• Merchant Agreement

    THE TICKETPORT MERCHANT AGREEMENT 

    These are the terms and conditions of the The Ticketport’s End-User License Agreement (this “EULA") which is entered into by The Ticketport Inc., its agent(s), partner(s), or other authorized representative(s) (collectively or individually, the “Developer” or “The Ticketport”) and the merchant(s) (referred to herein as the “Merchant” or “you”) whose information appears on the The Ticketport Fundraising Application or the The Ticketport Pay/Fundraising Application, as applicable (the “Application”). The EULA, together with: (i) the Application; (ii) a summary of the complaints handling process, (iii) the Payment Acquirer terms of service or terms and conditions, as applicable; (iv) The Ticketport Account Terms of Service; (v) any other Payment Acquirer forms, agreements, guarantees, or other similar documents, as applicable; (vi) The Ticketport’s Privacy Policy located at TheTicketport.com; and (vii) all appendices, schedules, exhibits and addenda to the Application, whether such schedules, exhibits and/or addenda became effective on the same date that the aforementioned applications were executed by the Merchant or at a later date), collectively form the agreement (the “Agreement”) between The Ticketport and the Merchant.

    This Agreement is solely between you and The Ticketport and governs your use of the The Ticketport Fundraising Application and the corresponding services it provides, together with the associated documentation, proprietary and intellectual property (collectively, the “App”).

    Please review this Agreement completely. This Agreement forms a legal agreement between you and The Ticketport. The Developer provides the App solely on the terms and conditions set forth herein and on the condition that you accept and comply with them. By using the App you: (a) accept this Agreement and agree that you are legally bound by its terms; and (b) represent and warrant that: (I) you are of legal age to enter into a binding agreement; and (II) if you are a corporation, governmental organization or other legal entity, you have the right, power and authority to enter into this Agreement on behalf of the Merchant and bind the Merchant to its terms. If you do not agree to the terms of this Agreement, you must not use the App.

    If you have any questions or concerns about this Agreement or The Ticketport’s Privacy Policy, please e-mail The Ticketport’s Compliance Officer at [email protected].

    1. DEFINITIONS

    “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with, a party to this Agreement. For purposes of this definition of “Affiliate”, “control” means the power to direct the management and policies of an entity, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise.

    “Authorized User(s)” means solely those individuals authorized to use the App pursuant to the license granted under this Agreement.

    “Documentation” means any user manuals, technical manuals and any other materials provided by Developer, in printed, electronic or other form of media, that describe the installation, operation, use and/or technical specifications of the App.

    “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trade-mark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

    “Person” means an individual, corporation, partnership, joint venture, governmental authority, unincorporated organization, trust, association or other entity.

    “Term” means the Term as set out in the The Ticketport Fundraising Application and/or the The Ticketport Pay/Fundraising Application, as applicable.

    "Third Party" means any Person other than the Developer or the Merchant.

    For the purposes of this Agreement, the following terms have the following meanings:

    1. THE APP

    2.1

    The App provides Merchant’s donors the ability to make a wireless donation to a Merchant. Through the App, donors will be able to select a campaign, donation amount and method of payment and upon completing a donation, will be prompted to rate their donation experience. Donors will be prompted to enter their email after donating and will be emailed a tax receipt. This email will also include a link to The Ticketport’s Fundraising portal which will allow the donor to download a charitable receipt, if a charitable receipt is being provided by the Merchant.

    2.2

    Developer grants you a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free, revocable license during the Term to use the App solely for your internal business purposes. This license does not grant you any rights to Developer’s (or any other Third Party’s) Intellectual Property Rights unless provided with the App. Developer reserves to itself (or applicable third parties) all right, title, interest, and license (express or implied) to the App that are not specifically granted to you under this Agreement. You will preserve and display any proprietary notices, markings, or branding associated with use of the App, as requested by The Ticketport.

    2.3

    The App may update automatically from time-to-time, and you may be required to accept these updates to continue using the App. The Developer may perform maintenance on the App, which may result in service interruptions or delays from time-to-time. Developer may not support older versions of the App. You are solely responsible for obtaining all equipment and services (e.g., Internet connectivity and/or data) necessary to access and use the App.

    1. USE RESTRICTIONS

    3.1

    You shall not, and shall require your Authorized Users not to, directly or indirectly:

    (a) use (including make any copies of) the App or Documentation beyond the scope of the License granted under Section 2.2;

    (b) provide any other Person, including any subcontractor, independent contractor, Affiliate or Service Provider of Merchant with access to or use of the App or the Documentation, except as permitted by this Agreement;

    (c) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the App or Documentation or any part thereof;

    (d) combine the App or any part thereof, or incorporate the App or any part thereof, in any other programs;

    (e) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the App or any part thereof;

    (f) remove, delete, alter or obscure any Intellectual Property Rights notices provided on or with the App or Documentation, including any copy thereof;

    (g) copy the App or Documentation, in whole or in part;

    (h) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the App, or any features or functionality of the App, to any Third Party for any reason, whether or not over a network or on    a hosted basis, including in connection with the Internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, SaaS, cloud or other technology or service; or

    (i) use the App or the Documentation for purposes of competitive analysis of the App, the development of a competing software product or service or any other purpose that is to Merchant’s commercial advantage.

    1. RESPONSIBILITY FOR USE OF SOFTWARE; SUSPENSION

    4.1

    You are responsible and liable for all uses of the App through access thereto provided by The Ticketport, directly or indirectly. Specifically, and without limiting the generality of the foregoing, you are responsible and liable for all actions and failures to take required actions with respect to the App by your Authorized Users or by any other Person to whom you or an Authorized User may provide access to or use of the App, whether or not such access or use is permitted by or in violation of this Agreement.

    4.2

    In addition to its termination rights as set out in the Application, The Ticketport may promptly suspend or terminate your use of the App if: (i) you violate this Agreement’s terms; (ii) The Ticketport believes your use of the App may damage its reputation or Intellectual Property Rights; (iii) Developer suspends or terminates its agreement(s) with any Third Party involved in providing the App and/or any related services; and/or (iv) you are using the App for any fraudulent, illegal or unauthorized purpose, or engage in wilful misconduct with respect to your use of the App.

    1. FEES

    5.1

    You will pay the Developer the fees as set out in the Application on the terms and conditions as set out therein. The Ticketport may charge you a monthly fee for your use of the App, which will be automatically collected through the payment method as set out in the Application.

    1. FEEDBACK; MARKETING AND COMMUNICATIONS

    6.1

    The Ticketport does not guarantee the confidentiality of any communications made by you to The Ticketport or any other information transmitted by you to The Ticketport, including communications made by email or any information transmitted in your use of the App. We may retain a copy of any such communications for the purpose of, and to the extent necessary for us to comply with applicable legal, regulatory or internal backup requirements.

    6.2

    By submitting suggestions, documents, proposals, material, content, graphics, messages, communications, data and/or information to The Ticketport (“Feedback”) to The Ticketport, you acknowledge that: (i) your Feedback does not contain confidential or proprietary information; (ii) The Ticketport is not under any obligation of confidentiality, express or implied, with respect to the feedback; (iii) you grant The Ticketport and its Affiliates a perpetual, irrevocable, worldwide, royalty-free, fully paid-up, unlimited, sublicensable and non-exclusive license and right to receive, use, disclose, reproduce, adapt, merge or aggregate with other information or data, modify, translate, publish, make available, publicly display, sell, transfer, transmit and otherwise use such Feedback for any purpose, in any manner, in any media and format; (iv) you irrevocably waive your moral rights in and to such Feedback and assign to The Ticketport all rights in and to your Feedback in perpetuity; (v) you are not entitled to any compensation or reimbursement of any kind from The Ticketport under any circumstances; and (vi) you represent and warrant to The Ticketport, and can demonstrate to The Ticketport, upon request, that you have the rights to grant The Ticketport the rights set out in (iii) above.

    6.3

    You specifically and expressly consent to The Ticketport providing you with various communications, newsletters, correspondence, promotions and other documentation by email, text message or other forms of electronic communication and you hereby confirm that all such communication is accepted and in compliance with An Act to Promote the Efficiency and Adaptability of the Canadian Economy by Regulating Certain Activities that Discourage Reliance on Electronic Means of Carrying Out Commercial Activities and to Amend the Canadian Radio-television and Telecommunications Commission Act (“CASL”), the Competition Act, the Personal Information Protection and Electronic Documents Act(“PIPEDA”) and the Telecommunications Act as amended or replaced from time to time.

    1. INTELLECTUAL PROPERTY RIGHTS

    7.1

    You hereby acknowledge and agree that the App and any Documentation are provided under license, and not sold, to you. You do not acquire any ownership interest in or to the App or Documentation under this Agreement, or any rights thereto, other than to use the same in accordance with the license granted herein, and subject to all terms, conditions and restrictions under this Agreement. The Ticketport, its Affiliates, licensors and service providers reserve and retain their entire right, title and interest in and to the App and Documentation and all Intellectual Property Rights arising out of or relating to the App or Documentation, except as expressly grated to you under this Agreement. You shall safeguard the App and Documentation, including any copies thereof, from infringement, misappropriation, theft, misuse or unauthorized access. You shall promptly notify The Ticketport if you become aware of any infringement of The Ticketport’s Intellectual Property Rights in the App and fully cooperate with The Ticketport, at your sole expense, in any legal action taken by The Ticketport to enforce its Intellectual Property Rights.

    1. LIMITED WARRANTIES; LIMITATION OF LIABILITY; INDEMNITY

    8.1

    THE APP AND ANY DOCUMENTATION ARE PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT CONDITION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, DEVELOPER, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APP AND DOCUMENTATION, INCLUDING ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, THE DEVELOPER PROVIDES NO CONDITION, WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APP WILL MEET THE MERCHANT’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. MERCHANT IS SOLELY RESPONSIBLE FOR DETERMINING IF THE APP MEETS ITS NEEDS. THE DEVELOPER IS NOT RESPONSIBLE FOR ANY DISCLOSURES, MODIFICATIONS, DELETIONS OR OTHER ERRORS THAT MAY ARISE IN CONNECTION WITH MERCHANT’S USE OF THE APP DUE TO ITS INTERACTION WITH OTHER APPLICATIONS OR THEIR CONTENT.

    8.2

    You will indemnify Developer, its directors, officers, employees, agents, subsidiaries, and Affiliates against any Third Party claims for losses, damages, costs, or expenses (including reasonable attorneys' fees) (collectively, “Losses”) that result from your use or misuse of the App, or your breach of this Agreement. Developer may assume the defense of any Third-Party claims that you must indemnify it for (at your expense), and you will cooperate with the defense of these claims. You will not settle any Third-Party claims involving more than the payment of money without Developer’s express, prior written consent.

    8.3

    To the extent permitted by applicable law, The Ticketport will not be liable to you, your Affiliates or any respective licensors or service providers for: (a) any: use, interruption, delay or inability to use the App; (ii) lost profits, revenues, or business opportunities; (iii) delays, interruption or loss of services, business or goodwill; (iv) loss or corruption of data; (v) loss resulting from system or system service failure, malfunction or shutdown; (vi) failure to accurately transfer, read or transmit information; (vii) failure to update or provide correct information; (viii) system incompatibility or provision of incorrect compatibility information; (ix) breaches in system security; or (b) any exemplary, punitive, special, indirect, incidental, or consequential damages, in each case whether arising out of or in connection with this Agreement, breach of contract, tort (including negligence) or otherwise, regardless of whether such damages were foreseeable and whether or not The Ticketport was advised of the possibility of such damages.

    8.4

    In no event will the collective, aggregate liability of The Ticketport and its Affiliates, including any of its or their respective licensors and service providers, under or in connection with this Agreement or its subject matter, under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability and otherwise, exceed the total amount paid to The Ticketport under this Agreement during the one (1) month prior to a Loss.

    8.5

    The limitations set forth in this Section 8 shall apply even if your remedies under this Agreement fail of their essential purpose.

    1. GENERAL

    9.1

    This Agreement is binding upon the parties hereto and their respective heirs, executors, administrators, legal and/or personal representatives, successors, and assigns.

    9.2

    No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the parties. For avoidance of doubt, emails with a typed name or signature block do not constitute signed writings.

    9.3

    All notices to the Merchant will be provided to the Merchant at the mailing address or email address (at The Ticketport’s discretion) set forth in the Application and will be deemed to have been provided on the date which the notice was sent. All notices to The Ticketport required or permitted under the Agreement will be provided via registered mail to:

    The Ticketport Inc.
    Email: [email protected]

    and will be deemed to have been given on the date of The Ticketport’s receipt. Each party agrees to promptly notify the other party in writing if any of its contact information changes.

    9.4

    This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes any prior negotiations or agreements. The headings used in this agreement are for convenience only and are not to be construed as defining, limiting or describing the scope or intent of this Agreement. In the event of any conflict or inconsistency of any term or provision set forth in this EULA and the Application, such conflict or inconsistency shall be resolved by giving precedence first to the Application.

    9.5

    No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the parties. For avoidance of doubt, emails with a typed name or signature block do not constitute signed writings.

    9.6

    The failure of either party to exercise any rights under this Agreement shall not be deemed a waiver of such right or any other rights.

    9.7

    If any provision of this Agreement is held to be invalid, illegal, or unenforceable, that provision will be severed to the extent of its invalidity, illegality, or unenforceability, and all other provisions will continue in full force and effect to the extent permitted by law.

    9.8

    This Agreement is governed by the laws of the Province of Ontario and the laws of Canada applicable therein, excluding any body of law governing conflicts of law. The Ticketport reserves the right to institute legal or equitable proceedings, including proceedings seeking injunctive relief, in a court of competent jurisdiction, for claims regarding: (i) amounts owned by the Merchant to The Ticketport in connection with the Merchant’s use of the App or Documentation or any portion thereof; or (ii) the Merchant’s actual or threatened violation of this Agreement or any part thereof. The Merchant irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and irrevocably consent and attorn to the jurisdiction of the courts located in the Province of Ontario, for any claims arising from or related to this Agreement or any of the Services or the Equipment. The Merchant agrees that, in the event that there is a dispute under this Agreement and such dispute is to be resolved in a court of law, such dispute will not be resolved by jury trial, and the Merchant hereby: (i) waives all rights to a trial by jury in any matter related to or arising from this Agreement; and (ii) agrees that such dispute will be conducted only on an individual basis and not in a class, representative, consolidated or mass action. If any part of this Section 9.8 is found to be unenforceable, the remainder of this Section 9.8 will still be given full force and effect.

    9.9

    The Ticketport reserves the right at any time, and from time to time, to change this EULA and to notify you of such change by posting the updated version of this EULA on the its website located at TheTicketport.com. You acknowledge and agree that you are responsible for regularly reviewing this EULA, including by checking the date of the “Last Updated” at the beginning of this EULA. Continued use of the App after any such changes will constitute your consent to be bound by such changes, with continued provision of the use of the App, in whole or in part, constituting consideration from The Ticketport to the Merchant for so being bound. Your sole right with respect to any dissatisfaction with this EULA, this Agreement, any policy or practice of The Ticketport in operating, offering or providing the App, is to stop using the App.

    9.10

    It is the express wish of the parties that these Terms and Conditions and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.