DICE USA Standard Ticket Partnership Terms and Conditions
DICE USA STANDARD TICKET PARTNERSHIP TERMS AND CONDITIONS
These Terms and Conditions form part of the Agreement between a Vendor and DICE, entered into pursuant to a DICE USA Ticket Partnership Agreement Term Sheet.
LAST UPDATED: 11 May 2021
| 1. Definitions and Interpretation
1.1. The definitions and the rules of interpretation in this Clause apply in this Agreement. The terms below shall have the meanings ascribed to them:
|Additional Fee||means the portion of the Original Ticket Price which is payable by the Vendor to a third party (such as a third party ticketing agent or venue) for providing access to Customers to the Venue;|
|Agreement||means together the Particulars, the Commercial Terms, and these Terms and Conditions;|
|Announce Date||means in relation to an Event to which DICE is to make available the Tickets to Purchase, the date on which DICE publishes information about that Event on the DICE Services;|
|Applicable Data Protection Laws||has the meaning set out in Clause 12.5(a);|
|Applicable Laws||means all state, federal, foreign, or local laws (including case law), legislation, statutes, rules, regulations, by-laws, or directions or guidance from government or governmental agencies including any rules, regulations, guidelines, or other requirements of relevant regulatory authorities which have the force of law together with any industry codes of practice in effect from time to time;|
|Business Day||means any day which is not a Saturday, a Sunday, or a bank or federal holiday in the United States;|
|Clause||means a clause to this Agreement;|
|Commencement Date||means the commencement date as set out in the Particulars;|
|Commercial Terms||the commercial terms of the Agreement;|
|Consent Notice||has the meaning set out in Clause 12.7(a);|
|Customer||means a person who Purchases a Ticket;|
|Damages||means any direct damage, loss, liability, claim, obligation, deficiency, cost, expense, fine, or penalty (including reasonable legal, expert or consulting defence costs reasonably and properly incurred), but excluding any incidental, indirect or consequential damages;|
|DICE||means DICE FM Inc., as further described in the Particulars;|
|DICE Fees||means the Service Fees, and, if applicable, the DICE Postal Fee;|
|DICE Logos||means the official DICE Logos as provided by DICE to the Vendor from time to time;|
|DICE Postal Fee||means the delivery fees charged by DICE to the Vendor fulfil the delivery of physical Tickets by DICE to Customers on behalf of the Vendor;|
|DICE Services||means the websites and mobile device ticket selling applications made available by DICE;|
|Event||means each and every entertainment feature or sporting event or any attraction of any kind either (i) presented, promoted or otherwise organized by the Vendor or (ii) that takes place at a Venue which the Vendor currently or subsequently owns or hold a majority or controlling interest in, operate or manages during the Term;|
|Event Information||means any and all information relating to an Event, Ticket and/or the Vendor as provided by the Vendor to DICE, including but not limited to, the Venue, the Announce Date, Onsale Date, the names of the performers, the dates of the Event, the dates and times of the performances, the exact seat details in the case of reserved seating areas and details of any special needs access or seating arrangements for the Event or whether the Event is subject to any contingencies including, but not limited to, the weather or any age restrictions;|
|Face Value||means the sum which is agreed by the parties in writing to be the Face Value, as described in Clause 6.1(a);|
|Initial Term||has the meaning set out in the Particulars;|
|Insolvency Event||means where a party becomes or is reasonably likely to become insolvent, enters into bankruptcy, individual voluntary arrangement, liquidation, winding up, receivership or administrative receivership, administration, a corporate voluntary arrangement or compromises any debts with creditors or any other analogous proceedings in another jurisdiction;|
|Intellectual Property Rights||means any rights in any intellectual property (including any patent, copyright, trade secret, trademark, service mark or trade name, logo, utility model, design right, database right, moral right, right relating to passing off, domain name and all similar or equivalent rights) in each case whether registered or not and including all applications (or rights to apply) for, or renewal or extension of, such rights which exist now or which will exist in the future in any jurisdiction;|
|Losses||means any loss of profit, sale or business, agreements or contracts, anticipated savings, corruption of software, data or information, damage to goodwill, indirect or consequential loss, claims, losses, demands, actions, third party claims, damages, costs (including court costs and legal fees), fines, liabilities, obligations, liens and expenses;|
|Materials||has the meaning set out in Clause 10.3;|
|New Customer||has the meaning set out in the Commercial Terms;|
|Onsale Date||means the date on which Tickets for an Event are made available for Purchase to the Customer;|
|Original Customer||has the meaning set out in the Commercial Terms;|
|Original Ticket Price||means the total amount paid by a Customer at the time of Purchasing a Ticket (not via the Waiting List);|
|Particulars||means the Particulars of the Agreement;|
|Purchase||means the purchase or acquisition of a Ticket by a Customer from the Vendor via the DICE Services;|
|Renewal Term||has the meaning set out in the Particulars;|
|Sales Proceeds||means the total of all Original Ticket Prices collected by DICE from Customers on behalf of the Vendor in respect of all Tickets Purchased for an Event, minus the total of all Original Ticket Prices refunded or due to be refunded to the Original Customer pursuant to the Commercial Terms|
|Seat Selection Charge||has the meaning set out in the Commercial Terms;|
|Self Payout||the DICE self-billing and payment system available via the DICE Services subject to the Vendor and the Event meeting DICE’s requirements for Self Payout as issued to the Vendor from time to time;|
|Service Fees||has the meaning set out in the Commercial Terms;|
|Systems||has the meaning set out in Clause 19.1;|
|Term||means the Initial Term together with any Renewal Term(s);|
|Ticket||means any printed, digital ticket or other type of evidence of the right to occupy a space or attend an Event as offered for Purchase on the DICE Services;|
|Ticket Allocation||has the meaning set out in the Commercial Terms;|
|Vendor||has the meaning set out in the Particulars;|
|Vendor’s Bank Details||has the meaning set out in the Particulars;|
|Vendor Marketing||has the meaning set out in Clause 12.6;|
|Vendor Payment||means the Sales Proceeds less any amounts due to DICE under this Agreement, plus any share of the Seat Selection Charge and any share of the difference between the Original Ticket Price and the Waiting List Price which DICE has agreed to share with the Vendor pursuant to the Commercial Terms;|
|Venue||means the building or site at which an Event is held;|
|Venue Fee||means the portion of the Original Ticket Price which is payable by the Vendor to the Venue for providing access to Customers to the Venue, such Venue Fee collected by DICE from Customers on behalf of the Vendor;|
|Waiting List||has the meaning set out in the Commercial Terms;|
|Waiting List Deadline||means the date on which the Waiting List for an Event closes; and|
|Waiting List Price||means the total amount paid by a New Customer at the time of Purchasing a Ticket via the Waiting List.|
1.2. The headings in the Agreement are inserted for convenience only and shall not affect the interpretation or construction of the Agreement.
1.3. Words expressed in the singular shall include the plural and vice versa. Words referring to a particular gender include every gender. References to a person include an individual, company, body corporate, corporation, unincorporated association, firm, partnership or other legal entity.
1.4. The words “other”, “include”, “includes”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as any preceding words where a wider construction is possible.
1.5. References to any statute or statutory provision shall include: (i) any subordinate legislation made under it; (ii) any provision which it has modified or re-enacted (whether with or without modification); and (iii) any provision which subsequently supersedes it or re-enacts it (whether with or without modification).
1.6. If there is any conflict between any provision contained in these Terms & Conditions, the Particulars, or the Commercial Terms, the provisions shall prevail in the following order: the Particulars, then the Commercial Terms, then these Terms & Conditions.
1.7. This Agreement applies to the subject matter of this Agreement to the exclusion of any other terms that the Vendor seeks to impose or incorporate between the Vendor and DICE, or which are implied by trade, custom, practice or course of dealing.
2.1. In consideration of the Service Fees, DICE will make available Tickets to be Purchased on the Vendor’s behalf.
2.2. The Vendor authorizes DICE to collect the Sales Proceeds of each Ticket Purchased.
2.3. Subject to Clauses 2.4 and 2.5, DICE will use its reasonable endeavors to sell its allocation of Tickets for an Event on behalf of the Vendor to Customers but DICE does not guarantee that any minimum or fixed number of Tickets will be Purchased through the DICE Services at any time.
2.4. The Vendor acknowledges and agrees that DICE’s appointment under this Agreement is on a non-exclusive basis, and that DICE may have many other events listed and other tickets offered for sale on the DICE Services concurrently with any Event, as promoted by other vendors.
2.5. The Events included within the Ticket Allocation shall be subject to DICE’s sole discretion. Further, if DICE enters into an arrangement with a venue before or after the date of this Agreement under which the venue allocates tickets to DICE to make available via the DICE Services, and such ticket allocation relates to an Event, DICE shall be entitled to exclusively make available such ticket allocation on the DICE Services to the exclusion of any tickets made available by the Vendor for that Event.
The Vendor shall allocate and, if necessary, deliver the Ticket Allocation to DICE for the Term, in the form and method as agreed between the parties in writing from time to time.
This Agreement shall come into force on the Commencement Date and (subject to the provisions in this Agreement for earlier termination in accordance with Clause 15) shall continue in force for the Term.
5. Event Information
5.1. The Vendor shall provide DICE with full and accurate Event Information for each Event for which DICE makes available Tickets for Purchase, such Event Information to include:
(a) information which DICE is required to provide to Customers under any Applicable Laws; and
(b) any other information reasonably requested by DICE, including the information referred to in Clause 6.
5.2. The Vendor shall provide the Event Information no later than two (2) Business Days before the Announce Date of the relevant Event. For the avoidance of doubt, the Announce Date may occur before or at the same time as the Onsale Date.
5.3. The Vendor represents and warrants that it shall not provide any Event Information that:
(a) is false, inaccurate or misleading;
(b) infringes any third party's Intellectual Property Rights;
(c) violates any Applicable Laws;
(d) is, or may reasonably be considered to be harassing, unlawful, harmful, threatening, discriminatory, pornographic, deceptive, offensive or defamatory;
(e) facilitates illegal activity;
(f) causes damage or injury to any person or property;
(g) may, in DICE's reasonable opinion, have a negative impact on DICE's business and/or reputation;
(h) includes any information that references other websites (other than the Vendor's website), addresses, email addresses, contact information or phone numbers; and/or
(i) contains any computer viruses, worms or any other potentially damaging computer programs or files.
5.4. DICE shall not be liable, whether directly or indirectly, in contract, tort (including negligence), misrepresentation, restitution or otherwise.to any third party or any Customer for any breach by the Vendor of the warranties and undertakings provided by the Vendor under Clauses 5.3(a) – 5.3(i) above.
5.5. The Vendor hereby grants DICE a royalty-free, perpetual, irrevocable, transferable right and license to use, reuse, copy, exhibit, modify, record, reproduce, broadcast, transmit, publish, distribute, display, perform, delete in its entirety, adapt, publish, translate, create derivative works from and/or incorporate the Event Information into any form, medium or technology now known or hereafter developed throughout the world without further notification, authorization or compensation to the Vendor or anyone acting on the Vendor's behalf. The Vendor represents and warrants that no further permissions, consents or licenses are required from the Vendor or any third party for DICE to use the Event Information.
5.6. DICE shall retain editorial control over all content presented on the DICE Services or otherwise communicated to users of the DICE Services, and DICE is entitled, in its sole and absolute discretion, to remove or procure the removal of any Tickets offered for Purchase or any Event Information uploaded or otherwise made available by the Vendor or on the Vendor's behalf which DICE consider to be in breach of the terms of this Clause 5.
5.7. The Vendor shall obtain DICE’s prior written consent if the Vendor wishes to publish or otherwise make available to the public on any medium outside of the DICE Services a description of any element of the DICE Services. In obtaining DICE’s consent, the Vendor shall, at the request of DICE, provide a copy of such description to DICE. The Vendor and DICE shall consult together in writing on the timing, contents and manner of release of any announcement.
5.8. The Vendor agrees to add mutually agreed DICE brand elements to the Events and/or the Venue, to be paid for and provided by DICE.
5.9. Vendor agrees that for any brand sponsored events, DICE shall be informed in advance and shall have the option to remove any or all DICE branding from the venue where there may be conflict between the brands.
6. Event Fees
6.1. DICE and the Vendor shall, no later than two (2) Business Days prior to the Announce Date, agree and document (such documentation may be by email), the following information in relation to the Event:
(a) The actual value (the “ Face Value”) for all Tickets;
(b) the Service Fee and any Transaction Fee and/or any changes to the agreed Service Fee or Transaction Fee;
(c) where applicable, the DICE Postal Fee;
(d) where applicable, the Venue Fee; and
(e) where applicable, the Additional Fee.
6.2. DICE shall not be obligated to make the Tickets available for Purchase until such time that the parties have met their obligations under Clause 6.1.
7. Event Changes And Cancellations
7.1. The Vendor shall promptly and without any undue delay notify DICE of any:
(a) scheduling changes;
(b) Venue changes;
(c) line-up changes; and/or
relating to Events with Tickets offered for Purchase through the DICE Services.
7.2. The Vendor shall be solely responsible for any costs incurred by either party as a result of any Event changes or cancellations including, but not limited to, the matters listed in Clause 7.1 above.
7.3. If an Event is cancelled, rescheduled (and the Customer is not able to attend the rescheduled date), or not performed to the Customer’s reasonable satisfaction, then the Vendor shall be responsible for providing any refunds due and payable to the Customer, such refunds to be payable in accordance with Clause 9.12. For the avoidance of any doubt, DICE shall not be liable to any Customer or third party for any Losses, demands, costs or expenses for any cancellation, postponement, delay or changes to the Event Information and the Vendor shall provide DICE with an indemnity against the same. The indemnity as set out in this clause 7.3 shall continue to operate notwithstanding the termination of this agreement for any reason or the expiry of the Term.
8. DICE Fees
8.1. The Vendor shall pay to DICE:
(a) the DICE Fees; and
(b) any Damages arising, if any, from an Event cancellation, in accordance with clause 8.2.
8.2. DICE will be entitled to Damages from the Vendor where an Event is cancelled, rescheduled, delayed, postponed, curtailed or not completed (in part or in full) for any reason.
8.3. The Vendor (i) authorizes DICE to take payment of the DICE Fees plus applicable taxes, and (ii) acknowledges that DICE shall retain any difference between each Original Ticket Price and the Waiting List Price (per Ticket, if applicable), in each case, by deducting such amounts from the Sales Proceeds held by DICE prior to remitting the Vendor Payment in accordance with Clause 9.
8.4. DICE shall invoice the Vendor for:
(a) the Dice Fees plus taxes if applicable, the timing and frequency of the invoices to be agreed between the parties in respect of each Event; and
(b) any Damages within 90 days of the relevant Event being cancelled, rescheduled, delayed, postponed, curtailed or not completed.
8.5. Where Self Payout is available for an Event, the Vendor may initiate the DICE invoicing and payment process via the Vendor’s account in the DICE Services. Once the Vendor requests Self Payout for an Event, DICE’s invoice for the DICE Fees will be generated and issued to the Vendor.
9. Payment and Distributions of Funds
9.1. The Vendor authorizes DICE, its agents, and its subcontractors to accept payment of the Sales Proceeds by Customers via any form of payment approved by DICE in writing in connection with the sale of Tickets, including any credit or debit cards.
9.2. DICE may agree, in its sole and absolute discretion, to provide a sum of money to the Vendor as an advance for a particular Event to which DICE has received a Ticket Allocation (“ Advance”).
9.3. DICE shall pay the Vendor an amount equal to the Vendor Payment per Event, such payment to be made in accordance with this Clause 9 and subject always to Clauses 9.5 and 9.11.
9.4. Subject to Clause 9.5, DICE shall pay the Vendor Payment to Vendor under Clause 9.3 within 5 Business Days of the date on which the performance of the relevant Event takes place.
9.5. The following provision will apply if an Advance has been paid as described in Clause 9.2:
(a) if the Vendor Payment for the relevant Event is less than the Advance, the Vendor shall pay DICE an amount equivalent to the Advance minus the Vendor Payment; or
(b) if the Vendor Payment for the relevant Event exceeds the Advance, then an amount equal to the Advance shall be deducted from the Vendor Payment for that Event, such that only an amount of the Vendor Payment for that Event in excess of the Advance shall be payable by DICE to the Vendor.
9.6. The Vendor shall be responsible for remitting:
(a) any Venue Fee to the Venue; and
(b) any Additional Fee to the relevant third party.
9.7. DICE shall make payment under Clause 9.3:
(a) to the Vendor’s Bank Details using a third party payment processor (in accordance with Clause 9.10);
(b) to the Vendor’s Bank Details by ACH; or
(c) by such other means as agreed between the Vendor and DICE in writing from time to time.
9.8. DICE shall not make any payments to the Vendor until DICE has been provided with the Vendor's Bank Details. All funds payable by DICE to the Vendor under this Agreement shall be paid by DICE to the Vendor using the Vendor’s Bank Details, or such other bank account details as are agreed between DICE and the Vendor in writing.
9.9. The Vendor agrees that DICE will not be responsible for verifying the Vendor's Bank Details or the authenticity of any settlement instructions and the Vendor agrees that DICE may rely on the Vendor's Bank Details as the correct bank account to debit or credit according to this Agreement. If the Vendor gives DICE an instruction to change the Vendor’s Bank Details, DICE is entitled to ask for written confirmation before acting on it. The Vendor must do all that is reasonably possible to prevent any unauthorized personnel sending DICE any instructions in relation to the Vendor's Bank Details and must tell DICE as soon as possible if an unauthorized person sends instructions to DICE. Unless the Vendor informs DICE otherwise in writing, the Vendor will be responsible for all instructions that DICE receives and acts on, even if the instructions were not given by the Vendor or the Vendor's authorized representatives, and the Vendor shall be liable for any Losses that arise from such instructions.
9.10. The payment processing services used by DICE to make payments to the Vendor are provided by a third party payment processor on behalf of DICE from time to time, currently Stripe Inc. (“ Stripe”). Any payments made via a third party payment processor will be subject to that entity’s terms and conditions, and in the case of Stripe, the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By entering in into this Agreement or continuing to treat DICE as a disclosed agent, the Vendor agrees to be bound by the Stripe Services Agreement (or other terms and conditions of the relevant third party payment processor as notified to the Vendor form time to time), as the same may be modified by Stripe from time to time. As a condition of DICE enabling payment processing services through Stripe (or other third party payment processor), the Vendor agrees to provide DICE accurate and complete information about the Vendor and its business, and the Vendor authorizes DICE to share such information and transaction information related to the Vendor’s use of the payment processing services provided by Stripe (or other third party payment processor). The Vendor shall be fully liable for any Losses that arise as a result of any false, inaccurate or misleading information provided to DICE.
9.11. DICE shall be entitled to set-off any amounts owed to DICE by the Vendor under this Agreement against Sales Proceeds held by DICE.
9.12. If a Customer is entitled to a refund in accordance with Clause 7.3, DICE shall be entitled to refund the relevant Customer on the Vendor’s behalf by:
(a) setting off a sum equal to the refund from the relevant Sales Proceeds held by DICE; or
(b) if the relevant Sales Proceeds are not sufficient to meet the refund payable, or DICE has already remitted the relevant Sales Proceeds to the Vendor, the Vendor shall remit to DICE such amounts as requested to enable DICE to fulfil the refund(s), such remittance to be made within forty-eight (48) hours of DICE's request.
9.13. The Vendor shall be responsible for the payment and remittance of any and all taxes incurred or assessed on the Vendor Payment pursuant to the Agreement.
9.14. The Vendor will be responsible for any chargebacks (e.g. in relation to fraud, declined transactions, cardholder disputes, returned Tickets etc.) DICE receives from its bank in relation to Events. DICE is entitled to withhold up to 5% of the Sales Proceeds per Event to cover chargebacks for a period of 6 (six) months after each Event.
10. Intellectual Property
10.1. The Vendor shall include the DICE Logos in all relevant advertising or other promotional material created, produced, or used in relation to an Event. For the purposes of this Clause 10.1 DICE hereby grants to the Vendor a non-exclusive, non-transferable, personal, revocable, limited license to use the DICE Logos during the Term for the sole purpose of exercising the Vendor's rights granted under this Clause 10.1.
10.2. Subject to Clause 10.1, the Vendor shall have no rights in respect of the DICE Logos or of the goodwill associated with the DICE Logos, or any other of DICE's Intellectual Property Rights. The Vendor acknowledges that all rights, whether legal, beneficial or otherwise, and all goodwill in respect of the DICE Logos and any other of DICE's Intellectual Property Rights are and shall remain vested in DICE and that the DICE Logos and any other of DICE's Intellectual Property Rights are and shall remain, as between it and DICE, the property of DICE or its licensors.
10.3. The Vendor may from time to time provide DICE with materials or content relating to Events, performers or the Vendor including photographs and images (audio and/or visual), text, music, trademarks, symbols, logos, slogans (“ Materials”). The Vendor hereby grants DICE a royalty free perpetual license to use the Materials for the purposes of advertising, marketing and promoting the relevant Events.
11. Fly-posting / Snipes
11.1. The Vendor shall not permit encourage or arrange for fly-posting ("spines") or other illegal advertising of an Event in contravention of any Applicable Laws. The Vendor shall not use DICE's name, website address, DICE Logos or any of the DICE’s Intellectual Property Rights in connection with fly-posting or other illegal advertising. If DICE is notified that fly-posting has taken place in relation to an Event, this shall constitute a material breach of this Agreement and DICE shall be entitled to:
(a) terminate this Agreement in accordance with Clause 15.2(a); and/or
(b) set-off all costs incurred by DICE in the removal of posters and/or any fines or payments that DICE may be required to pay in connection with such fly-posting against Sales Proceeds for the relevant Event and/or any other events produced or promoted by the Vendor.
12. Customers’ Personal Data
12.1. In this Clause 12, the terms data controller, personal data, special categories of personal data and processing shall be as defined in the EU General Data Protection Regulation 2016/679 (as amended or replaced from time to time) (the “ GDPR”) and:
(a) “ Data Subjects” are Customers; and
(b) “ Data” shall mean any data, including personal data and special categories of personal data, of Data Subjects processed in connection with this Agreement.
12.2. This Clause 12 sets out the basis on which DICE provides the Data.
12.3. DICE and the Vendor acknowledge that each party is a data controller of the Data, but are not joint data controllers.
12.4. DICE may transfer the Data to the Vendor and other third parties (including Venues) to the extent that such Data is required for the running of a particular Event. The Vendor shall ensure that it has relevant contracts in place with such third parties that impose obligations on such third parties that are equivalent to and as protective as those set out in clauses 12.5 and 25 below, and all other obligations required under Applicable Data Protection Laws.
12.5. Each party shall:
(a) ensure that it complies with all applicable privacy and data protection laws and regulations when processing Data (including the GDPR) (“ Applicable Data Protection Laws”);
(b) process Data fairly and lawfully in accordance with Applicable Data Protection Laws; and
(c) ensure that it has in place appropriate technical and organizational security measures to protect against unauthorized or unlawful processing of the Data, and against accidental loss or destruction of, or damage to, the Data.
12.6. Where the Vendor wishes to conduct direct marketing in relation to a Data Subject (“ Vendor Marketing”), it shall satisfy itself that it has a legal basis to do so in accordance with Applicable Data Protection Laws.
12.7. The parties agree that DICE may obtain consent from a Data Subject on the Vendor’s behalf (at DICE’s sole discretion), for the purposes of the Vendor conducting Vendor Marketing. The following shall apply to any such arrangement:
(a) to the extent required by Applicable Data Protection Laws, DICE shall present a consent notice regarding the Vendor Marketing (“ Consent Notice”);
(b) Vendor shall limit its Vendor Marketing to activities that are permitted by Applicable Data Protection Laws, and within the scope of the Consent Notice; and
(c) if a Data Subject provides their consent using the Consent Notice and subsequently communicates a request to a party to withdraw their consent to such Vendor Marketing during the Term: (a) the party receiving such withdrawal request shall promptly notify the other party in writing, and (b) the Vendor shall ensure that it immediately respects the Data Subject’s withdrawal of consent.
12.8. The Vendor shall immediately inform DICE in writing if, in the Vendor’s opinion, any act or omission by the Vendor or DICE in relation to this Agreement infringes the Applicable Data Protection Laws or any other Applicable Laws relating to privacy or data protection and explain the reasons for its opinion, provided that this shall be without prejudice to clause 12.5(a).
12.9. The Vendor shall implement and maintain, at its own cost and expense, appropriate technical and organizational security measures to protect Data and to ensure the processing of any Data is in compliance with Applicable Data Protection Laws.
12.10. The Vendor shall, at its own cost and expense, provide such information, co-operation and other assistance to DICE as DICE requires (taking into account the nature of processing and the information available to DICE) to ensure compliance with DICE’s obligations under the Applicable Data Protection Laws.
12.11. The Vendor shall, at its own cost and expense, provide and procure reasonable access to DICE or any of its agents acting on behalf of DICE access to the Vendor’s facilities, equipment, premises, sites, personnel as required for DICE to comply with is obligations under the Applicable Data Protection Laws.
12.12. Clause 12.5(a) shall survive termination or expiry of this Agreement.
13.1. The Vendor shall accept all Tickets Purchased, including digital Tickets generated by the DICE Services, in order to admit Customers to each Event. The format of such digital Tickets shall be notified by DICE to the Vendor prior to the Event.
13.2. If an Event requires a physical Ticket then DICE shall fulfil the delivery of the Tickets to Customers, and DICE shall be entitled to charge the DICE Postage Fees to the Vendor.
13.3. The Vendor is responsible for ensuring the authenticity of any Tickets produced by a Customer at the time of admission,
13.4. Where DICE is required to provide a physical Ticket to Customers, DICE shall be entitled, at its sole and absolute discretion, to advertise or sell advertising on the reverse of any ticket. DICE shall use its reasonable endeavors to ensure that any advertiser or advertising is not directly or indirectly in competition with the Vendor or the Event. DICE shall not be liable for any false, inaccurate or misleading information contained with any advertisements displayed on the Tickets.
13.5. If insufficient time prevents the delivery of Tickets to Customers, the Vendor will ensure that an email or electronic confirmation is sent to the Customer with an appropriate reference number to allow the Customer to exchange the confirmation for a Ticket on arrival at the Venue. The email confirmation may state that the Customer should exchange the confirmation for a bona fide Ticket at another specified location. The Vendor shall accept the email confirmation as Tickets Purchased.
13.6. The risk of counterfeit or stolen Tickets shall rest solely with the Vendor. The Vendor shall indemnify DICE in respect of all Losses suffered or incurred by DICE in connection with counterfeit or stolen Tickets (save where caused by any breach of this Agreement by or negligence of DICE).
13.8. DICE shall only offer the number of Tickets to Customers that the Vendor confirms in writing that DICE shall be entitled to offer taking into account the capacity of Venue, any relevant health and safety legislation and any other matters which the Vendor shall be entitled to consider by law.
13.9. Where the Event Information stipulates a minimum age requirement for a Customer to attend an Event, the Vendor shall be fully responsible that the Customer presents valid identification at the time of admission.
13.10. The Vendor agrees to comply with any security instructions and guidelines in relation to the offering of Tickets for Purchase as notified by DICE to the Vendor from time to time.
14. Vendor’s Warranties
14.1. The Vendor warrants that:
(a) this Agreement has been duly authorized, executed and delivered by the Vendor and constitutes the valid, legal and binding agreement of the Vendor, enforceable in accordance with its terms;
(b) it has all necessary rights and permissions to sponsor and/or promote each Event and to perform the Vendor's obligations under this Agreement;
(c) it has all necessary rights and permissions to appoint DICE as a disclosed agent and to authorize DICE to offer Tickets for Purchase on the Vendor’s behalf;
(d) this Agreement will not result in any breach of, or constitute default under, any other agreement to which the Vendor is a party, including, without limitation, any agreement for the sale or other disposition of Tickets for an Event;
(e) it has experience in advertising, marketing and otherwise promoting Events and acknowledges the risk inherent in doing so, and the Vendor shall not rely on DICE for anything other than Ticket distribution services as expressly provided in this Agreement; and
(f) it is the legal owner or lawful licensee of the Materials, Data, or Event Information (if applicable), has the right to grant DICE all rights and licenses under this Agreement, including such rights and licenses to the Materials, Data, and Event Information, and that DICE's use of the Materials, Data, and Event Information does not infringe any third party rights (including third party Intellectual Property Rights).
15.1. Either party may immediately terminate this Agreement by giving notice in writing to the other party if:
(a) the other party commits a material breach of any of any term of this Agreement which is incapable of remedy or, if such breach is remediable, fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
(b) the other party persists in any breach of any of the terms of this Agreement after having been required in writing to remedy or desist from such breach within a period of thirty (30) days; or
(c) the other party is subject to an Insolvency Event.
16. Effects of Termination
16.1. Termination of this Agreement however caused shall be without prejudice to any rights or liabilities of either party accrued at the date of termination.
16.2. Upon termination of this Agreement for any reason the Vendor shall:
(a) immediately pay to DICE any sums owed by Vendor to DICE under this Agreement;
(b) reimburse DICE for any Advance for an Event that has not taken place prior to the date of termination of this Agreement;
(c) repay a pro rata portion of any Sign On Fee paid by DICE, to reflect the unexpired portion of the Initial Term;
(d) pay a sum equal to the amount of any shortfall between any Advance paid and the total Sales Proceeds at the date of termination;
(e). pay a sum equal to the amount of any shortfall between any Fee Advance paid and the total amount of the Fee Advance recouped by DICE at the date of termination;
(f) remove all references to DICE and the DICE Logos on any advertising, marketing and promotional materials or on the Vendor's internet sites or applications relating to Events; and
(g) cease to use any DICE Logos or Intellectual Property Rights of DICE; and
(h) remove any links to any of DICE’s websites from the Vendor's website(s) or application(s).
16.3. Upon termination of this Agreement for any reason DICE shall:
(a) cease to promote, market and advertise the Tickets;
(b) cease to use the Materials; and
(c) have no responsibility to make any further payments to the Vendor, save for any payments already accrued and due before the date on which the Agreement is terminated.
16.4. Save as otherwise expressly provided herein, upon termination or expiry of this Agreement, neither party shall have any further obligation to the other under this Agreement. Termination shall not affect the operation of Clauses 5.3 and 5.4 (Event Information), 9 (Payment and Distribution of Funds), 10 (Intellectual Property), 12 (Customer Personal Data), 16 (Effects of Termination), 18 (Liability to Customers), 20 (Limitation of Liability), 21 (Indemnity), 25 (Confidentiality) and 33 (Applicable Law) or any other term which either expressly or by implication is intended to come into or remain in force on or after termination.
17. The Vendor Acknowledgements
17.1. The Vendor acknowledges that the Venue shall reserve the right on reasonable and lawful grounds to refuse entry to or remove from the premises any ticket holder without refund. By way of example, the Venue management may remove a Ticket holder who:
(a) has behaved in the Event Venue in a manner which, in the reasonable opinion of the venue management has, or is likely to, affect the enjoyment of other visitors; or
(b) uses threatening, abusive or insulting words or behavior, or in any way provokes or behaves in a manner which may provoke a breach of the peace; or
(c) the reasonable opinion of the venue management, is acting under the undue influence of alcohol or drugs; or
(d) fails, when required, to produce proof of identity or age (as or when appropriate).
17.2. DICE accepts no liability whatsoever for any Losses incurred as a result of the events listed in 17.1 above.
18. Liability to Customers
18.1. The Vendor shall be solely responsible to Customers for Tickets and Events and the quality or nature Events, including, but not limited to, the sound quality, accessibility, and other aspects relating to the performance of the Event or the attendance of the Customer at the Event including, but not limited to, any Customer property.
18.2. The Vendor acknowledges that the services provided by DICE under this Agreement are limited to serving as the Vendor's agent for the sale of Tickets on behalf of the Vendor, which have been allocated to DICE by the Vendor. Therefore, DICE’s liability to Customers is limited to its role as an agent for the fulfilment of Purchases.
18.3 The Vendor shall be solely responsible for ensuring it complies with all relevant legal and statutory requirements including, but not limited to, compliance with all and any applicable health and safety legislation.
18.4 Nothing in this agreement limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury;
(b) fraud or fraudulent misrepresentation; or
(c) any liability that cannot be excluded or restricted by law.
19. Disclaimer of Warranty
19.1. DICE EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE USE OF DICE'S COMPUTER SYSTEMS (INCLUDING THE DICE SERVICES) OR OTHER ONLINE SERVICES (COLLECTIVELY “ SYSTEMS”) WILL BE UNINTERRUPTED OR THAT THE SYSTEMS WILL BE ERROR FREE OR THAT THE SPECIFICATIONS OR FUNCTIONALITY OF THE SYSTEMS WILL MEET THE VENDOR REQUIREMENTS. IF FOR ANY REASON THE SYSTEMS ARE INTERRUPTED, THE VENDOR AGREES THAT DICE SHALL NOT BE LIABLE TO THE VENDOR, ANY CUSTOMER OR ANY THIRD PARTY FOR ANY LOSSES.
19.2. DICE'S SYSTEMS ARE PROVIDED TO THE VENDOR ON AN “AS-IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR USE WITH RESPECT TO THE INTERNET OR USE OF INFORMATION IN CONNECTION WITH ANY SYSTEMS PROVIDED IN THIS AGREEMENT, AND ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.
19.3. The Vendor acknowledges that electronic communications and databases are subject to errors, tampering and break-ins. While DICE agrees to take reasonable security precautions to avoid such occurrences, DICE does not guarantee or warrant that such events will not take place.
20. Limitation of Liability
20.1. DICE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFIT, BUSINESS, REVENUE, DATA, GOODWILL OR REPUTATION, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO DICE’S SYSTEMS OR THIS AGREEMENT WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT DICE HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE..
20.2. DICE'S TOTAL MAXIMUM LIABILITY WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE ARISING UNDER OR IN CONNECTION WITH EACH EVENT LISTED ON THE DICE SERVICES SHALL NOT EXCEED AN AMOUNT EQUIVALENT TO THE SERVICE FEES PAID TO DICE IN RESPECT OF THE RELEVANT EVENT.
20.3. DICE'S TOTAL LIABILITY IN AGGREGATE WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE ARISING UNDER OR IN CONNECTION WITH THE AGREEMENT SHALL IN NO CIRCUMSTANCES EXCEED THE TOTAL SERVICE FEES PAID BY THE VENDOR TO DICE IN THE 12 MONTHS PRECEDING THE CLAIM.
20.4. Notwithstanding the foregoing, nothing in the Agreement shall be taken to limit or exclude any liability which DICE may have for any liability that cannot be excluded or restricted by law.
21.1. The Vendor shall indemnify DICE, defend and hold harmless DICE and DICE's affiliated or related companies and their respective joint venturers, successors, assigns, directors, officers, employees and agents (each a “ DICE Party”) and shall keep each of them fully and effectively indemnified against any and all Losses, imposed on, incurred by or asserted against any DICE Party arising from:
(a) any Event or Venue (other than and to the extent that any Losses arise directly from breach of this Agreement by DICE or DICE's negligence);
(b) any Ticket cancelled or otherwise rendered void by DICE at the Vendor's request;
(c) any advertisement, marketing or promotion (other than any material produced by DICE);
(d) the Vendor’s production and placement of fly-posters;
(e) the Materials (as defined in Clause 10.3) infringing any third party rights;
(f) the Event Information;
(g) counterfeit or stolen Tickets in accordance with Clause 13.6;
(h) any of the warranties or undertakings contained under Clause 5.3; or
(i) any breach, non- observance or non- performance of this Agreement by the Vendor.
22.1. During this agreement and for a period of two years afterwards, the Vendor shall maintain in force the following insurance policies with reputable insurance companies:
(a) public liability insurance of at least $1,000,000 per claim; and
(b) any other insurances required by law or regulation where the Vendor and/or Venue is domiciled.
22.2. The Vendor shall, at DICE’s request, promptly send a copy of the insurance policy certificates, details of the cover provided and the receipt for the premium to DICE on taking out and on renewing each policy
23.1. Any notice given or made under this Agreement shall be in writing and in English and signed by or on behalf of the party giving it and shall be served by hand delivery or by sending it by certified or registered mail, insured courier, or email. Any notice to the Vendor shall be sent to the address provided in the Particulars or to the email address provided by the Vendor to DICE from time to time. Any notice to DICE shall be sent to DICE’s address in the Particulars or by email to firstname.lastname@example.org
23.2. The parties agree that the provisions of this Clause 23 shall not apply in relation to the service of any process in any legal action or proceedings arising out of or in connection with this Agreement or the legal relationships established by this Agreement.
24.1. The Vendor represents and warrants that it:
(a) has not committed an offense (a “ Bribery Offense”) under the U.S. Foreign Corrupt Practices Act or any similar laws or regulations in any jurisdiction (“Anti-Bribery Laws”);
(b) has not been formally notified that it is subject to an investigation relating to alleged Bribery Offenses or prosecution under any Anti-Bribery Laws;
(c) is not aware of any circumstances that could give rise to an investigation relating to an alleged Bribery Offense or prosecution under any Anti-Bribery Laws.
24.2. The Vendor agrees that it:
(a) has in place, and shall maintain throughout the Term and until termination of this Agreement, adequate procedures designed to prevent persons associated with the Vendor (including an employee, sub-contractor or agent or other third party working on behalf of the Vendor) (an " Associated Person") from committing a Bribery Offense; and
(b) shall comply with applicable Anti-Bribery Laws and shall not, and shall procure that no Associated Person shall, commit any Bribery Offense or any act which would constitute a Bribery Offense; and
(c) shall not do or permit anything to be done which would cause DICE or any of DICE's employees, sub-contractors or agents to commit a Bribery Offense or incur any liability in relation to any Anti-Bribery Laws; and
(d) shall notify DICE immediately in writing if it becomes aware or has reason to believe that it has, or any of its Associated Persons have, breached or potentially breached any of the Vendor's obligations under this Clause 24. Such notice to set out full details of the circumstances concerning the breach or potential breach of the Vendor's obligations.
The parties shall, both during and after the term of this Agreement, keep confidential and not disclose to any third party this Agreement, any commercial or operational negotiations, agreements or arrangements entered into between them or any information relating to the business or operations of the other save as required by law or where the information in question has entered the public domain other than in breach of this Clause 25.
The Vendor shall not assign, charge or make over this Agreement or any of its rights or obligations without the prior written consent of DICE.
The Agreement may only be varied, modified or amended by a document signed by each of the parties. If any provision of the Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining provisions shall not be affected.
28. Third Parties
Except where expressly stated otherwise in this agreement, nothing contained in this Agreement, whether expressed or implied, is intended to confer any rights or remedies on any person other than the parties to this Agreement.
No failure or delay on the part of either party in exercising any right, power or privilege under this Agreement shall operate as a waiver of such right, nor shall any single or partial exercise of any such right preclude any other or further exercise of such tight or the exercise of any other right, power or privilege.
30. Force Majeure
While either party is unable to perform any obligation under this Agreement due to fire, act of God, act of terrorism, riot, labor dispute, power or telecommunications failure or any other happening or event beyond the control of the party concerned, that party's failure to perform that obligation shall not constitute a breach or default under this Agreement
Each party will perform its obligations under this Agreement as an independent contractor. Nothing contained in this Agreement will be construed to imply a joint venture or principal or agent relationship between the parties and neither party will have any right, power, or authority to create any obligation, express or implied, on behalf of the other in connection with performance of its obligations under this Agreement.
32. Entire Agreement
The Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter of the Agreement and supersedes any and all prior agreements and understandings relating to the matters provided for herein. The parties acknowledge that they have not relied on any oral or written representations made by the other party or the other party’s representatives in entering into the Agreement, including, but not limited to, any information or material provided by DICE's personnel and each party irrevocably and unconditionally waives any right it may have to rescind the Agreement or claim damages for misrepresentation, unless such misrepresentation was made fraudulently, or breach of any warranty not contained in this Agreement or implied by operation of the law.
33. Applicable Law
This Agreement and any issues, disputes or claims arising out of or in connection with it (whether contractual or non-contractual in nature such as claims in tort, from breach of statute or regulation or otherwise) is governed by, and construed in accordance with, the laws of the state of California, without reference to its choice of law rules. The parties hereby irrevocable consent to the exclusive jurisdiction and venue of the of the federal and state courts in Los Angeles County, California in connection with any dispute arising out of or in connection with this Agreement.