Offpeak Terms and Conditions

 

These Terms and Conditions (“Terms”) contain the terms and conditions under which OSIX, Inc. dba Offpeak (“Osix” or “Offpeak”) agrees to grant Clients or Consumers access to and use of Osix’s online platform and services, including the offpeak.com website which is owned and operated by Osix, and other sites that make up Offpeak Sites.  By using or visiting these sites or agreeing in writing (including via email communications) with Offpeak to purchase or list Tickets on any Offpeak Sites, you expressly agree to be bound by and to follow these Terms and all applicable laws and regulations governing these sites. Please read these Terms carefully.

 

The parties agree as follows:

 

1. DEFINITIONS

1. “Affiliate” means any entity that, directly or indirectly, controls, is controlled by or is under common control with such entity (but only for so long as such control exists), where “control” means the ownership of more than 50% of the outstanding shares or securities representing the right to vote in the election of directors or other managing authority of such entity.
2. “Chargeback” means a request to invalidate a payment that a Consumer files directly with (a) his or her debit or credit card company; (b) his or her debit or credit card-issuing bank; or (c) any other entity that provides payment services.
3. “Client” means the entity entering into an agreement with Offpeak to sell Tickets on any Offpeak Site.
4. “Client Content” means (a) each and all of the text, graphics, logos, video, audio, information, data, software, and other content and materials relating to the Client’s Tickets which are produced or provided by or for Client, and (b) any and all copyrights, trademarks, and other intellectual property and proprietary rights related thereto, as now or hereafter constituted and in any form or media.
5. “Client Point of Contact” means one or more of employees that the Client designates to be the point of contact with Offpeak for coordinating communication between the Client and Offpeak with regard to matters including, but not limited to, acceptance of Fees and any other business terms, delivery of Client Content, making changes to Client Content, etc. The Client is responsible for the accuracy, quality, and integrity of the Client Content that Client or its users provide to Offpeak.
6. “Confidential Information” means information in any form, whether oral or written, of a business, financial, or technical nature which is disclosed by a party (“Disclosing Party”) in the course of these Terms and which the recipient (“Receiving Party”) reasonably should know is confidential, but excluding the information listed in Section19b. The terms of these Terms (including pricing) are each party’s Confidential Information.
7. "Consumer(s)" means one or more individuals or entities that (a) reserves or purchases a Ticket on any Offpeak Site, or (b) is otherwise a registered user of any Offpeak Sites.
8. “Effective Date” means the date when the Client’s Tickets are first listed for sale on any Offpeak Site.
9. “Fraudulent Charge” means a credit or debit card charge by a Consumer that is determined by the card company or payment processor to be fraudulent.
10. “Offpeak Content” means all information, data, products, materials, and all other content, software, and services made available on or through the Offpeak Sites or otherwise generally provided to Client by Offpeak.
11. “Offpeak Fees” means the Commissions, Flat Fees, and other amounts payable to Offpeak, as set forth in writing between Offpeak and the Client.
12. Offpeak Sites” means any Offpeak offering that consists of the offpeak.com website, the Offpeak mobile application, any other Offpeak online platform for Clients or Consumers, or any third party website, mobile application, or other online or offline platform that resells Client’s Tickets that have been previously allocated or promised to Offpeak. The Offpeak Sites include related Offpeak Content. Offpeak does not control and is not responsible for any third party websites or platforms that resell Client’s Tickets that have been previously allocated or promised to Offpeak nor any related content, products, services, and information accessible from or provided through any of them.
13. “Offpeak Times” means the days and times of the week that are considered to be non-prime times for attending the Client’s events, experiences, or activities as determined jointly, and updated jointly from time to time, by the Client and Offpeak.
14. "Prime Tickets” means any tickets sold by the Client for Consumer entry to the Client’s events, experiences, or activities during non-Offpeak Times.
15. "Ticket(s)" means a document, electronic document, or token which gives the holder a right to enter or participate in one or more of the Client’s events, experiences, or activities, or other goods or services, which is listed on any part of the Offpeak Sites.
16. “Voucher” means a confirmation of Ticket purchase provided by Offpeak to a Consumer after processing the Consumer’s Ticket purchase.

 

2. THE SERVICES

1. Summary of Services.  Client agrees that Offpeak and Client will negotiate and agree in writing to specific business terms and conditions between the parties, such as Offpeak Times, Offpeak Fees, prices for Tickets, Voucher expiration terms, any applicable end date for listing Tickets, and Client Content so that Offpeak may list the Client’s Tickets for sale on Offpeak Sites.  Offpeak will market these tickets to the general public or Consumers, who after purchasing, will be presented with a Voucher to redeem for entry to the Client’s events, experiences, or activities during Offpeak Times.  This Summary of Services is for illustrative purposes only, and the Terms in the remainder of this document take precedence over the language in this paragraph.
2. Changes to Terms. From time-to-time Offpeak may change these Terms and reserves the right to make any and all such changes.    

 

3. SALE AND PERFORMANCE OF SELLING TICKETS

1. Seller of Record. Client agrees that it is the sole seller of record of all Tickets, and that Offpeak’s activities are undertaken solely to assist Client in facilitating the sale of such Tickets. Offpeak will not be a party to any agreement between the Client and the Consumer, and the Client is directly responsible for any and all breaches or other liabilities occurring in connection with the Tickets.  Client agrees that any post Ticket purchase issues shall be diligently resolved by the Client and by dealing directly with the Consumer.  Offpeak may facilitate resolution of issue at our discretion.
2. Collection of Payment from Consumers. Client appoints Offpeak as its agent to collect credit and debit card payments on its behalf from Consumers for purchases of Tickets made through the Offpeak Sites.  Offpeak will use third party payment processors for all credit and debit card transactions as determined solely by Offpeak, and these Terms will be subject to the requirements of such processors and of applicable law.
3. Vouchers. Offpeak will provide each purchasing Consumer with a Voucher and directions on how to use a Voucher to redeem the purchased Tickets. Client agrees to fully and faithfully accept and honor all Vouchers sold to Consumers and to abide by the terms and conditions as stated on the Voucher at the time of purchase. Client will accept Vouchers presented on mobile devices unless otherwise agreed upon in writing.

 

4. OFFPEAK SITES

1. License. Subject to Client’s full compliance with these Terms at all times, Offpeak grants to Client a limited non-exclusive, non-sublicensable, non-transferable, non-assignable and revocable right and license during the Term to, when made available by Offpeak, access and use the Offpeak Sites solely for its internal business purposes in order to manage and update the listing of the Client Tickets on the Offpeak Sites and to access information about the Tickets sold, Consumers who have purchased Tickets, and other related information ("Offpeak Sites License"). The use of the Offpeak Sites for any purpose not expressly permitted by these Terms is prohibited and will be deemed to be a material breach of these Terms.
2. Customer Support. Offpeak will provide commercially reasonable customer support to Clients. However, in the event that Consumers contact Client directly, Client’s own employees will respond to requests for support to the extent Client is qualified to do so, and otherwise such requests must be immediately referred to Offpeak.

 

5. FEES

1. Fees. As further detailed in Section 12, Offpeak shall receive compensation for listing and selling Client’s Tickets purchased through any of the Offpeak Sites or any third party or partner sites. These Fees may consist of compensation from the Consumer or the Client. The specific fees received by Offpeak from the Client will be communicated to and agreed by the Client in writing.
2. Additional Compensation. Offpeak may also receive additional commissions or other compensation from third parties in connection with the sale of Client’s Tickets through the Offpeak Sites or otherwise, which shall be for the sole benefit of Offpeak.

 

6. LISTING OF TICKETS

1. Listing. Offpeak may list or have listed at its sole option one or more of the Client’s Tickets on any part of the Offpeak Sites, and Client will allow Consumers to purchase the listed Tickets. However, Offpeak may reject or discontinue the listing or sale of any of the Tickets in its sole discretion without prior notice.
2. Access and Support. Client agrees to provide Offpeak with the same access and support necessary to market, promote, and distribute the Tickets that Client makes available to other resellers.
3. Listing Content. Client must fully and accurately describe the Tickets being offered on the Offpeak Sites at all times, provided that Offpeak reserves the right to exercise final editorial control.  Listings may include Tickets that are pre-approved by Offpeak in its sole discretion, however Client is solely responsible for the accuracy of all Client Content.  Client agrees to immediately notify Offpeak in writing if any of the Client Content or Tickets do not comply with all applicable laws.

 

7. LISTING CHANGES

1. The Client Point of Contact will be responsible for continuously updating the scheduling and pricing for the Tickets by communicating any changes to Offpeak. Client will promptly provide updated Client Content to Offpeak when requested by Offpeak.
2. If Client wants to change a Client Content on the Offpeak Sites (other than the scheduling and pricing of such Tickets), Client must provide Offpeak with prior written notice of the proposed change at least thirty (30) business days in advance. No changes to the Tickets will become effective on the Offpeak Sites without Offpeak’s approval in its sole discretion.
3. If Client wants to stop offering Tickets on the Offpeak Sites, Client must provide Offpeak with prior written notice of the proposed discontinuance at least ten (10) business days in advance.

 

8. PROMOTION, MARKETING AND PRICING OF TICKETS

1. Promotion by Offpeak. Offpeak has the unlimited right and option to promote Client’s Tickets on or through Offpeak Sites, email marketing, and any other online or offline third-party marketing channel as determined by Offpeak in its sole discretion.  Offpeak also may identify the Client as a client of Offpeak, and Client consents in advance to all such uses.  The manner and method by which Tickets are displayed on Offpeak Sites, and to what extent, frequency, and duration, also will be determined by Offpeak in its sole discretion.
2. Ticket Pricing. Client and Offpeak are jointly responsible for negotiating and setting prices for Tickets, provided that Offpeak and its sublicensees will have the right to offer the Tickets to Consumers at the lowest retail prices and best terms offered by Client for such Tickets in the same or similar market ("Lowest Retail Price").  If Offpeak determines that Client’s pricing is not the Lowest Retail Price for the relevant Tickets, Offpeak may use the lower price on the Offpeak Sites.

 

9. TICKET SALE LOGISTICS

1. Sale and Vouchers. Offpeak will sell the Tickets on Client’s behalf to Consumers through the Offpeak Sites, provide each purchasing Consumer with a Voucher, and inform Client in a timely manner that a Ticket has been purchased.  The retail price of each Voucher will be the "all inclusive" and total charge made to the Consumer for the Ticket, unless otherwise expressly noted in the Offpeak Site listing.  
2. Honoring Vouchers. The Client understands that, unless otherwise agreed by Offpeak in writing, regardless of any timed entry requirements set by the Client for Prime Tickets, that Vouchers are to be valid (and accepted by the Client for Consumers to gain entry to the Client’s event, experience, or activity) during all Offpeak Times during the 30 days (or the number of days as agreed by both Parties) following the date of Ticket purchase by the Consumer, even after the Term of these Terms expire.  If the Client’s event, experience, or activity is not open or available when the Consumer seeks to redeem the Voucher, then subject to applicable law, (a) Client agrees to offer the Consumer a similar service of equal or greater value and resolve any post purchase issues directly with the Consumer, and (b) if the Consumer refuses the alternative offer, then Offpeak reserves the right to issue a full refund to the Consumer and deduct the same from any current or future payments due to Client.   Notwithstanding the forgoing, Client will (a) notify Offpeak 5 days in advance of any closures or changes to operating hours so Offpeak can notify Voucher holders of the changes and update all Offpeak Sites with this information, and (b) update the Client’s website prominently showing any change in operating hours.
3. Redeeming Vouchers.  Consumer understands and agrees that all Vouchers for Tickets purchased are valid only for entry during off-peak times (as defined on the Voucher) during the 30 days (or the number of days as agreed by both Parties) following the purchase date.  The Consumer understands and agrees that Client will make best efforts to honor entry during these hours, but that emergency closures can sometimes occur, so the Consumer is therefore responsible for checking the Client’s event website and Offpeak Sites for any changes to operating hours prior to arrival.
4. Legal Compliance. Client agrees to comply with all applicable laws with respect to the Tickets and the other subject matter of these Terms.  Client’s obligations under these Terms shall include compliance with laws prohibiting the provision of alcohol or tobacco or other restricted products to minors.  If Client refuses to accept a Voucher because Client believes it is unlawful to do so, Client will notify Offpeak immediately in writing and Offpeak shall be relieved of any obligation to pay Client for the Tickets represented by the Voucher.

 

10. FEEDBACK AND REVIEWS.

1. Client (a) agrees that Offpeak Sites may implement mechanisms that rate, and allow Consumers to rate, and provide photos, videos, reviews and commentary regarding Client, Client’s event, experience, or activity, and the Client’s Tickets (together "Feedback"); (b) consents to Feedback being made publicly available and distributed; (c) agrees that all Feedback is (as between the parties) owned by Offpeak or the relevant third party provider, except for any Client Content included therein; (d) agrees that neither Offpeak nor any third party provider shall have any responsibility or liability to Client or an Affiliate in the case of negative or disputed Feedback, and all such responsibility or liabilities are hereby disclaimed; and (e) agrees that Offpeak or the third party provider may limit Client’s activities on the Offpeak Sites based upon Feedback.  Client also agrees to not upload any feedback from any other third party websites to the Offpeak Sites without the prior written consent of Offpeak (which may be withheld in its sole discretion), and to not self-generate positive Feedback regarding the Client, Client’s event, experience, or activity, or Client’s Tickets or upload any negative Feedback for other merchants on the Offpeak Sites, either directly or by persons under Client’s direction.

 

11. DATA.

1. Offpeak owns all individual Consumer and sales information collected by Offpeak in connection with the Tickets sold through the Offpeak Sites.  Any such information about a Consumer provided by Offpeak to Client shall be used by Client solely to honor the Consumer’s Voucher and provide entry or other agreed upon services to the Consumer as stated on the Voucher.

 

12. FEES; COLLECTION AND REMITTANCE; CHARGEBACKS; REFUNDS

1. Fees. Offpeak shall be paid a commission (“Commission”) or a flat fee (“Flat Fee”) on all of the Tickets purchased through Offpeak Sites, as set forth and agreed to in writing between Offpeak and the Client.  Offpeak will also be paid any other Offpeak Fees as agreed to in writing between Offpeak and the Client. Offpeak will withhold and retain the Offpeak Fees for its own account from Consumer Payments (defined below) and remit any net Client Payment (defined below) to Client as described below.  Offpeak also reserves the right to invoice Client for Offpeak Fees in Offpeak’s sole discretion.  Payment of each invoice is due within thirty (30) days of the invoice date.  Client will reimburse any reasonable costs and expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Offpeak to collect any amount that is not paid when due.
2. Collection and Remittance. Offpeak will typically fully receive payments collected by Offpeak from Consumers through Stripe, Shopify, or other third-party payment platforms within three (3) business days after the purchase date.  At Offpeak’s discretion but no later than on the Monday or Tuesday following receipt and clearance of payments from our payment processor, Offpeak will remit to Client, the total amount of the payments collected by Offpeak from Consumers for the Client Services (“Consumer Payments”) minus all Commissions, Flat Fees and other Offpeak Fees and amounts due to Offpeak, as well as all Consumer refunds, Chargebacks, and Fraudulent Charges.  All such payments by Offpeak are collectively referred to as “Client Payments”.  Unless otherwise agreed to in writing between the Client and Offpeak, Client Payments will be made at Offpeak’s discretion but no later than on the Monday or Tuesday following receipt and clearance of payments from our payment processor.  All Client Payments will be converted into and made in U.S. Dollars, unless otherwise agreed upon by the parties in advance.  Offpeak is not responsible for the collection or payment of any incidentals from Consumers.  Offpeak has the right to recoup any wire fees due to incorrect or incomplete bank information provided by the Client, and may exercise the right to do so.
3. Taxes. With respect to payments collected by Offpeak for purchases of Tickets on Offpeak Sites, Offpeak will collect and withhold from Consumers all applicable Transaction Taxes and will remit such Transaction Taxes to Client as part of the Client Payments.  “Transaction Taxes” means all applicable sales, use taxes, value added taxes (VAT), and other transactional taxes for purchases of Tickets.  Client is responsible for filing all returns and remitting all taxes and other governmental charges in connection with the sale of Tickets (including all Transaction Taxes, whether Offpeak collected the Consumer payment or Client collected the Consumer payment directly) and any payments accrued or received by Client for sale of Tickets, and Client agrees to fully indemnify, hold harmless and defend Offpeak and its Affiliates and contractors from all liabilities related to taxes and other governmental charges. Client also agrees to fully comply with all applicable laws and to timely file and remit all taxes and other charges to the appropriate tax or other authorities.  Offpeak further may be legally required to report the Client Payments and other payments made to Client to tax or other governmental authorities under applicable law.
4. Chargebacks and Fraudulent Charges.

1. Handling of Chargebacks. In the event a Consumer who purchased Tickets initiates a Chargeback, Client agrees that Offpeak will deduct the full amount of the Chargeback, as well as any associated fees, fines, or penalties, from Consumer Payments for the next Client Payment due to Client.  If Client’s next Client Payment is insufficient, Client agrees to pay Offpeak the full Chargeback balance upon invoicing as set forth in Section 12a.  Offpeak agrees to use reasonable efforts to investigate and, if appropriate, challenge suspect Chargebacks.  Client agrees to use reasonable efforts, at Client’s expense, to assist Offpeak, at Offpeak’s request, in the investigation of any such suspect Chargebacks.  If Offpeak, in its sole judgment, determines that a separate agreement sufficiently protects it from a particular Chargeback, Offpeak may, in its sole discretion, waive Client’s obligation to compensate Offpeak directly.
2. Excessive Chargebacks. If Offpeak determines that Client is incurring excessive Chargebacks, Offpeak may establish controls or conditions governing Client’s account, such as: (a) establishing new processing fees, (b) delaying payouts, (c) refusing the award of Chargebacks, or (d) terminating or suspending services.
3. Fraudulent Charges. In the event of a Fraudulent Charge, Client agrees that Offpeak will deduct the full amount of the Fraudulent Charge, as well as any associated fees, fines, or penalties, from Consumer Payments for the next Client Payment due to Client.  If Client’s next Client Payment is insufficient, Client agrees to pay Offpeak the full balance upon invoicing as set forth in Section 12a.

5. Refunds. All Offpeak Ticket sales are final and no refunds will be provided to Consumers for any reason.  However, if Offpeak, in its sole discretion agrees to pay a refund to a Consumer, (a) Offpeak will initiate the refund to the Consumer and cancel the Consumer’s Voucher, (b) Offpeak will not charge or retain any applicable Commission on the applicable transaction, and (c) Offpeak will not be responsible for paying any amount to the Client for such transaction, except to the extent otherwise agreed to in writing between the Client and Offpeak.  If Offpeak has already remitted Client Payments to the Client for a Ticket which has been refunded by Offpeak to the Consumer, Client agrees to reimburse Offpeak for this amount.  Offpeak reserves the right to withhold this amount from future Client Payments.

 

13. PROPRIETARY RIGHTS

1. Offpeak Property and Rights. Client acknowledges and agrees that Offpeak and its successors and assignees are and will remain the exclusive owners in all jurisdictions of the Offpeak Sites and Offpeak Content, including all patents, copyrights, trademarks, trade secrets, moral rights, and other intellectual property rights and proprietary rights related thereto, excluding only the Client Content (together, “Offpeak Property and Rights”). All rights not expressly granted to Client under this Agreement are hereby reserved by Offpeak, and no license or other rights are being granted by Offpeak by implication, estoppel or otherwise.
2. Client Content. Offpeak acknowledges and agrees that, as between Offpeak and Client, Client is and will remain the exclusive owner in all jurisdictions of the Client Content, including all patents, copyrights, trademarks, trade secrets, moral rights, and other intellectual property rights and proprietary rights related thereto. Client hereby grants to Offpeak a worldwide, nonexclusive, fully-paid up, royalty-free, transferable right and license (with right to sublicense through multiple tiers) during the Term to copy, reproduce, distribute, disclose, publish, broadcast, communicate, display and/or perform (whether publicly or otherwise), host, store, prepare derivative works from, translate, modify or combine with other data or information or content, and/or otherwise use any and all of the Client Content and to have others exercise such rights and license on behalf of Offpeak in connection with the sale of Tickets on the Offpeak Sites.
3. Client Input. Offpeak welcomes any feedback or other input that Client may provide Offpeak concerning improvements to the Offpeak Sites (“Input”). Input excludes Client’s Confidential Information.  By providing Input to Offpeak, Client agrees that all Input becomes Offpeak’s exclusive property, and Client hereby assigns to Offpeak all its rights to Input, including all intellectual property rights in Input. At Offpeak’s request and expense, Client agrees to execute documents and take such further action as Offpeak may reasonably request to assist it in acquiring, perfecting, or maintaining intellectual property rights in Input.

 

14. RESTRICTED ACTIVITIES. Client agrees that it will not directly or indirectly:

1. infringe upon or misappropriate any Offpeak Property and Rights, or remove or alter any proprietary notices or labels;
2. take any act which undermines the integrity or functionality of or interferes with, or transmits or uploads any content or code which contains a virus, Trojan horse, worm or other harmful component, or circumvents or disables any security or data protection measures for any part of the Offpeak Sites;
3. reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of the Offpeak Property and Rights;
4. circumvent or disable any technological or security features or measures in the Offpeak Sites;
5. rent, lease, or sublicense the Offpeak Sites or otherwise provide unauthorized access thereto;
6. reproduce, distribute, transmit, publish, display, perform, disclose, prepare derivative works from, translate, modify or combine or use any of the Offpeak Property and Rights, excepting only uses expressly permitted by these Terms;
7. upload or submit or transmit any Client Content or other material which (i) infringes upon or misappropriates the intellectual property rights or other legal rights of any third party, (ii) constitutes unlawful, obscene, harassing or offensive content or activity or (iii) breaches or violates any privacy or confidentiality or other legal obligations; or
8. frame, mirror, or link to any of the Offpeak Sites without the express written consent of Offpeak in its sole discretion.

 

15. INDEMNIFICATION

1. Indemnification by Offpeak

1. Indemnification. Offpeak agrees to fully indemnify, defend and hold harmless Client and its officers, directors, employees, representatives, and agents (collectively, “Client Indemnified Parties”) from and against any and all liabilities, losses, judgments, damages, or expenses, including but not limited to reasonable attorney’s fees and expenses (collectively, “Losses”), incurred by any Client Indemnified Party arising out of any third party claim, proceeding, or suit (each, “Claim”) that alleges that the use of the Offpeak Sites by the Client Indemnified Parties infringes or misappropriates any United States, patent, copyright, trademark, or other proprietary rights of such third party, if (a) the applicable Client Indemnified Party gives Offpeak prompt written notice of the Claim; (b) Offpeak has full and complete control over the defense and settlement of the Claim; (c) the applicable Client Indemnified Party provides assistance in connection with the defense and settlement of the Claim as Offpeak may reasonably request; and (d) the applicable Client Indemnified Party complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing materials).
2. Mitigation. If Client’s or their respective agents’ use of the Offpeak Sites is, or in Offpeak’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a Claim under Section 15a1, then Offpeak may either: (a) procure the continuing right of Client to use the Offpeak Sites; (b) replace or modify the Offpeak Sites in a functionally equivalent manner so that it no longer infringes; or if, despite its commercially reasonable efforts, Offpeak is unable to do either (a) or (b), Offpeak may (c) terminate Client’s rights to the Offpeak Sites under these Terms and provide Client with a prorated refund of prepaid fees, if applicable, covering the remainder of the Term.
3. Exceptions. Offpeak will have no obligation under this Section 15a1 for any infringement or misappropriation to the extent that it arises out of or is based upon (a) the combination, operation, or use of the Offpeak Sites with any software, services, tools, hardware, equipment, supplies, accessories, or any other materials or services not furnished by Offpeak or recommended in writing by Offpeak if such infringement would have been avoided but for such combination, operation, or use; (b) designs, requirements, or specifications for the Offpeak Platform that Client required or provided, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (c) use of the Offpeak Platform outside of the scope of the license granted to Client; (d) any modification of the Offpeak Sites not made or authorized in writing by Offpeak where such infringement would not have occurred absent such modification; or (e) the Client Content.

2. Indemnification by Client. Client agrees to fully indemnify, defend and hold harmless Offpeak and its officers, directors, employees, representatives, agents, distribution partners, and their respective successors and assigns (collectively, “Offpeak Indemnified Parties”), from and against any and all Losses incurred by any Offpeak Indemnified Party arising out of any Claim relating to or arising out of (a) any sales of the Client Tickets on Offpeak Sites; (b) Client’s breach of any provision, warranty, or representation in these Terms; (c) Client’s intentional acts or omissions or any form of negligence or other similar wrongdoing; (d) any infringement or misappropriation of intellectual property, privacy, or other rights by any Client Content; or (e) Client’s failure to comply with any applicable laws, if (i) the applicable Offpeak Indemnified Party gives Client prompt written notice of the Claim; (ii) Client has full and complete control over the defense and settlement of the Claim; provided, however, that Client shall not settle any Claim that admits liability or places any obligation on a Offpeak Indemnified Party; (iii) the applicable Offpeak Indemnified Party provides assistance in connection with the defense and settlement of the Claim as Client may reasonably request; and (iv) the applicable Offpeak Indemnified Party complies with any settlement or court order made in connection with the Claim (e.g., relating to the future use of any infringing materials).
3. Disclaimer. Neither Offpeak nor Client will be liable for any form of equitable or implied indemnification to the other with respect to this Agreement, the subject matter of this Agreement or otherwise.

 

16. WARRANTIES, DISCLAIMERS, AND LIMITATION OF LIABILITY

1. Mutual Warranties. Each party represents and warrants that it has power and authority to enter this Agreement, the person or entity executing this Agreement has the power and authority to bind the party to this Agreement, and its entry into and performance of this Agreement will not breach any contractual obligations with third parties.
2. Disclaimer. NOTWITHSTANDING ANY CONTRARY PROVISION, AND TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW:

1. THE OFFPEAK SITES AND ALL COMPONENTS THEREOF, AND ALL ADVICE, INFORMATION AND MATERIALS, ARE BEING PROVIDED TO CLIENT AND ANY RELATED PERSON OR ENTITY “AS IS” AND WITH ALL FAULTS. ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED OR STATUTORY) OF OFFPEAK OR ANY AFFILIATE ARE HEREBY EXCLUDED AND DISCLAIMED, INCLUDING BUT NOT LIMITED TO (a) ANY AND ALL IMPLIED OR OTHER WARRANTIES OF TITLE OR NON-INFRINGEMENT, (b) ANY AND ALL IMPLIED OR OTHER WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, USEFULNESS OR SUITABILITY, AND (c) ANY REPRESENTATION OR WARRANTY THAT THE OFFPEAK SITES OR ANY PART THEREOF WILL BE SECURE, RELIABLE, TIMELY, UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE; OR THE RESULTS THAT MAY BE OBTAINED FROM ANY OF THE FOREGOING.
2. ANY ACCESS TO OR USE OF THE OFFPEAK SITES SHALL BE AT CLIENT’S SOLE RISK AND CLIENT IS RESPONSIBLE FOR EVALUATING AND BEARING ALL RISKS ASSOCIATED WITH SUCH ACCESS AND USE.

3. LIMITATIONS OF LIABILITY. NOTWITHSTANDING ANY CONTRARY PROVISION OR ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY OF ANY KIND, TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, OFFPEAK WILL NOT BE LIABLE TO CLIENT OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR FOR ANY LOSS OF PROFIT, REVENUE, DATA, BUSINESS OR USE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF THE SUBJECT MATTER OF THIS AGREEMENT. IN NO EVENT WILL OFFPEAK’S CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING ANY RELATED CLAIMS, ACTIONS, OR CAUSES OF ACTION AND ANY CLAIMS FOR INDEMNIFICATION, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT OF OFFPEAK FEES PAID TO OFFPEAK FOR THE SALE OF TICKETS ON OFFPEAK SITES DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE OF THE EVENT FIRST GIVING RISE TO THE RELEVANT CLAIM, ACTION OR CAUSE OF ACTION. CLIENT UNDERSTANDS AND AGREES THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT AND ARE REASONABLE AND THAT IN THE ABSENCE OF SUCH LIMITATIONS THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THE FOREGOING LIMITATIONS SHALL NOT BE INCREASED BY MULTIPLE CLAIMS, ACTIONS, OR CAUSES OF ACTION WHETHER SIMILAR OR NOT.

 

17. INSURANCE

1. Client agrees to maintain in full force and effect adequate liability insurance coverage in connection with the sale of Tickets at all times during the Term and for a period of two (2) years following the end of the Term. Client agrees at the request of Offpeak to name Offpeak and its Affiliates as additional insureds on such insurance policies. This can generally be done easily and without additional cost by contacting the insurance broker or insurance company.  Client’s compliance with this Section 17 does not limit its indemnification or other obligations under these Terms.

 

18. TERM AND TERMINATION

1. Term. The term of this Agreement commences on the Effective Date and ends when cancelled by either party with written notice at least 30 days in advance (“Term”).
2. Termination. Either party can terminate this Agreement for cause (including any material breach of this Agreement by the other party) by immediate written notice to the other party.
3. Effects of Termination. Upon termination of this Agreement for any reason: (a) Client will purge all copies of all Offpeak Content from any computer, server, or other hardware and each party will return the other party’s Confidential Information; (b) each party’s respective rights and obligations under Sections  3, 5, 9b, 9d, 11, 12, 13, 14, 15, 16, 17, 18c, 19, 20 of these Terms, including the payment to Offpeak of all compensation obligations incurred prior to the effective date of termination, each shall survive and remain in full force and effect; (c) Client shall continue to fulfill all unused Vouchers, and all terms of these Terms with respect to the fulfillment of unused Vouchers (except all licenses granted by Offpeak) shall survive termination until their applicable expiration; and (d) all claims or causes of action in existence as of the date of termination shall survive.

 

19. CONFIDENTIALITY

1. Non-disclosure. The Receiving Party will take reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but not less than reasonable care, to prevent the unauthorized duplication or use of the Disclosing Party’s Confidential Information and the disclosure of the Disclosing Party’s Confidential Information to third parties without the Disclosing Party’s prior written consent.  The Receiving Party may disclose the Disclosing Party’s Confidential Information to the Receiving Party’s Affiliates, consultants, contractors, representatives and agents (including financial advisors, accountants and attorneys) (collectively, “Representatives”) who are acting on behalf of the Receiving Party and are bound by, or are otherwise protected by legal privilege or confidentiality and non-disclosure commitments on terms no less protective of the Confidential Information than the terms of these Terms.  If a Receiving Party is legally compelled to disclose the Disclosing Party’s Confidential Information, the Receiving Party shall (a) provide prompt written notice (if legally permissible) to the Disclosing Party so that the Disclosing Party can seek a protective order or other appropriate remedy, and (b) limit any such disclosure to the extent of the legal requirement, and the disclosed information will remain Confidential Information despite such disclosure.
2. Exceptions. Confidential Information excludes information which: (a) is or becomes (through no act or omission of the Receiving Party in breach of this Agreement), generally available to the public; (b) becomes known to the Receiving Party or any of its Affiliates on a non-confidential basis through a third party who is not subject to an obligation of confidentiality with respect to that information; (c) was lawfully in the possession of the Receiving Party or any of its Affiliates prior to such disclosure; (d) is independently developed by the Receiving Party or any of its Affiliates; or (e) the Disclosing Party agrees is not confidential or may be disclosed, to the extent of that consent.

 

20. GENERAL

1. Client Warranty. Without limiting Client’s other obligations, Client represents and warrants that (a) it will provide Tickets in a professional and safe manner at all times; (b) it will not infringe upon or misappropriate the intellectual property or other rights of any other person or entity with respect to the subject matter of these Terms; (c) Client has all necessary rights to grant the licenses granted by it to Offpeak, including the right to use the name, likeness, and identifying information of any identifiable person in the Client Content; and (d) Client possesses all licenses and registrations necessary to conduct its business and to provide all Tickets to be offered herein.
2. Governing Law. This Agreement and all matters relating to or in connection with this Agreement shall be governed by the laws of the State of California, United States of America, without regard to any conflict of laws principles that require the application of the laws of a different jurisdiction.
3. Arbitration. Notwithstanding any contrary provision hereof, all disputes, claims, controversies and matters relating to or in connection with this Agreement (or the breach thereof) or any transactions hereunder shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (“AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in Santa Clara County, California, USA before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in the English language. All arbitrations shall be conducted and resolved on an individual basis and not a class-wide, multiple plaintiff or similar basis. No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity.
4. Venue. Subject to Section 20c, any other actions (if any) arising out of or related to these Terms must be brought exclusively in the federal or state courts located in the County of Santa Clara, California USA, and each of the parties agrees that such courts shall have exclusive jurisdiction and venue for any such actions. Offpeak also may seek injunctive or other equitable relief for breach of these Terms in any court of competent jurisdiction wherever located. The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable attorney’s fees and costs from the other party.
5. Assignment. Client may not assign, transfer, delegate, or sublicense these Terms or any rights or obligations hereunder, either voluntarily or by operation of law or means of a merger, consolidation, or sale of stock or other ownership interest or other change of control or ownership, and any such purported act shall be null and void. Subject to the foregoing restrictions these Terms shall benefit and be binding upon each of the parties and their respective successors and permitted assignees. Other than in the case of indemnified parties, there shall be no third party beneficiaries of these Terms.
6. Notices. All notices and other communications (collectively “Notices”) required to be given or delivered to a party shall be in writing and addressed to the party at its principal corporate offices or as otherwise designated by notice hereunder. All Notices shall be deemed to have been given or delivered upon: (a) personal delivery; (b) three (3) days after deposit in the United States mail by certified or registered mail (return receipt requested); (c) two (2) business days after deposit with an internationally recognized overnight courier; or (d) one (1) business day after transmission by electronic mail. All Notices and other communications required or permitted under these Terms shall be made in the English language.
7. Miscellaneous. These Terms constitute the entire understanding and agreement with respect to its subject matter and supersedes all prior and other current agreements and discussions between the parties, provided that any confidential or proprietary information disclosed previously to Client shall be part of the Offpeak’s Confidential Information. The waiver by either party of any default or breach of these Terms shall not constitute a waiver of any other or subsequent default or breach. In the event that any of the provisions of these Terms shall be held to be invalid or unenforceable by a competent court or arbitrator, the remaining portions hereof shall remain in full force and effect and such provision shall be enforced to the maximum extent possible so as to effect the intent of the parties and shall be reformed to the extent necessary to make such provision valid and enforceable. When the context requires, the plural shall include the singular and the singular the plural, and any gender shall include any other gender. No provision of these Terms shall be interpreted or construed against any party because such party or its counsel was the drafter thereof. Notwithstanding any contrary provision of these Terms, whenever the words “include,” “includes” or “including” or any other variation are used in these Terms, such words shall be deemed, unless the context otherwise requires, to be followed by the words “without limitation.” Section headings are only for convenience and are not part of these Terms`.