The following terms and conditions govern the services to be provided by tix4cause and the obligations of each party hereto as a result of this Agreement.
1. Scope of Services. tix4cause operates tix4cause.com (“Website”), a ticket exchange website where ticket holders (“Donors”) donate event tickets (“Tickets”) for the benefit of the participating cause of their choice. Cause hereby grants tix4cause a license to copy, display, and electronically distribute information related to Cause as provided or posted by Cause from time to time (collectively, “Cause Information”) for the purpose of integrating Cause with the tix4cause services offered to consumers through the Website (“tix4cause Services”), and to allow users to allocate to Cause proceeds from the sale of their Tickets. Upon execution of this Agreement, completion of application information as required by tix4cause, and delivery of the Cause Information in electronic form to tix4cause (“Registration Process”), tix4cause will include Cause in the Website.
2. Proceed Payments
A. Donations. Donors who make available Tickets through the tix4cause Services may select Cause as the beneficiary of the sale proceeds for such Tickets. tix4cause will credit to Cause’s tix4cause account one hundred percent (100%) of any such sale proceeds subject to: (a) the deduction of ten (10) percent of any such sale proceeds (Membership Fee), and (b) the deduction of shipping charges incurred by tix4cause for timely delivery of hard-copy Tickets from the applicable donor to tix4cause’s processing center (“Ticket Proceeds”). For the avoidance of doubt, service charges and shipping fees paid by Ticket buyers as part of the checkout process shall not be included in the purchase price when calculating Ticket Proceeds. The parties hereto acknowledge that Cause may at any time list for sale on the Website tickets it creates and issues for its own functions and events. All tickets sold for these events shall not be subject to a Membership Fee.
B. Payment Terms. Within thirty (30) days after the end of each calendar month, tix4cause will transfer to the bank account designated by Cause any Ticket Proceeds collected during such month. In conjunction with such transfer, tix4cause will provide Cause with an electronic accounting of all Ticket Proceeds for the applicable accounting period. Customer refunds, if any, may be offset against future payments to Cause.
C. 501(c) (3) Donor Acknowledgment. Once tickets donated to Cause by a Donor via the website are set on sale by tix4cause, tix4cause will provide a donor acknowledgment form to said Donor. By electing the electronic signature option on the tix4cause membership form, Cause authorizes tix4cause to include Cause’s electronic signature on such acknowledgment form and agrees to honor such form as if signed by Cause directly. Cause shall receive a copy of all 501(c) (3) letters addressed to donors of tickets benefiting Cause. Said letter shall include the name and address of the donor.
3. Intellectual Property. As between the parties, tix4cause shall retain all right, title and interest in and to the tix4cause Services and any portions and components thereof, including but not limited to, copyrights, patents, trade secrets and trademarks. As between the parties, Cause shall retain all right, title and interest in and to the Cause Information, including but not limited to, copyrights, patents, trade secrets and trademarks. Cause warrants to tix4cause that it has the right to provide tix4cause with all Cause Information, and that use of the Cause Information hereunder will not violate any applicable laws or regulations, including, without limitation, copyright, trademark, privacy and defamation laws. Cause agrees to defend, indemnify and hold tix4cause harmless (including court costs and reasonable attorneys’ fees) (i) from all consequences of tix4cause, Cause or end-users providing, posting, accessing or using the Cause Information or any other material provided by Cause hereunder, including without limitation, any breach of the foregoing warranty and (ii) for any claims related to Cause.
4. Trademarks. Cause hereby grants tix4cause the right to use Cause’s trademarks and logos on the tix4cause website as necessary to perform the tix4cause Services, and in marketing materials and press releases; Cause hereby warrants to tix4cause that tix4cause’s use of such trademarks and logos will not infringe any third party’s rights anywhere in the world. tix4cause grants Cause a revocable, non-transferable license to use the tix4cause logo, solely in the form and format provided by tix4cause, and solely for the purpose of displaying such logo in Cause’s marketing materials and on Cause’s website. Cause may not imply that it is an agent or a part of tix4cause. Upon termination of this Agreement for any reason, each party shall immediately cease all uses of the other party’s trademarks and logos. Goodwill from the use of each party’s trademarks hereunder shall inure solely to such party.
5. Term and Termination. This Agreement shall have a term extending for one (1) year, commencing on the date Cause completes the Registration Process and is activated on the site by tix4cause (Commencement Date), and shall be automatically renewed thereafter on an annual basis. With each renewal, Cause will continue to be bound by all of the terms and conditions of this Membership Agreement. Membership Fee is subject to change on an annual basis and tix4cause shall notify Cause of any change in Membership Fee at least thirty (30) days in advance of any renewal period. Either party may terminate this Agreement for any reason upon ten (10) days prior written notice to the other party. Sections 3 and 6 through 10 of this Agreement shall survive termination for any reason.
6. Warranties; Disclaimer. Each party represents and warrants to the other that it has the power and authority to enter into this Agreement and perform its obligations hereunder. In addition, Cause hereby represents and warrants that it is a tax-exempt organization under Section 501(c) 3 of the Internal Revenue Code and that it will maintain such status through the term of this Agreement. tix4cause MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE tix4cause SERVICES, THE tix4cause WEBSITE, NOR THE NUMBER OR AMOUNT OF DONATIONS GENERATED BY THE tix4cause SERVICES, AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
7. Confidentiality. Each party agrees that all business, technical and financial information they obtain from the other is the confidential property of the disclosing party (“Proprietary Information”). Except as otherwise expressly allowed herein, the receiving party will hold in confidence and not use or disclose any Proprietary Information of the disclosing party and this Agreement shall similarly bind its employees in writing. The receiving party shall not be obligated under this Section 7 with respect to information the receiving party can document: (i) is or has become readily publicly available without restriction through no fault of the receiving party or its employees or agents; or (ii) is received without restriction from a third party; (iii) was rightfully in the possession of the receiving party without restriction prior to its disclosure by the other party; or (iv) is independently developed by the receiving party without use of the disclosing party’s Proprietary Information. The receiving party may make disclosures required by law or court order provided the receiving party uses reasonable efforts to limit disclosure and to obtain confidential treatment. The parties acknowledge that breach of this Section 7 by the receiving party shall cause the disclosing party irreparable harm and therefore, in addition to any other remedies, the disclosing party shall be entitled to equitable or injunctive relief as a remedy for such breach.
8. Access and Security. tix4cause will use commercially reasonable efforts to secure and protect Cause’s tix4cause account from unauthorized access. Cause will be provided access to an administration page for its tix4cause account, and any sub-accounts, if applicable. Cause is responsible for designating authorized administrators for its tix4cause account and for maintaining the security and confidentiality of any passwords. tix4cause is not responsible for and shall not be liable in any way for any acts by Cause or its authorized administrators that result in any unauthorized access to Cause’s tix4cause account. From time to time, it may be necessary to take the Website offline for maintenance or other reasons. Cause shall not be entitled to any refunds or credits as a result of the Website being down.
9. Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, EXCEPT FOR BODILY INJURY, tix4cause WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR CLAIMS RELATED TO THE AVAILABILITY OR ACCURACY OF THE WEBSITE, THE tix4cause SERVICES OR THE SUCCESS OR LEVEL OF DONATIONS RESULTING THEREFROM; (II) FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR LOST PROFITS; OR (III) IN ANY CASE, FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO TIX4CAUSE HEREUNDER DURING THE SIX-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
10. General. Notwithstanding anything to the contrary, nothing contained herein shall be construed to prevent tix4cause from complying with privacy laws and regulations. tix4cause will not be responsible for any delay in the performance of its obligations hereunder caused by any acts, omissions, or events beyond tix4cause’s control. This Agreement represents the complete agreement and understanding between tix4cause and Cause with respect to the subject matter hereof, and supersedes any other written or oral agreement. The terms and conditions of this Agreement may only be modified or waived in a writing signed by both parties. The invalidity or unenforceability of any provision of this Agreement shall not affect the enforceability or validity of any other provision. This Agreement shall be governed by the laws of the State of Illinois, without regard to conflicts of laws provisions thereof. The sole jurisdiction and venue for actions related to the subject matter hereof shall be the Illinois state and U.S. federal courts having within their jurisdiction the location of tix4cause’s principal place of business and the parties hereby consent to such jurisdiction and venue. In any action to enforce rights or obligations under this Agreement, the prevailing party shall be entitled to recover costs and reasonable outside counsel fees.
11. Notices. Any notice under this Agreement shall be deemed given on the third business day following the mailing of any such notice, postage paid, to the address set forth above.