any service provided by any third party (including an internet web site and/or email) for the publication, linking to, issue or display of any material which refers to an internet web site hosted by FestivalPro or any other products or services offered by FestivalPro from time to time without FestivalPro' prior written consent;

4.1.12. ensure that all material or data hosted by FestivalPro on any web site operated by the Organiser from time to time or communicated through such site or using the Organiser System is checked for viruses and other harmful code and has appropriate security patches applied;

4.1.13. comply with any security policy notified to it from time to time by FestivalPro and, in particular, ensure that all passwords and user names provided to it by FestivalPro or user name has become known to someone not authorised to use it or is being or is likely to be used in an unauthorised way or of any other breach of security then the Organiser will inform FestivalPro immediately;

4.1.14. be entirely liable for all activities conducted and charges incurred under its passwords and user names whether authorised by it or not and the Organiser acknowledges that FestivalPro shall not be liable for any loss of confidentiality or for any damages arising from the Organiser's inability to comply with these Conditions;

4.1.15. ensure that all communication details which it provides to FestivalPro are at all times true, current, accurate and complete. The Organiser will promptly notify FestivalPro of any change to such details and acknowledges that FestivalPro will not be liable for any loss suffered or incurred by the Organiser as a result of its failure to notify such changes to FestivalPro; and

4.1.16. ensure that its systems (including the Organiser System) meet any minimum system specifications notified to the Organiser from time to time.

4.2. The Organiser acknowledges that it has appropriate knowledge of how the internet functions, the systems and products provided to it in connection with the Agreement and what types of use and content are and are not acceptable, some of which are referred to in clause 4.1.4. The Organiser acknowledges that FestivalPro shall have no obligation to:

4.2.1. train the Organiser on its use of the Services or any Ancillary System;

4.2.2. manipulate any material which the Organiser wishes to and/or does post on any web site or other system it operates (including any Organiser System) or any communication which it issues or sends in connection with any Services; or

4.2.3. validate or vet such material for usability, legality, content or correctness.

4.3. The Organiser warrants that the Organiser Materials will be accurate in all material respects and will not knowingly include material which is illegal, the accessing holding transmitting or supplying of which would be a criminal offence or which is otherwise unlawful or in breach of any applicable law or code of practice applying to such materials. In particular, the Organiser warrants that all necessary licences, consents and waivers (including those from rights owners, performers and other contributors) are obtained and paid for by the Organiser. Without prejudice to the foregoing, FestivalPro may decline to use any Organiser Materials on any reasonable grounds.

4.4. The Organiser will promptly provide to FestivalPro and/or its consultants, employees and agents such information and assistance as they may reasonably require in order to be able to carry out the Services and, where relevant, deliver and install any Ancillary Systems.

4.5. The Organiser will procure all necessary rights from third parties (including intellectual property licences of computer software and website content including video and music) which are from time to time required in order for FestivalPro to be able legally to provide the Services.

4.6. If, in FestivalPro' opinion, the Organiser is in breach of the provisions of clauses 4.1to 4.5then FestivalPro may without prejudice to its other rights and remedies immediately by written notice to the Organiser:

4.6.1. suspend provision of the Services;

4.6.2. terminate the Agreement; or Networks; or

4.6.3. amend or remove any Organiser Materials and/or content appearing on any website or other system hosted by FestivalPro on behalf of the Organiser (including any Organiser System or Ancillary System). FestivalPro may also notify appropriate public authorities (governmental or otherwise including the police or other enforcement authority) of any such breach, where it deems necessary.

4.7. Where as part of the Services the Organiser is entitled (having obtained FestivalPro's prior written consent) to resell the whole or any part of the Services to a third party then the Organiser will:

4.7.1. procure such third party's compliance with and acceptance of these Terms;

4.7.2. be fully responsible for the acts and omissions of any such third party; and

4.7.3. indemnify FestivalPro for any losses it suffers as a result of acts or omissions under clause 4.7.2.

5. PAYMENT TERMS

5.1. Fees payable monthly or yearly will be paid in advance and will not be refundable in whole or part if the Agreement or relevant part is terminated during the period to which the payment relates any set up fee will (unless stated to be included within later payments) be payable immediately.

5.2. The Organiser agrees to pay FestivalPro' invoices within 30 days of invoice due date. If invoices are not settled in full by then, the Organiser will without prejudice to its other rights and remedies (including the right to suspend the Services under clause 3.8.3) be liable to pay interest on any sum outstanding from the due date for payment at the annual rate of 2% above the base lending rate from time to time of Lloyds Bank plc accruing on a daily basis until payment is made whether before or after any judgement.

5.3. All sums payable to FestivalPro under the Agreement must be paid in full with no set-off or deduction.

5.4. Without prejudice to any other of its rights and remedies, FestivalPro will be entitled to remove the Organiser's data from its systems and any Equipment and/or put the Equipment to any use other than the Organiser's if any amount due under the Agreement is not paid within 30 days of its due date for payment. FestivalPro is not required to back up such data and will return the Organiser data (at the Organiser’s cost) in a manner agreed between the parties to the Organiser prior to any such removal or following termination of the Agreement.

5.5. All monies received from Organisers are treated as payment into an Organiser's account with respect to any liabilities.

5.6. FestivalPro reserve the right to use any monies received as credit against any outstanding liabilities even if such monies were intended (either explicitly or not) as credit against a particular invoice, project or any undertaking by FestivalPro on behalf of an Organiser.

5.7. SMS, disk storage, bulk email and booking fee charges are payable at end of billing period or prior to billing period if these services are part of included contract.

6. CONFIDENTIAL INFORMATION

6.1. Each party will (unless contrary to law):

6.1.1. keep Confidential Information obtained from the other under or in connection with the Agreement confidential;

6.1.2. not disclose any Confidential Information to any third party without the prior written consent of the other except to such persons and to such extent as may be strictly necessary for the performance of the Agreement; and

6.1.3. not use any Confidential Information otherwise than for the purposes of the Agreement.

6.2. The provisions of clause 6.1 do not apply to Confidential Information which:

6.2.1. is or becomes public knowledge (otherwise than by breach of this clause);

6.2.2. was in the possession of the party concerned without restriction as to its disclosure before receiving it from the disclosing party; or

6.2.3. is received from a third party who lawfully acquired it and who is under no obligation restricting its disclosure; and nothing in this clause 7 prevents either party from disclosing any Information for a proper purpose to a public authority or any regulatory body, or to a court of law in the United Kingdom or elsewhere in legal proceedings, or to its senior management, its auditors, bankers, lawyers or other professional advisers.

6.3. The provisions of this clause 6 will continue to apply notwithstanding termination of the Agreement.

6.4. The Organiser, by entering into the Agreement, consents to FestivalPro sending to the Organiser by whatever means the Company deems appropriate (whether by email or otherwise) information concerning new products and other services that FestivalPro and its Associated Companies may from time to time offer.

7. INTELLECTUAL PROPERTY

7.1. The Organiser acknowledges and agrees that it will not own or acquire ownership of any Intellectual Property Rights in or relating to the Services or created in performing the Services and that it will have no rights in or to the Services other than the rights expressly granted by the Agreement.

7.2. The Organiser will indemnify and keep FestivalPro indemnified from and against all costs (including the costs of enforcement), expenses, liabilities (including any tax liability), injuries, losses, damages, claims, demands, legal costs (on a full indemnity basis) and judgements which FestivalPro incurs or suffers as a consequence of infringement of any Intellectual Property Right of any third party arising directly or indirectly from:

7.2.1. the provision by FestivalPro of Services making use of information or specifications supplied by the Organiser;

7.2.2. the Organiser's failure to procure all necessary rights from third parties which are from time to time required in order for FestivalPro to be able legally to provide the Services; or

7.2.3. the use by FestivalPro in connection with the Agreement of the Organiser System and the Organiser Materials.

7.3. No Intellectual Property Rights created or acquired by FestivalPro will transfer or be assigned to the Organiser unless FestivalPro and the Organiser have signed a written assignment document to that effect.

8. LIABILTY

8.1. The provisions of this clause 8 and the provisions of clause and 24 set out the entire liability of FestivalPro (including any liability for the acts or omissions of its consultants, employees, agents and authorised representatives) to the Organiser in respect of:

8.1.1. any breach of the Agreement; and

8.1.2. any representation, statement or tortious act or omission including negligence arising under or in connection with the Agreement.

8.2. Nothing in the Agreement excludes or limits the liability of FestivalPro for death or personal injury caused by the negligence of FestivalPro or fraud.

8.3. Subject to clauses 8.2 the total liability of FestivalPro in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of the Agreement is limited to:

8.3.1. £10,000 for loss of or damage to tangible property; and

8.3.2. for any other kind of loss, one and a quarter times the amount of sums paid by the Organiser to FestivalPro pursuant to the Agreement (excluding VAT and expenses) during the preceding 12 month period.

8.4. FestivalPro will not be liable to the Organiser in contract, tort, misrepresentation or otherwise (including negligence), for any indirect or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever, or for any loss of profit, loss of business, loss of contract, depletion of goodwill or otherwise (whether direct or indirect), and whether or not caused by the negligence of FestivalPro or its employees, agents or authorised representatives, which arises out of or in connection with the Agreement.

8.5. The Organiser acknowledges that the allocation of risk in the Agreement reflects the price paid for the Services and that it is not within the control of FestivalPro how or for what purposes they are used.

9. ORGANISER INDEMNITY

9.1. The Organiser will fully indemnify and keep FestivalPro and its Associated Companies, officers, partners, employees and agents fully indemnified from and against all actions, demands, costs (on a full indemnity basis), losses, penalties, damages, liability, claims and expenses (including legal fees) whatsoever incurred by it and arising from any of the following:

9.1.1. the Organiser's breach of the Agreement, negligence or other default;

9.1.2. the operation or break down of any IT systems owned or used by the Organiser including the Organiser System but not the Equipment; or

9.1.3. the Organiser's use or misuse of the Services.

10. FORCE MAJEURE

Neither party is under any liability to the other party in respect of anything which, apart from this provision, may constitute a breach of the Agreement arising by reason of force majeure which means, in relation to either party, circumstances beyond the reasonable control of that party including acts of God, acts of any governmental or supra-national authority, war or national emergency, riots, civil commotion, fire, external network failure, external systems fault, illegal use of or access to the IT systems of FestivalPro or the Organiser (hacking), explosion, flood, epidemic, lockouts (whether or not by that party), strikes and other industrial disputes (in each case, whether or not relating to that party's workforce), restraints or delays affecting shipping or carriers, inability or delay in obtaining supplies of adequate or suitable materials and currency restrictions, to the extent outside of its reasonable control.

11. TERM AND TERMINATION

Without prejudice to the remaining provisions of this clause 11 and any other rights and remedies available to FestivalPro:

11.1. FestivalPro will provide the Services for the period of 36 months from the date of the relevant Order Confirmation Form or, where different, any other period of supply stated on the Order Confirmation Form (such period being termed the "Initial Period") and will continue beyond that period, subject to termination by:

11.1.1. the Organiser upon serving 30 days' written notice on FestivalPro at any time after the Initial Period;

11.1.2. FestivalPro serving 30 days' written notice on the Organiser to expire at any time after the Initial Period; or

11.1.3. the Organiser serving 30 days’ written notice if the Services consistently falls below the standard reasonably expected from a professional ticketing provider.

11.2. FestivalPro may immediately terminate the Agreement (or at its option, any part of it) by notice in writing to the Organiser if the Organiser fails to pay to FestivalPro any sum due under the Agreement thirty days after the due date for payment after giving two clear Business Days’ notice of its intention to do so.

11.3. Either party may terminate the Agreement (or, at its option, any part of it) forthwith by notice in writing to the other if the other party:

11.3.1. is in material breach of the Agreement and fails (where the breach is capable of remedy) to remedy the breach within 30 days of the receipt of a request in writing to remedy the breach, such request setting out the breach and indicating that failure to remedy the breach may result in termination of the Agreement;

11.3.2. becomes the subject of a voluntary arrangement under section 1 of the Insolvency Act 1986;

11.3.3. is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

11.3.4. has a receiver, manager, administrator or administrative receiver appointed over all or any parts of its undertaking, assets or income, has passed a resolution for its winding-up, or has a petition presented to any court for its winding-up or for an administration order; or

11.3.5. has ceased or threatened to cease to trade.

12. CONSEQUENCES OF TERMINATION

12.1. Termination of the Agreement is without prejudice to the rights and duties of either party accrued prior to termination.

12.2. The clauses of the Agreement which expressly or impliedly have effect after termination will continue to be enforceable notwithstanding termination.

12.3. FestivalPro may without notice remove the Organiser's data from its systems and any Equipment after expiry of five Business Days following termination, the Organiser’s data will be transferred to the Organiser (at the cost of the Organiser) by a method to be agreed by the parties. For the purposes of this clause, the date of termination will be either the date that FestivalPro receives signed authorisation from the Organiser instructing cancellation of account or the date of expiry of notice of termination served in accordance with these Conditions.

12.4. Upon termination of the Agreement, the Organiser will forthwith:

12.4.1. cease to use the Software, Equipment and Services;

12.4.2. erase the Software from the Organiser System and certify to FestivalPro that this has been done;

12.4.3. return to FestivalPro any hardware or other equipment loaned to the Organiser in connection with the Services or any other materials and equipment owned by FestivalPro; and

12.4.4. pay all outstanding invoices raised by FestivalPro pursuant to the Agreement and pay for all work in progress not previously paid for on a reasonable pro-rata basis (subject to receipt of an invoice for the same from FestivalPro).

12.5. In the event of termination of the Agreement by the Organiser part way through the Initial Period, the Organiser remains obliged to pay for Services comprising the provision of service and anticipated fees for the remainder of the Initial Period.

12.6. Where following termination, FestivalPro is unable to cancel any registration of a domain name registered on behalf of the Organiser, it may levy a minimum charge to cover the cost of the domain registration fee.

12.7. Where the Organiser services include the purchase of licensing for software by FestivalPro on behalf of the client, in the event of termination of the agreement by the client, FestivalPro is unable to refund any proportion of the software and/or licensing fees incurred.

13. SEVERABILITY

The illegality, invalidity or unenforceability of any provision of the Agreement will not affect the legality, validity or enforceability of the remainder. If any such provision is found by any court or competent authority to be illegal, invalid or unenforceable, the parties agree that they will substitute provisions in a form as similar to the offending provisions as is possible without thereby rendering them illegal, invalid or unenforceable.

14. ENTIRE AGREEMENT

The terms of the Agreement form the entire agreement between FestivalPro and the Organiser in relation to the Services and all other understandings, agreements, warranties, conditions, terms or representations, whether express or implied, statutory or otherwise, are excluded to the fullest extent permitted by law. The Organiser may not rely upon any representation made or given by any employee of FestivalPro such representation is confirmed in the Agreement.

15. WAIVER

15.1. The failure or delay by either party in exercising any right, power or remedy of that party under the Agreement will not in any circumstances impair such right, power or remedy nor operate as a waiver of it. The single or partial exercise by either party of any right, power or remedy under the Agreement will not in any circumstances preclude any other or further exercise of it or the exercise of any other right, power or remedy.

15.2. Any waiver by either party of a breach of or default under any of the terms of the Agreement by the other party is not deemed a waiver of any subsequent breach or default and in no way affects the other terms of the Agreement.

16. ASSIGNMENT AND SUBCONTRACTING

Neither party may assign the benefit or delegate the burden of the Agreement nor sub-license any of its rights under the Agreement (including to any Associated Company) without the prior written consent of the other party. Any consent provided by a party under this clause is given on condition that the assignee or licensee, as the case may be, agrees to comply with the terms of the Agreement as if they were a party to it.

17. AMENDMENTS

No variation or amendment to the Agreement is effective unless agreed in writing and signed by an authorised representative of FestivalPro.

18. NOTICES

Any notice to be given or made by either party under or in connection with the Agreement must be in writing and given or made to the other party at its address stated in the Order Form or to such other address as either party may from time to time notify to the other. FestivalPro may additionally serve notice on the Organiser under or in connection with the Agreement by email to the Organiser by sending an email to the contact email address stated on the Order Confirmation Form(s). The Organiser may additionally serve notice on the organiser under on in connection with the Agreement by email to [ isupport@intrabench.com ]. Email notices will be deemed to have been served only if acknowledged or if a read receipt is issued.

19. APPLICABLE LAW AND JURISDICTION

The construction, performance and validity of the Agreement will be governed by English law and the English courts have jurisdiction to settle any disputes which may arise out of or in connection with it.

ANNEXURE 1

SOFTWARE LICENCE AGREEMENT

20. PROVISION OF SOFTWARE AND SOFTWARE SUPPORT SERVICES

20.1. In this Annexure, the same definitions will apply as under the supply of Services Agreement between the parties, dated [DATE] expressions will have the following meanings, unless inconsistent with the context:

20.2. FestivalPro grants to the Organiser the non-exclusive, royalty free right to use the System for so long as the relevant Services continue to be provided subject to the remaining terms of these Terms.

20.3. FestivalPro agrees with effect from the Commencement Date in consideration of the payment of the Fees by the Organiser to supply to the Organiser:

  • the Services for the FestivalPro Application, and the Connection of the services to the Website https://yoursite.festivalprosoftware.com/. Where your site is replaced with the Organiser’s own selectable site;
  • the Support Services, that include email support as standard and/or phone support depending on support options purchased;
  • specified Consultancy Services (if any); and
  • such ad-hoc Consultancy Services as the parties shall agree upon from time to time during the Term.

20.3.1. The Services shall be supplied:

  • on a non-exclusive basis,
  • in accordance with the Service Level Agreement (where applicable) and the Order Confirmation Form.
  • upon the Terms of this Agreement.

20.3.2. In relation to the Consultancy Services FestivalPro undertakes to:

  • perform the same in a professional and diligent manner; and
  • use its reasonable endeavours to ensure that while its staff are on the Organiser's premises they conform to the Organiser’s normal codes of staff and security practice as notified to FestivalPro by the Organiser in writing; and
  • use its reasonable endeavours to maintain continuity in the staff engaged to provide the Consultancy Services.

20.4. The Organiser agrees that if, in the course of performing the Services, it is necessary or desirable for FestivalPro to access or use any equipment, software or data of the Organiser (or which is in the possession of the Organiser) then the Organiser grants to FestivalPro a non-exclusive, royalty free licence, during the Term to use the same solely for the purpose of delivering the Services (including, without limitation and for the avoidance of doubt, Consultancy Services, Support Services, maintenance of the Hosted Applications or the Network and preparing for delivery of the Services) and it is declared that FestivalPro shall have no right to use the same for any other purpose or at any other time.

20.5. The following provisions apply to the Hosted Applications:

20.5.1. FestivalPro hereby grants to or will procure from the HA Proprietors for the Organiser a non-exclusive, royalty free licence, during the Term to use the Hosted Applications and any ancillary software solely for the purpose of using the Services in accordance with this Agreement and it is declared that the Organiser shall have no right to use the same for any other purpose or at any other time;

20.5.2. the Organiser shall not (i) reproduce, duplicate, disseminate, copy, sell, rent, lease or loan or otherwise disclose any HA Materials; (ii) electronically transmit any HA Materials over a network except as necessary for the Organiser's licensed use of the Hosted Applications; (iii) use run-time versions of third-party products embedded in any Hosted Application, if any, for any use other than the intended use of that Hosted Application, (iv) except to any extent permitted by law, modify, disassemble, decompile, or reverse engineer any Hosted Application; (v) sublicense or transfer possession of any copy of any Hosted Application to another party, except, in each such case, with the prior written consent of FestivalPro and the relevant HA Proprietor; or (vi) use any Hosted Application in any way not expressly provided for by this Agreement;

20.5.3. title to the Hosted Applications shall not pass to the Organiser. The Organiser shall acknowledge that the Hosted Applications are the property of the respective HA Proprietors;

20.5.4. the HA Proprietors disclaim all warranties, express or implied, in favour of the Organiser and shall not be liable to the Organiser for any damages, whether direct, indirect, incidental or consequential, arising from the use of the Hosted Applications;

20.6. Access to Festival Pro Application Service: The Organiser is responsible for obtaining all hardware, software and services which are necessary to connect to the Festival Pro site and access the Services including without limitation, all computers, web browsers, and services provided by an Internet service provider. All such facilities and services shall comply with FestivalPro interface specifications for the Services described in the Order Confirmation Form Documentation or as otherwise required by FestivalPro.

20.7. At the termination or expiry of the Term the Organiser shall discontinue use of the Hosted Applications and shall, at the option of FestivalPro, destroy or return such components of the Hosted Applications as shall be in its possession to FestivalPro including all archival or other copies.

20.8. FestivalPro shall provide disk space on FestivalPro's server for storage of the Service and any data files associated with the System.

20.9. The System will be available to Internet users with an availability of 99.9% per annum, normal maintenance and unforeseen hardware or communications problems excepted. To minimise server Downtime during peak usage periods, FestivalPro will use reasonable efforts to schedule routine maintenance during non-peak hours.

20.10. FestivalPro will backup the System and all data files associated with it at least once each day and will store the backup materials in a safe secure location that is suitable for magnetic media.

20.11. FestivalPro, in its sole discretion, may change, suspend or discontinue any aspect of the System at any time, including the availability of any System feature, database or content. FestivalPro may also impose limits on certain features and services or restrict your access to parts or all of the System without notice or liability.

21. BULK EMAILING

21.1. Use Restrictions:

21.1.1. you may not use the bulk email system in any way for sending any unsolicited e-mail directed to people not personally known to you, including but not limited to junk mail, chain letters or other unsolicited bulk e-mail, commercial or otherwise or any e-mail sent that FestivalPro reasonably believes constitutes as unsolicited e-mail, based on applicable laws and industry practices;

21.1.2. you agree to pay for the bulk mail based on the volume of email you send;

21.1.3. the mass e-mail messaging services may only be used for lawful purposes. Sending or solicitation of any material that violates any law is prohibited. This includes, but is not limited to, any material that is obscene, threatening, harassing, libellous, or in any way violates intellectual property laws or a third party's intellectual property rights;

21.1.4. FestivalPro may add a "Sent By" or similar identifying message in the footer of every message you send using the bulk email system. Also, FestivalPro will add a link allowing subscribers to automatically unsubscribe from the service. You should not try and circumvent any users from unsubscribing from the service or re-subscribe them to the bulk mail service unless they have explicitly asked to.

21.2. Termination of Bulk Email Services:

21.2.1. You agree that FestivalPro, in its sole discretion, may terminate your password, account (or any part thereof) or use of Festival Pro and remove and discard any Email if FestivalPro believes that you have violated or acted inconsistently with the letter or spirit of these T&C. FestivalPro may also in its sole discretion and at any time discontinue providing the bulk emailing services, or any part thereof. You agree that any termination of your access to the bulk emailing services under any provision of these T&C may be effected without notice to you and agree that FestivalPro may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to the bulk email services. Further, you agree that FestivalPro shall not be liable to you or any third party for any termination of your access to the bulk email services; provided.

22. CLIENT'S UNDERTAKINGS

22.1. The Organiser undertakes:

22.1.1. to take good care of the Ancillary Systems.

23. ALTERATIONS

23.1. Except to the extent and in the circumstances expressly required to be permitted by FestivalPro by law, the Organiser may not:

23.1.1. alter, modify, adapt or translate the whole or any part of the program listings, object and source program listings, object code or source code in the Software in any way whatsoever;

23.1.2. permit the whole or any part of the Software to be combined with or become incorporated in any other computer programs; or

23.1.3. decompile, disassemble or reverse engineer the Software; nor attempt to do any of these things.

24. PERFORMANCE

24.1. The Organiser acknowledges that:

24.1.1. software in general is not error-free, and agrees that the existence of such errors will not constitute a breach of the Agreement; and

24.1.2. the Ancillary Systems will operate only in conjunction with the Organiser System and other operating systems that may be notified by FestivalPro in writing from time to time.

24.2. FestivalPro will use its reasonable endeavours to check the Software for the most commonly known viruses prior to delivery to the Organiser. However, the Organiser is solely responsible for virus scanning the Software and FestivalPro gives no warranty that the Software will be free from viruses.

24.3. FestivalPro warrants that (subject to the other provisions of the Agreement) the Ancillary Systems will as at delivery be free from material errors which prevent the Organiser's use of the Services and conform in all material respects with any applicable specification agreed in writing between the Organiser and FestivalPro. FestivalPro will not be liable for a breach of this warranty:

24.3.1. if the error in question has been caused by any modification variation or addition to any part of the Ancillary Systems not performed by FestivalPro, their incorrect use by the Organiser, or use with or in connection with systems with which they are incompatible; or

24.3.2. where the Organiser does not notify FestivalPro in writing of a failure within 14 days of becoming aware of the same.

24.4. If the Organiser makes a valid claim against FestivalPro based on the failure by FestivalPro to comply with the warranty set out in clause 24.3 FestivalPro will at its option take such steps as it deems necessary to remedy such failure or refund such part of the Fees as relates to the defective Ancillary Systems.

24.5. If FestivalPro complies with clause 24.4 it will have no further liability for a breach of the warranty set out in clause 24.3.

25. THIRD PARTY SOFTWARE

Any Third Party Software is supplied to the Organiser on the basis of the relevant third party's standard licence terms provided to the Organiser with the relevant Third Party Software and with which the Organiser agrees to comply.

26. PROVISION OF SUPPORT SERVICES

26.1. FestivalPro will provide the Support Services to the Organiser upon the terms and conditions set out in these Terms.

26.2. FestivalPro will only be obliged to provide the Support Services during Support Hours.

26.3. The obligation of FestivalPro to provide Support Services will not extend to:

26.3.1. rectification of lost or corrupted data;

26.3.2. Ancillary Systems altered, modified or varied by other than FestivalPro;

26.3.3. attendance to faults arising from the Organiser's failure to comply with FestivalPro's instructions with regard to the use of the Services or any documentation or manuals provided by FestivalPro, or operator error or omission; or

26.3.4. attendance to faults attributable to the use or interaction of an Ancillary System with other software or systems with which it is not compatible. FestivalPro will charge in addition to the Fees for the carrying out any remedial work described in clauses 26.3.1 to 26.3.3.

26.4. FestivalPro will use its reasonable endeavours to provide the Support Services in accordance with the SLA.

26.5. If a Defect occurs, the following procedure will be followed:

26.5.1. the Organiser will notify FestivalPro of the Defect and provide such information and assistance as FestivalPro reasonably requires in connection with such Defect; and

26.5.2. FestivalPro will analyse the Defect and use its reasonable endeavours to rectify the Defect in question or propose a solution in connection with the same, within twenty Business Days of being notified of the same.

27. TICKETING AND PAYMENTS VIA FESTIVALPRO

27.1. For the avoidance of doubt, FestivalPro does not and will not provide banking, deposit taking, stored value, insurance or any other financial services to an Organiser. FestivalPro shows you a balance of proceeds for your events in your FestivalPro account, however, that balance merely reflects the amount of Event Registration Fee collected by a third party payment service.

27.2. Upon an order being placed by an Attendee and confirmed through FestivalPro, FestivalPro generates a confirmation message and issues a unique confirmation number and QR code for such Attendee’s order. Organiser agrees to unconditionally accept, honor and fulfill all ticketing, registration, merchandise and donation commitments that have been confirmed by FestivalPro through the services, and it is Organiser's responsibility to verify an Attendee’s confirmation number and/or any event restrictions prior to the applicable event.

27.3. As part of the creation of a paid event or at any time following such creation, you may be required by FestivalPro to provide additional information (beyond the information required to register for the Services) about yourself, the entity you represent (if any) and the principals/beneficial owners of the entity you represent (if any) (collectively, “Additional Registration Data”). As an example, the Additional Registration Data may include a current address, doing business as (DBA) names, description of products, website address, bank account or other payment account information, Tax Identification Numbers, date of birth, passport or driver’s licence number, country of origin, copies of government identification documents and other personal information. This information may be used to verify your identity, the validity and/or legality of your transactions and/or whether you qualify to use the Services for paid events. You agree to: (a) provide this information in a timely, accurate and complete manner and (b) maintain and promptly update this information in a timely manner to ensure it remains accurate and complete at all times.

28. FEES

28.1. Ticket fees:

28.1.1. regardless of the payment processing option elected, Organiser agrees to pay FestivalPro all applicable service fees required for use of the FestivalPro Services (the “FestivalPro Service Fee”). In most instances, the FestivalPro Service Fee is applied to each Event Registration Fee received by the Organiser via the Services. However, the FestivalPro Service Fee may also appear as a single or repeating flat rate depending on the type or size of the event. Organiser also agrees to pay FestivalPro, where applicable, the additional FestivalPro Payment Processing fee (the “FestivalPro Payment Processing Fee”) for each Event Registration Fee, which FestivalPro Payment Processing Fee may include without limitation, a processing fee applied to the FestivalPro Service Fee. The 27.4.2 FestivalPro Service Fee and the FestivalPro Payment Processing Fee vary by things such as, and without limitation, Services available, country, and processing currency;

28.1.2. the Organiser may from time to time request additional Services from FestivalPro, including without limitation, marketing and promotion services, equipment leasing, on-site services, printed tickets and account management, which FestivalPro may provide at its discretion. Fees for such ancillary Services (the “Ancillary Fees”) will be disclosed to Organiser prior to Organiser’s acceptance of such Services. The FestivalPro Service Fee, the FestivalPro Payment Processing Fee and the Ancillary Fees are referred to herein as the “Fees.” For the avoidance of doubt, unless otherwise agreed in each instance, Fees collected by FestivalPro are non-refundable for any reason;

28.1.3. invoices for Fees are sent to Organisers monthly for Fees incurred in the previous month. All invoices are due and payable within thirty (30) days of delivery of the invoice;

28.1.4. you may elect to add “pay by invoice” as an option to your Service. If you use pay by invoice you must supply bank account information requested by FestivalPro, which information will be displayed on invoices and order confirmations delivered by FestivalPro to the applicable Attendee after completion of a transaction on the Services. Organiser will then collect the funds from the Attendee and then mark the ticket/registration as “paid” in a designated area of the Services. Once marked as paid, FestivalPro will cause the Attendee’s ticket to be validated such that when scanned with one of FestivalPro’s Applications it will show as valid. It is Organiser’s sole responsibility to provide accurate bank account information, collect all amounts from Attendees, process refunds (if applicable) off the Services, and accurately mark tickets/registrations as paid or unpaid on the Services in the designated area. For the avoidance of doubt, with “pay by invoice” the payment transaction is effected solely between Organiser and the applicable Attendee.

28.2. Refunds:

28.2.1. Organiser agrees to communicate a refund policy to Attendees with respect to each event posted on the Services and to administer such policy in accordance with its terms. Organiser can issue refunds to Attendees directly through the Services within certain windows permitted by our Payment Processing Partners. If the refund is outside such windows, then it will need to be processed manually by Organiser. Consistent with, and in addition to, the Organiser Refund Policy Requirements, refunds that you are responsible for due to the cancellation or nonperformance of an event are subject to the following refund requirements:

  • in the event of a full or partial event cancellation, Organiser agrees to issue refunds to Attendees;
  • Organiser agrees that, unless otherwise mutually agreed (email acceptable) no refunds shall be made outside of the FestivalPro platform (e.g. offline);
  • Organiser agrees to notify Attendees of the event cancellation as soon as reasonably possible and prior to the event start time;
  • Organiser will provide clear instructions and contact information to Attendees so that Attendees can make refund requests directly to Organiser, including without limitation, instructing Attendees specifically to contact Organiser for any refund requests, and not to contact FestivalPro, or, alternatively, Organiser will turn on the in-product refund request function within the FestivalPro platform and respond to any Attendee refund requests received through such tool;
  • if the Organiser cancels only part of a multi-day event, then Organiser agrees to refund a pro-rata monetary value portion of the purchase price of a multi-day ticket based on the corresponding monetary value of the portion of the multi-day event that was cancelled. For example, if Organiser sells a 2-day ticket to a festival for $200, and cancels 1 day of the festival, the Organiser must provide a $100 refund to Attendees for the cancelled day; and
  • if Organiser is offering Attendees an alternative “make good” in lieu of a purchase price refund (e.g., a discount on the next ticket purchase), then such offer must be of equal or greater value to the value of the ticket for the cancelled (or partially cancelled) event and such value must be clearly communicated to the Attendees. Organiser agrees that it will be fully liable for the cost of chargebacks received related to purchases even if an alternative “make good” refund is given.

28.2.2. All disputes regarding refunds are between Organiser and its Attendees. In the event of a dispute, FestivalPro may try to mediate, but ultimately it is Organiser’s obligation to settle the dispute.

28.3. Taxes:

28.3.1. 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 Services and you agree that it is your sole responsibility to, and that you will, collect, remit and report the correct amounts of all such Taxes to the applicable governmental authorities, even if FestivalPro provides you with tax tools or tax calculators that assist you in doing so. FestivalPro does not represent, warrant or guarantee that any tax tools or tax calculators provided to you will meet all tax requirements that may be applicable to you or that such tax tools or tax calculators will result in your collection or remittance of all applicable Taxes, which 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 Attendees, credits and deductions for which you may qualify and other factors, and you hereby release FestivalPro of any and all liability with respect to your use of the tax tools and/or tax calculators. None of such tax tools or tax calculators should be considered legal or tax advice. If you use any tax tools or tax calculators that require you to input a tax registration number, you represent and warrant that such tax registration number is true and correct. FestivalPro cannot give you legal or tax advice, so please be sure to check with your own tax advisor about any applicable Taxes.

28.3.2. To comply with sales tax regulations of the European Union (the “EU”), FestivalPro is required to (A) collect Value Added Tax (“VAT”) from Organisers on the FestivalPro Service Fee for paid tickets or registrations sold on or through the Site by Organisers residing in the UK or Organisers residing in the EU who have not provided FestivalPro with their VAT Identification Number (“VAT ID”); and (B) remit any such VAT collected to the relevant tax authority. Please be aware that falsification or misrepresentation of information to evade payment of VAT may result in fines and/or criminal prosecution. You agree to promptly and fully reimburse FestivalPro for all out-of-pocket costs and expenses arising out of your falsification or misrepresentation of a VAT ID on the Site.