1. INTRODUCTION

1.1.   123Tix is an online ticketing platform located at www.123tix.com.au (“123Tix Service”) owned by Wecre8 Designs Pty Limited T/A 123Tix (A.B.N. 31 165 913 404) (“123Tix”, “we”, “ours” and “us”).

1.2.   You are an event promoter, organiser or venue (“Event Organiser”, “you”).

1.3.   You wish to use the 123Tix Service as your ticketing agent to sell tickets to the public (“Ticket Buyers”) for your event (“Event”).

1.4.   This Agreement sets out the terms and conditions to which you must agree in order for us to provide you with use of the 123Tix Service.

 2. APPOINTING 123TIX AS TICKET AGENT

 2.1.   You have requested that 123Tix becomes the ticketing agent for your Event.

 2.2.   By creating an online account as an event organiser with 123Tix, you hereby appoint 123Tix as your ticket agent and you agree to be bound by the terms and conditions contained in this Agreement.

 3. TERM

 3.1.   This Agreement commences on the date that 123Tix accepts your application to use 123Tix for your Event and terminates on the date that final monies are settled in accordance with Clauses 11 and 12 below, unless terminated earlier in accordance with the terms of this Agreement.

4. 123TIX SERVICES

4.1.   Subject to the further terms of this Agreement, we agree that you may use the 123Tix Service to sell tickets to your Event.

4.2.   In providing the 123Tix Service, we hereby grant to you a non-exclusive and non-transferable licence to access the 123Tix Service via an account login and password; include links to the 123Tix Service from your website and related social media; and use our name and logo to promote the sale of tickets to your Event.

4.3.   Once you set up an account with 123Tix you will be able to upload content related to your Event, check ticket bookings and view sales reports relating to your Event.

4.4.   We agree to provide you with a reasonable level of technical assistance with respect to your use of the 123Tix Service as reasonably required.   

5. EVENT ORGANISER WARRANTIES & INDEMNITIES

 5.1.   You warrant the following to 123Tix:

a)       That you have full power and authority and right to offer, sell, and honour tickets to your Event;

b)       That any and all materials you upload to the 123Tix Service in connection with your Event are owned or controlled by you and do not infringe any third party rights (including but not limited to copyright, Trade Marks, confidential information or privacy);

c)       That any and all materials you upload to the 123Tix Service in connection with your Event are accurate, honest and consistent with other information provided by you to the public; and

d)       That your use of the 123Tix Service does not constitute a violation of any law, including but not limited to consumer protection legislation; and

e)       That 123Tix has no responsibility or liability with respect to your Event other than in connection with ticketing as set out in this Agreement; and

f)        That you will be solely responsible for the protection and use of your login and account information, and will promptly advise us in writing if you believe your account has been compromised in any way.

 5.2.   123Tix will not be liable to you in any way for any materials displayed on your website or any materials that you upload onto 123Tix in connection with the Event.

5.3.   You hereby indemnify us or our officers, employees, agents or contractors and hold us harmless against any expense, loss or liability (including legal fees) in respect of any claims, or threatened claims, relating to the tickets, the Event, and any materials uploaded by you or your authorised representatives onto your 123Tix event page and any breach of your warranties or obligations under this Agreement.

6. TICKET BUYER TERMS & CONDITIONS

6.1.   We provide the 123Tix Service to Ticket Buyers in accordance with the 123Tix Ticket Buyer Terms & Conditions.

6.2.   We reserve the right to vary the 123Tix Ticket Buyer Terms & Conditions at any time.

6.3.   You may elect to add your own additional terms and conditions to the 123Tix Ticket Buyer Terms & Conditions for your Event. Any such additional terms and conditions must be displayed on your Event page on the 123Tix Service.

 7. TICKET BUYER PRIVACY

7.1.   123Tix collects information about Ticket Buyers in accordance with the 123Tix Privacy Policy.

7.2.   You agree that you will comply with the 123Tix Privacy Policy and the requirements of the Privacy Act 1988 (Cth) including but not limited to the following:

a)       You shall not use any personal information of the Ticket Buyers in any unlawful manner;

b)       You shall take all reasonable steps to protect the Ticket Buyers’ personal information from loss or disclosure; and

c)       You shall indemnify 123Tix in respect of any claim, loss, liability or expense suffered by 123Tix resulting from a breach of your obligations hereunder.

8. INTELLECTUAL PROPERTY RIGHTS

8.1.   You acknowledge and agree that 123Tix owns and controls the 123Tix Service, including but not limited to all logos, text, images, source code etc, other than those materials uploaded by you or another user to the 123Tix Service.

8.2.   You shall not do any of the following without the prior written consent of 123Tix:

a)       Edit, amend, modify, alter, adapt, disassemble, translate, reverse engineer, de-compile any part of 123Tix;

b)       Copy or reproduce 123Tix or 123Tix materials in any way other than in connection with the promotion and sale of tickets for the Event;

c)       Attempt to sell, transfer or assign any rights in the 123Tix Service;

d)       Use the 123Tix name and logos in any way other than the direct promotion of 123Tix Platform.

8.3.   Each party grants to the other a non-exclusive, royalty free right during the term of this Agreement to use its Trade Marks and names in connection with the sale and promotion of tickets via 123Tix only.

9. TICKETING CONFIRMATION

9.1.   You agree to accept and honour all tickets purchased to your Event that have been purchased via the 123Tix Service.

9.2.   Once the Ticket Buyer has purchased a ticket for your Event they will receive a web page confirmation, an email confirmation, along with a ticket upon successful payment.

9.3.   You will be able to access a list of all confirmed Ticket Buyers via your 123Tix account.

10. TICKET PRICES AND 123TIX FEES

10.1. You are responsible for setting the ticket prices on all tickets sold to your Event via the 123Tix Service.

10.2. We are entitled to receive and/or be paid the booking fees further described here, which will be charged in addition to the ticket price. (“Booking Fees”).

10.3. You will ensure that we are paid the Booking Fees in accordance with Clause 10 below.

11. PAYMENT & SETTLEMENT

 Option 1: Where Ticket sales are collected through the 123Tix merchant account

11.1. We will collect all income earned from ticket sales that have been received by us for your Event received via the 123Tix Service (“Total Ticket Sales”) and hold such monies on your behalf until completion of your Event.

11.2. Within 7 days from confirmed completion of the Event we will settle to you the Total Ticket Sales collected by 123Tix, less the 123Tix Booking Fees, by depositing such monies into your nominated bank account.

 Option 2: Where Ticket Proceeds are collected through your merchant account

11.3. You may request in writing to us that the Total Ticket Sales be collected by you using your own merchant facility such as Stripe, Paypal or another mutually agreed method.

11.4. We may, in our sole discretion determine whether we allow for you to collect ticket sales directly. In making our decision, we may request a written guarantee or other documentation from you which satisfies us that you would be capable of providing refunds to Ticket Buyers if the Event was cancelled, or if for any other reason you are required to provide Ticket Buyers with refunds.

11.5. If we do consent to you collecting funds directly via your own merchant facility, the following will apply:

a)       You agree to use Stripe, PayPal or another type of merchant facility agreed by us in writing;

b)       If technically possible, we will be entitled to collect our Booking Fees directly as Ticket Sales are processed, or if not technically possible, we will invoice you upon completion of the Event for our Booking Fees which you shall pay within 5 days from completion of the Event.

11.6. Under this Option 2, you are fully responsible for, and accept all liability for any losses arising from a bank or credit card company processing a repayment of any transaction (known as ‘chargebacks’) incurred in connection with tickets being processed through your merchant account.

 12. REFUNDS FOR CANCELLED EVENTS OR EVENT CHANGES

 Option 1: Where Ticket sales are collected through the 123Tix merchant account

12.1. If the Event is cancelled, or if Ticket Buyers are entitled to a refund for any other reason, and income earned from ticket sales for your Event have been collected through our merchant account, we agree to process ticket refunds on your behalf.

 12.2. In the event that we are required to process refunds on your behalf, you agree to pay to us a reasonable refund fee which shall cover the original Booking Fee and the administration involved in processing the refunds (“Refund Fee”).

12.3. You agree to pay to us the Refund Fee within 5 days from our confirmation of completion of the necessary refunds.

 Option 2: Where Ticket Proceeds are collected through your merchant account

12.4. If the Event is cancelled, or the Ticket Buyers are entitled to a refund for any other reason, and income earned from ticket sales for your Event has been collected through your merchant account, you will be solely responsible for processing all refunds, including the Booking Fees. For the avoidance of doubt we shall be entitled to retain (or be paid by you, as the case may be) all Booking Fees for tickets purchased regardless of any refunds processed by you.  

 12.5. You will warrant to us that you will ensure that you retain sufficient funds in your merchant account at all times prior to the Event to allow the refunds to be processed in accordance in a timely manner.

 12.6. In operating your own merchant account, you indemnify us and hold us forever harmless from and against any claims, loss or damage caused by, or connected with a breach of your obligations under this Agreement. For the sake of clarity, this includes any claims made against us by Ticket Buyers, venues or promoters in relation to your Event, ticket sales or the 123Tix Service.

13. OUR RIGHT TO CANCEL TICKETS

13.1. In the event that we believe that a ticket sold using the 123Tix Service was purchased fraudulently, we reserve the right to cancel such ticket in our sole discretion. You agree to co-operate with us in the event that we deem such cancellation necessary.

 14. GST

14.1. Unless otherwise expressly stated in this Agreement, all sums payable or consideration to be provided under, or in accordance with this Agreement are inclusive of GST.

14.2. If GST is payable, or notionally payable, on a supply made under or in connection with this Agreement, the party providing the consideration for that supply must pay as additional consideration an amount equal to the amount of GST payable, or notionally payable, on that supply (the GST Amount).  Subject to the prior receipt of a tax invoice, the GST Amount is payable at the same time that the other consideration for the supply is provided. 

14.3. Unless the context requires otherwise, words used in this Clause that have a specific meaning in the GST law (as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth)) shall have the same meaning in this Clause.

14.4. 123Tix acts merely as an agent in relation to ticket sales and is not the ‘Supplier’ for the purposes of GST. You are the Supplier and solely responsible for all ticket sales (and other sales via the 123Tix Service) for GST purposes.

15. NO WARRANTIES & DISCLAIMER

15.1. The 123Tix Service is provided on an "as is" basis and without representations or warranties of any kind to you, whether express or implied, including without limitation as to the quality and/or fitness of the 123Tix Service for a particular use, accessibility, or warranties that access or use of the 123Tix Service will be uninterrupted or error-free, or that the 123Tix Service will be secure or free of viruses or other harmful material or elements, or that any of the content on the 123Tix Service will be correct, accurate, timely or complete.

 15.2. The 123Tix Service may include technical inaccuracies or typographical or other types of errors. 123Tix has the right to make changes, modifications and updates to any materials contained on the 123Tix Service in its sole discretion and without prior notice.

 15.3. Except as expressly provided to the contrary in this Agreement, and to the fullest extent permitted by law, all terms, conditions and warranties whether implied, statutory or otherwise relating to this Agreement are excluded.

 15.4. Except in respect of any Ticket Sales collected by us on your behalf, we will not be liable for any loss, including but not limited to loss of profits, or any loss of goodwill, custom or any incidental, special or consequential loss or damage suffered by you arising out of or connected to the provision of 123Tix Service.

15.5. Notwithstanding anything else contained herein, if you make a claim against us in connection with this Agreement, whether in contract, negligence or statute, our liability in respect of that claim is limited to the aggregate of the monies paid to us by you in respect of the Event only.

 16. TERMINATION

 16.1. Either party may terminate this Agreement by written notice to the other if:

a)       the other party breaches any material clause this Agreement and such breach is incapable of remedy, or the other party fails to remedy the breach within 14 days after receiving written notice to do so; or

b)       the other party ceases to carry on business, enters into liquidation, administration or otherwise takes any steps to appoint a receiver and manager, a trustee in bankruptcy, a liquidator, or to enter into any arrangement with its creditors.

16.2. Termination by either party shall not affect the validity of those clauses which are intended to survive termination including but not limited to Clause 8: Intellectual Property, Clause 14: GST, Clause 20.3: Confidential Information and Clause 15: No Warranties & Disclaimer.

16.3. Upon Termination you agree that you will cease using the 123Tix Service immediately and you will promptly account to 123Tix for all amounts owing to 123Tix pursuant to this Agreement.

16.4. Upon Termination we agree we will promptly account to you for all amounts owing to you (if any) pursuant to this Agreement. 

16.5. For the avoidance of doubt termination shall not affect the accrued rights and remedies of each party as at the date of termination.

17. DISPUTES

17.1. If there is a dispute between the parties relating to or arising out of this Agreement then within 7 business days of a party notifying the other party of a dispute, senior representatives from each party must meet (by phone, internet or in person) and use all reasonable endeavours, acting in good faith to resolve the dispute by joint discussions.

 17.2. If the dispute between the parties relating to or arising out of this Agreement is not resolved within 21 business days of notification of the dispute under Clause 17.1, the parties may agree to refer the dispute to arbitration. The arbitrator will be agreed between the parties and the costs of the arbitration will be shared equally by both parties.

 17.3. A party may not commence Court proceedings in relation to a dispute relating to or arising out of this Agreement until it has exhausted the procedures in this Clause 17, unless the party seeks appropriate injunctive or other urgent interlocutory relief to preserve property or rights or to avoid losses that are not compensable in damages.

17.4. In the event of a ticket related dispute between you and a Ticket Buyer who purchased a ticket using the 123Tix Service, we will hold the disputed ticket monies (including the application Booking Fees) along with the Dispute fee charged by the merchant facility provider until such time that we are advised in writing by you and the Ticket Buyer that the dispute has been resolved. If the resolution of such a dispute requires a refund to the relevant Ticket Buyer, we shall be entitled to retain the relevant Booking Fees. 

18. FORCE MAJUERE

18.1. Neither party will be in default of this Agreement for any failure to comply with the terms of this Agreement, to the extent that such failure is caused by circumstances beyond the party’s reasonable control, provided that both parties must use reasonable endeavours to mitigate the consequences of such event.

19. NOTICES

19.1. All notices, statements or other documents which any party shall be required or shall desire to give to any other party shall be in writing and shall be given by either (a) personal delivery, or (b) registered post.

19.2. If so delivered or sent each such notice, statement or other document shall be deemed to have been given when personally delivered or on the date indicated on the return receipt as the case may be. Until further notice in writing, the addresses of the parties shall be as set out at the top of this Agreement.

20. GENERAL

20.1. This Agreement shall be construed in accordance with and governed by the laws of New South Wales, Australia, and the parties hereby submit to the exclusive jurisdiction of the New South Wales Courts as regards any claim or matter arising under this Agreement.

20.2. Nothing herein contained shall create any association, partnership, joint venture or any other legal relationship between the parties, it being understood that the parties are, with respect to each other, independent contractors, and no party shall have any authority to bind the other, or the others' representatives in any way save as set out in this Agreement.

20.3. Each party agrees to keep the terms of this Agreement and the other party’s confidential information confidential at all times. Each party agrees to use the confidential information only for the purposes of this Agreement, unless otherwise agreed in writing by the disclosing party. Each party will ensure that its employees, agents, sub-distributors, contractors and other persons within its control comply with this Clause.

20.4.  Each of the parties shall, at the request of the other, from time to time after the date hereof, execute and deliver such other instruments and documents, as may be reasonably necessary to further evidence, perfect, maintain, effectuate or defend any and all respective rights and obligations of the parties hereunder.

 20.5. If any provision of this Agreement shall be prohibited by or adjudged by a court to be unlawful void or unenforceable such provision shall to the extent required be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement and shall not in any way affect any other circumstances or the validity or enforcement of this Agreement.

 20.6. This Agreement expresses the entire understanding of the parties hereto and replaces any and all former agreements, understandings or representations relating in any way to the subject matter hereof.

 20.7. No amendment, modification, supplement, change or waiver of the provisions of this Agreement shall be valid unless in writing signed by or on behalf of the parties hereto.

 20.8. 123Tix may assign this Agreement at any time, however you may only assign or dispose of the benefits of this Agreement with the prior written consent of 123Tix.

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