Tixel

Event Organiser General Terms & Conditions

Tixel Pty Ltd (Tixel) enables the facilitation of ticket resales for various events, festivals and other forms of live entertainment via the Platform. The Platform provides unique functionality to event organisers via the Organiser Portal. These General Terms and Conditions apply to any person or entity who establishes an Event on the Platform or otherwise accesses or uses the Services as a promotor, sponsor, manager and/or event organiser of an Event (Event Organiser or you).

About these Terms

These General Terms and Conditions together with any Additional Terms or other terms applicable to the Event or Services that you use from time to time are expressly incorporated into these terms and conditions by reference (collectively referred to as the 'Terms'). These Terms constitute the entire agreement and understanding between the parties and supersede any terms or previous agreement between the parties in relation to its subject matter.

By creating an Event, or accessing or using the Services as an event organiser, you agree to be bound by these Terms.

If you object to any of our Terms your sole option is to cease to use the Services.

1. Definitions

1.1 Definitions

The following definitions apply to these Terms:

Additional Terms means any additional terms agreed in writing between the parties;

Authorisation means any consent, registration, filing, agreement, notice of non-objection, notarisation, certificate, licence, approval, permit, authority or exemption from, by or with a government agency;

Buyer means the buyer of a Ticket, including where applicable, the Event Organiser;

Buyer Fee means, in respect of a Transaction, the fees charged by Tixel to the Buyer from time to time;

Eventmeans each event owned, promoted, sponsored, managed and/or organised by the Event Organiser as identified in the Event Portal;

Event Settingsmeans, in respect of each Event, the product features or rules that have been applied to that Event and activated via the Platform;

Face Value means the original price of a Ticket as purchased by the Seller, including booking fees;

Insolvency Event means, in relation to a erson: (a) anything which reasonably indicates that there is a significant risk that such person is or will become unable to pay its debts as and when they fall due, including each of the following: (i) a meeting of the person's creditors being called or held; (ii) a step being taken to make the person bankrupt; (iii) an application being presented or an order made for the sequestration of the person's estate; (iv) a step being taken to wind the person up; (v) a step being taken to have a receiver, receiver and manager, administrator, controller, liquidator or provisional liquidator appointed to the person or any of its assets; (vi) the person entering into any type of agreement, composition or arrangement with, or assignment for, the benefit of all or any of its creditors; or (vii) the person ceases or threatens to cease to carry on its main business; or (b) the appointment of a receiver, receiver and manager, administrator, controller, liquidator or provisional liquidator to the person or any of its assets;

Intellectual Property Rights means any and all intellectual property rights (anywhere in the world, whether statutory, common law or otherwise) including patents, patent applications, utility models, copyright (including future copyright), trade marks, logos and design marks, service marks, trade names, business names, brand names, designs, know how, trade secrets, domain names, other names and locators associated with the world wide web, internet addresses, and including all applications and rights to apply for registration of such intellectual property rights;

Law means any law or legal requirement, including at common law, in equity, under any statute, regulation, by-law or Authorisation, and any decision, directive or requirements of any government agency;

Non-excludable Condition has the meaning given in clause 9(c);

Organiser Portal means the online portal (including APIs) accessible via the Platform which can only be accessed by the Event Organiser and which is not visible to the public;

Permitted Purpose means to access or use (i) the Services to facilitate the purchase and resale of Tickets to the Event and (ii) certain functionality within the Platform and/or Organiser Portal;

Platform means the online web-based platform (including APIs) for the resale of Tickets and the hosting of the Organiser Portal, owned and operated by Tixel;

Price Cap means the maximum percentage above the Face Value for which a Ticket can be listed for sale on the Platform;

Privacy Laws means all applicable laws that apply to the collection, use, disclosure and handling of personal information;

Representative means, in respect of a person, any director, officer, employee, agent, contractor, adviser or related party of or to that person, or any director, officer, employee, agent, contractor or adviser of or to a related party of or to that person;

Seller means the seller of a Ticket to the Event, including where applicable, the Event Organiser;

Seller Fee means, in respect of a Transaction, the fees charged by Tixel to a Seller (as may be varied from time to time);

Services means access to and use of the Platform and the Organiser Portal, and any other services which are related or ancillary thereto which are provided by Tixel from time to time, including setup and integration services and support and maintenance services;

Third Party Supplier means any sub-contractor or supplier engaged or utilised by Tixel in connection with the provision of the Services, other than a related party of Tixel;

Ticket means a ticket to an Event made available for resale via the Platform;

Transaction means the sale of a Ticket via the Platform between a Buyer and a Seller

2. Tixel responsibilities

2.1 Services and Organiser Portal

  1. During the Term, Tixel agrees to provide the Event Organiser with access to and use of the Services (including the Organiser Portal) in accordance with these Terms.
  2. The Organiser Portal will enable the Event Organiser to, amongst other things, monitor fan data, pricing insights, marketing information, sales tools and access the Event Settings.

2.2 Tixel responsibilities

In providing the Services and performing its obligations under these Terms Tixel must comply with all applicable Laws and hold all Authorisations required to provide the Services.

2.2 Third Party Suppliers

Tixel will not be liable for any failure or delay to perform or provide access to the Services to the extent that such failure or delay arises out of any failure or delay by a Third Party Supplier, including any third party hosting service.

3. Event Organiser responsibilities

3.1 Compliance with Laws

  1. The Event Organiser must:
    1. comply with all applicable Laws, including Laws applicable to Events and ticket sales;
    2. ensure that all Event Settings comply with all applicable Laws; and
    3. hold all required Authorisations in relation to each Event.
  2. The Event Organiser must immediately notify Tixel if the Event Organiser receives any complaint or third party queries relating to compliance of the Event Settings with applicable Laws. Without limiting the Event Organiser's obligations under clause 3.1(a), Tixel will use reasonable endeavours to provide support to the Event Organiser and help to mitigate any non-compliance issues in relation to an Event. If Event Settings cannot be updated directly by the Event Organiser, the Event Organiser must immediately notify Tixel to enable Tixel to implement any necessary changes on the Event Organiser's behalf.
  3. To the extent permitted by law, Tixel accepts no liability for any non-compliance of any Event or Transaction with any applicable Laws.

3.2 Information

  1. The Event Organiser must:
    1. ensure that all Tickets made available via the Platform contain accurate information and shall be correctly allocated to the Event to which the Ticket relates;
    2. immediately notify Tixel if any Event will be cancelled, rescheduled or materially altered; and
    3. otherwise promptly provide Tixel with information Tixel may reasonably require for the Organiser Portal and to facilitate Transactions, including access to appropriate members of the Event Organiser’s staff.
  2. Tixel is entitled to rely upon the accuracy and completeness of all information provided to it by or on behalf of the Event Organiser. The Event Organiser will immediately inform Tixel if it discovers that any information that has been provided is inaccurate or incomplete, or should not be relied on.

3.3 Restrictions on use

The Event Organiser must not, in accessing or using the Services:

  1. infringe the rights of any person, including any third party Intellectual Property Rights;
  2. use the Services in any manner for any illegal or criminal purpose or activity
  3. use the Services for any purpose other than the Permitted Purpose;
  4. other than as permitted by Tixel, modify, translate, make derivative works from, disassemble, reverse compile or reverse engineer any part of the Services in order to build a product that is similar or substantially the same as the Services or provides substantially the same functionality or services as the Services; or
  5. remove, deface or destroy any copyright or other rights notices used on, or in connection with the Services;
  6. act in a manner which:
    1. is contrary to any Law or any third party’s rights, or which may encourage a person to act in a way which is contrary to any Law or any third party’s rights;
    2. may result in damage to the Services or any property or equipment of Tixel, its directors, employees, contractors or agents;
    3. may restrict, disrupt or inhibit any other user from using or enjoying the Services;
    4. endangers the health or safety of any person; or
    5. may cause an interference to any business conducted by Tixel;
    6. upload, post, email or otherwise transmit any of the following to, or through, the Services (including to the Event Portal):
    7. confidential material which is not required for use of the Services;
    8. misleading or deceptive material;
    9. material which the Event Organiser does not have a right to upload, post, email or otherwise transmit, such as material which is protected by copyright, patent, trade mark, service mark, or any other proprietary right, without first obtaining express permission from the owner of the material or relevant right holder and providing with the material appropriate acknowledgement of existence of the right and the permission of the right holder; or
    10. material which contains a virus, or other harmful or potentially harmful code;
    11. alter, damage or delete any material on the Platform or Event Portal;
    12. hold themselves out as having any authority to act on behalf of Tixel; or
    13. collect or store personal information about other users in a manner which is inconsistent with these Terms.

3.4 Acknowledgement

Once the Event has been set up and enabled by Tixel on the Platform, the Event Organiser acknowledges that Tixel will not disable or otherwise remove access to Tickets to the Event via the Platform.

4. Ticket prices, fees, release and refunds

4.1 Ticket prices

  1. The Event Organiser must ensure that the Price Cap notified to Tixel and reflected in the Event Settings complies with all applicable Laws and that the Event Settings reflect the Price Cap.
  2. The Event Organiser acknowledges and agrees that Tixel will not, under any circumstances, set or impose any minimum prices for which the Tickets may be sold on the Platform.

4.2 Ticket fees

For each Transaction, Tixel is entitled to charge Buyer Fees to the Buyer and Seller Fees to the Seller.

4.3 Release of Ticket funds

  1. Subject to clause 4.3(b) and any conditions required by the third party payment gateway provider, Tixel will release Ticket funds to Sellers (less applicable fees) immediately upon completion of the Transaction.
  2. Clause 4.3(a) does not apply where:
    1. the parties have agreed in writing to an alternative arrangement for the release of ticket funds to Sellers; or
    2. the Seller has elected, via the Platform, not to receive Ticket funds prior to completion of the Event.

4.4 Ticket refunds

  1. If an Event is rescheduled and/or cancelled and a refund is required to be paid:
    1. in respect of any Transactions for which Ticket funds have been released to the Seller prior to completion of the Event, the Event Organiser must pay to Tixel the full Face Value in respect of such Tickets in immediately available funds to enable Tixel to utilise those funds to refund the Buyers; and
    2. in respect of all Transactions for which Ticket funds have not yet been released to the Seller at the time of Event rescheduling or cancellation, Tixel reserves the right to cancel the transaction between the Buyer and the Seller and any Ticket proceeds will be refunded by Tixel to the Buyer and any refund to the Seller will be a matter as between the Event Organiser and the Seller.
  2. Tixel will provide to the Event Organiser reasonable assistance in relation to the Event cancellation or rescheduling to the extent that such assistance is required in relation to the Tickets.

5. Intellectual Property

  1. The parties acknowledge and agree that at all times:
    1. all Intellectual Property Rights and other information that Tixel provides or makes available to the Event Organiser under or in connection with these Terms or the provision of the Services remains at all times the property of Tixel and its licensors; and
    2. Tixel continues to own all of its Intellectual Property Rights existing at the time the Event Organiser is first granted access to the Services and will own all Intellectual Property Rights coming into existence as a result of or in connection with the Services.
  2. Tixel acknowledges and agrees that all Intellectual Property Rights and other information of the Event Organiser that the Event Organiser provides or makes available to Tixel remains the property of the Event Organiser and its licensors. Tixel must not use or disclose such Intellectual Property Rights or information for any purpose other than for the purpose of providing the Services and performing its obligations under these Terms.
  3. All rights, titles, and interests not specifically and expressly granted by either party under these Terms are hereby reserved. Nothing in this agreement will be understood to preclude or limit Tixel from providing software, materials, or services for itself or other clients, irrespective of the possible similarity of such software, materials or services to the Services.

6. Confidentiality

Each party acknowledges that any other information shared between the parties in relation to the Services are confidential and must not be disclosed to any other person other than where disclosure:

  1. is necessary to carry out each party’s respective obligations under these Terms (but for no other purpose);
  2. has been expressly consented to by the other party in writing or is specifically contemplated and permitted by these Terms;
  3. is made to a Representative of a party or to another person who must know it for the purposes of these Terms on the basis that the Representative or other person to whom the information is disclosed is bound by obligations of confidentiality no less onerous than those imposed on the parties to these Terms and keeps the information confidential; or
  4. is required by Law or a regulatory body (including a relevant stock exchange), court or governmental or administrative authority.

7. Privacy

Each party must comply with all applicable Privacy Laws with respect to any act done or practice engaged in by that party for the purposes of or in connection with these Terms.

8. Warranties

8.1 General warranties

Each party represents and warrants to the other on a continuing basis that:

  1. it has full corporate power to enter into and perform its obligations under these Terms and can do so without the consent of any other person;
  2. it has taken all necessary action to authorise the execution, delivery and performance of these Terms in accordance with its terms;
  3. as at the date of these Terms, the execution, delivery and performance of these Terms by it does not contravene any contractual, legal or other obligations of any kind that apply to it;
  4. on execution of these Terms its obligations under these Terms will be valid, binding and enforceable;
  5. unless otherwise set out in these Terms, it does not enter into these Terms as trustee of a trust or as the agent, trustee, nominee, attorney or representative of any other person; and
  6. it is able to pay its debts as and when they become due and payable.

8.2 Event Organiser warranties

The Event Organiser represents and warrants to Tixel that:

  1. it holds all Authorisations in relation to each Event; and
  2. all Tickets, including any new tickets created and made available to a Buyer to replace the Seller’s original ticket (including any associated barcodes) contain complete and accurate information and will be free from all defects and will enable the Buyer to access and attend the applicable Event.

8.3 Tixel warranties

  1. Tixel represents and warrants to the Event Organiser that:
    1. it is entitled to, and has the right and power to, provide the Services; and
    2. the Services do not and will not infringe the Intellectual Property Rights of any person or breach any trade secret or any obligations of confidence owed to any third party.
  2. The warranties set out in this clause 8 are the sole warranties provided by Tixel and except for such warranties, the Services are provided on an “as is” and “as available” basis without any warranties of any kind to the fullest extent permitted by law.

9. Liability

  1. Notwithstanding any other provision of these Terms, Tixel makes no warranties or representations in relation to the Services, including in relation to their fitness for purpose and, to the extent permitted by Law:
    1. Tixel's total aggregate and cumulative liability to Event Organiser, Sellers and Buyers (including liability for negligence) in relation to a Transaction is limited to the Buyer Fees and the Seller Fees in respect of that Transaction; and
    2. Tixel's total aggregate liability to the Event Organiser in respect of the Services (to the extent unrelated to a Transaction) is otherwise limited to AUD$10,000.
  2. Tixel excludes liability (including liability for negligence) for any loss of profits, loss of business, loss of data, loss of revenue, amounts payable to third parties, loss of customers, loss of reputation, loss of goodwill or any indirect or consequential loss, damage, cost or expense however arising;
  3. Tixel excludes all implied or statutory condition, guarantee or warranties, except any implied condition or warranty the exclusion of which would contravene any Law or cause any part of this clause to be void ('Non-excludable Condition'); and
  4. Tixel’s liability for breach of any Non-excludable Condition is limited, at Tixel’s option, to refunding the price of the services in respect of which the breach occurred or to providing those services again.
  5. The Event Organiser indemnifies Tixel from and against any loss suffered or incurred by Tixel arising out of or in relation to:
    1. a breach by the Event Organiser of these Terms;
    2. any fault or defect in a Ticket;
    3. an Event, including the cancellation or rescheduling of an Event.

10. Insurance

In respect of each Event the subject of these Terms, the Event Organiser must effect and maintain insurance with a reputable insurer against risks normally associated with the industry in which Event Organiser operates, including cancellation insurance and public liability insurance, for such amount that is necessary given the size and nature of the Event and which will ensure that, if the Event is cancelled and a refund required to be issued, there will be sufficient funds available to be refunded to all ticketholders.

11. Force majeure

No party is liable for any failure to perform or delay in performing its obligations under these Terms, other than an obligation to pay money, if that failure or delay is due to anything beyond that party's reasonable control.

12. Termination or suspension

12.1 Suspension

Tixel may at any time suspend the Event Organiser’s access to or use of the Services if it considers that:

  1. the Event Organiser is accessing or using the Services (i) to commit an illegal act; or (ii) in a manner that breaches these Terms; or
  2. there is a material threat to the functionality, security, integrity or availability of the Services (or any applications, content or data contained within the Services), including as a result of the Event Organiser’s access to or use of the Services.

12.2 Immediate termination

Either party may immediately terminate the Event Organiser’s access to the Services by giving written notice to the other party if:

  1. the other party is in breach of a material provision of these Terms and such breach is not able to be remedied;
  2. the other party is in breach of a provision of these Terms which is capable of being remedied but fails to remedy such breach within 10 business days after receiving a written notice requiring it to do so; or
  3. the other party is the subject of an Insolvency Event.

13. Continuing obligations

Upon termination of the Event Organiser’s access to the Services:

  1. the Event Organiser’s access to or use of the Services (including the Organiser Portal) will immediately cease;
  2. each party must not disparage or publicly discuss or say or cause anything to be said or done that in any way denigrates, damages or undermines the other party or any of its Representatives or be directly or indirectly involved in any conduct or activity which may harm or diminish the name or reputation of the other party or any of its Representatives.
  3. each party retains its rights under these Terms and at Law in respect of any breach of these Terms by the other party and all other accrued rights.
  4. the following clauses continue to apply: clause 5 (IP); clause 6 (Confidentiality); clause 9 (Liability); this clause 13(d) (Continuing obligations; clause 14 (General); any other clauses that make provision for the continued operation of these Terms; and those provisions of clause 1 (Definitions and interpretation) which go to the interpretation of the above clauses.

14. General

14.1 Approvals and consent

Except as otherwise set out in these Terms, a party may give or withhold an approval or consent in that party's absolute discretion and subject to any conditions determined by that party. A party is not obliged to give reasons for giving or withholding a consent or approval or for giving a consent or approval subject to conditions.

14.2 Assignment

A party must not assign any rights or obligations under these Terms without the prior written consent of the other party (such consent not to be unreasonably withheld).

14.3 Exercise of rights

A party may exercise a right, power or remedy separately or concurrently with another right, power or remedy available to it at law or under these Terms. A single or partial exercise of a right, power or remedy by a party does not prevent a further exercise of that or of any other right, power or remedy and a failure by a party to exercise, or delay by a party in exercising, a right, power or remedy does not prevent its exercise.

14.4 Further acts

Each party must at its own expense promptly execute all documents and do, or use reasonable endeavours to cause a third party to do, all things that another party from time to time may reasonably request in order to give effect to, perfect or complete these Terms and all transactions incidental to it.

14.5 Governing law and jurisdiction

Unless otherwise agreed between the parties, these Terms are governed by the law of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of its courts and courts of appeal from them. The parties will not object to the exercise of jurisdiction by those courts on any basis.

14.6 No authority to act

Except as otherwise set out in these Terms, no party has any power or authority to act for or to assume any obligation or responsibility on behalf of another party, to bind another party to any agreement, negotiate or enter into any binding relationship for or on behalf of another party or pledge the credit of another party.

14.7 Relationship

Except as otherwise set out in these Terms, these Terms do not create a relationship of employment, trust, agency or partnership between the parties.

14.8 Rights cumulative

Except as otherwise set out in these Terms, the rights of a party under these Terms are cumulative with and in addition to any other rights available to that party under these Terms, any other document or by law and nothing in these Terms excludes any such rights.

14.9 Severability

Each provision of these Terms is individually severable. If any provision is, or becomes illegal, unenforceable or invalid in any jurisdiction it is to be treated as being severed from these Terms in the relevant jurisdiction, but the rest of these Terms will not be affected and the legality, validity and enforceability of the provision in any other jurisdiction will not be affected.

14.10 Successors and assigns

These Terms continue for the benefit of, and bind, a successor in title of a party, including a person to whom a party's rights and obligations are assigned in accordance with the requirements of these Terms. The Event Organiser must not unreasonably withhold its consent to the assignment of these Terms or any rights or obligations of Tixel under these Terms.

14.11 Variation

These General Terms and Conditions may be varied by Tixel at any time on written notice to the Event Organiser. Any such variations will take effect from the date of the notification by Tixel.

14.12 Waiver

A waiver of any right, power or remedy under these Terms must be in writing signed by the party granting it. A waiver only affects the particular obligation or breach for which it is given. It is not an implied waiver of any other obligation or breach or an implied waiver of that obligation or breach on any other occasion.