Moshtix User Agreement
Last updated: 1 July 2013
By creating a moshtix client account and using the moshtix ticketing service, you agree to our FULL terms & conditions outlined on this page. This includes you agreeing to accept, honour, and fulfil ticketing commitments that have been made to purchasers based on the details you supply below. We reserve the right to provide full refunds if the event is cancelled or postponed. Please email all event change requests after sending this form to firstname.lastname@example.org. We do not accept phone call changes. You will receive a response within 2-3 business days.
This Agreement is between MOSHTIX PTY LTD ("MOSHTIX"), ABN 72 076 980 955, of PO Box 1272, Darlinghurst NSW 1300 ('MOSHTIX') and [your organisation name], of [your address] ("PROMOTER").
A. PROMOTER promotes, organises and holds entertainment events or functions and owns and runs entertainment venues.
B. MOSHTIX provides event publishing, event registration, ticket buyer registration, online and retail store ticketing systems, web site content management components (including but not limited to subscribe form, calendar, picture gallery, mp3 player), database customer relationship management software and services via the Internet and mobile device, moshscan swipe venue entry system. MOSHTIX also provides the MOSHCARD as a form of ticket. In this agreement these functions and services comprise the "MOSHTIX PLATFORM".
C. The PROMOTER wishes to utilise the MOSHTIX PLATFORM and make it available to its customers.
D. This Agreement sets out the terms on which MOSHTIX will provide the PROMOTER with the MOSHTIX PLATFORM.
1.1. In this Agreement:
'Agreement' means this document and includes any Schedules to this Agreement;
'Confidential Information' means all know-how, financial information and other commercially valuable information in whatever form including the MOSHTIX PLATFORM, intellectual property, all source, object and other codes relating to the MOSHTIX PLATFORM, identification and log-in information to access the MOSHTIX PLATFORM, unpatented inventions, trade secrets, formulae, graphs, drawings, designs, samples, devices, models and other materials of whatever description which either Party claims is confidential to itself and over which it has full control and includes all such information that may be in the possession of a Party's employees or management.
The following are exceptions to such information:
a) Information which is already in the public domain;
b) Information which hereafter becomes part of the public domain otherwise than as a result of an unauthorised disclosure by the recipient Party or its representatives;
c) Information which is or becomes available to the recipient Party from a third Party lawfully in possession thereof and who has the lawful power to disclose such information to the recipient Party on a non-confidential basis;
d) Information which is rightfully known by the recipient Party (as shown by its written record) prior to the date of disclosure to it hereunder;
e) Information for which a Party has given written consent to the recipient Party to disclose; or
f) Information which is required by law to be disclosed;
'Email and SMS Fees' means the fees payable to MOSHTIX for sending email and SMS messages using the communication and other messaging and ticket delivery functions available via the MOSHTIX PLATFORM
'Events' are any events, functions, activities, or resources to which the PROMOTER is authorised to sell or provide access;
'Event Content' means information, images, Mp3 music tracks and other content posted using the MOSHTIX PLATFORM by the PROMOTER or by MOSHTIX related to Events;
'Event Page' means a webpage the MOSHTIX PLATFORM creates that includes Event Content, terms and conditions for purchase, registration and Ticket booking functionality that can be accessed via a web browser or mobile device web browser.
'Internet Booking Fee' means the fee that MOSHTIX charges the Ticket Buyer for buying a Ticket to an Event through any channel on the Internet or mobile device using the MOSHTIX PLATFORM;
'Intellectual Property Rights' includes copyright, trade mark, design, patent, semiconductor or circuit layout rights, trade, business or company names, or other proprietary rights, or any rights to registration of such rights, whether created before on or after the date of this Agreement;
'MOSHCARD' means a plastic credit card style card that can be used as a form of Ticket to gain entry to Events;
'MOSHTIX Fees' means the fees payable to MOSHTIX as specified in Schedule A;
'Mobile Device' means a mobile phone or other mobile device, including personal digital organisers and laptop computers;
'MOSHTIX PLATFORM' means event publishing, registration, ticketing and database customer relationship management software and service, hardware including MOSHSCAN door entry systems, Retail Associate MOSHTIX software and hardware, Event Pages and includes all software, web pages, emails, SMS messages, proprietary knowledge, services, databases, content and data collected, posted, uploaded or otherwise from clients, customers and Retail Associate;
'MOSHSCAN' means all hardware including PCs, monitors, cabling, magnetic card readers, Scanners, Point of Sale displays, MOSHTIX software and associated equipment that performs the task of verifying patrons bookings to provide entry, checking booking data and other door entry functions;
'MOSHTIX Retail Network' means the network of Retail Associates of MOSHTIX;
'Party' means MOSHTIX or PROMOTER as the context dictates;
'Related Body Corporate' has the meaning given to that term in the Corporations Act (Cth);
'Retail Associate' means a MOSHTIX authorised retail store selling Tickets using the MOSHTIX PLATFORM;
'Retail Associate Login' means password and login access provided to a Retail Associate to access Retail Associate features of the MOSHTIX PLATFORM including the ability to preview Events for sale by an individual Retail Associate, issue Tickets and run sales reports;
'Retail Booking Fee' means the fee that the Retail Associate charges the Ticket Buyer for buying a Ticket to an Event through a Retail Associate physical store as set forth in the Schedule A or as notified by Retail Associates from time to time;
'Schedule' means a schedule to this Agreement as amended or attached from time to time;
'Services' means the provision of the MOSHTIX PLATFORM in accordance with this Agreement and the relevant Schedule;
'SMS' means short message service technology enabling transmission of messaging text to mobile devices;
'Ticket' means a ticket to an Event purchased through the MOSHTIX PLATFORM;
'Ticket Buyer' means any person who purchases a ticket using MOSHTIX PLATFORM from any website or mobile device and includes people browsing MOSHTIX PLATFORM web pages, SMS and emails, or by purchasing Tickets listed on the MOSHTIX PLATFORM and available for sale via a Retail Associate;
'Ticket Price' means the price for each Ticket;
'Ticket Price Proceeds' means the total of the proceeds of the Ticket Price times the quantity of tickets, for an Event;
1. STRUCTURE AND TERM
1.1. This Agreement commences on the date that it is signed or accepted via the internet by both MOSHTIX and the EVENT ORGANISER and continues for the term specified in clause 16 or the Schedule (unless terminated in accordance with the terms of this Agreement).
1.2. MOSHTIX shall provide the PROMOTER with the Services in accordance with Schedule A.
1.3. Any Schedule for the provision of additional services by MOSHTIX to the PROMOTER must be completed and signed by both parties, prior to the commencement of the provision of those services and each Schedule shall form a separable contract which shall be governed by the terms of the Schedule and this Agreement.
2. INCONSISTENCY BETWEEN AGREEMENT AND SCHEDULE
2.1. This Agreement shall be read in conjunction with the relevant Schedules as amended or attached from time to time.
2.2. Where this Agreement is inconsistent with the provisions of a Schedule, the provisions of the Schedule shall prevail to the extent of any inconsistency.
3. TICKET BUYERS AND PRIVACY
3.1. MOSHTIX provides the MOSHTIX PLATFORM to Ticket Buyers in accordance with a separate agreement with MOSHTIX ("the MOSHTIX Ticket Buyer Agreement"), which MOSHTIX may vary from time to time, which can be viewed accessible at http://www.moshtix.com.au/v2/faq/faq-terms-and-conditions
3.2. PROMOTER may supplement the MOSHTIX Ticket Buyer Agreement referred to in clause 3.1 by adding terms & conditions. Additional terms and conditions to be imposed by the PROMOTER may be posted on Event Pages by the PROMOTER using the MOSHTIX PLATFORM.
3.4. The MOSHTIX PLATFORM collects information about Ticket Buyers when Ticket Buyers purchase Tickets using the MOSHTIX PLATFORM.
3.5. Both parties agree that in using and requesting any information from Ticket Buyers referred to in this clause 4, they will each comply with the requirements of the Privacy Act 1988 (Cth) in respect of Personal Information as defined in the Privacy Act 1988 (Cth). The PROMOTER also agrees:
a) to take all reasonable steps to protect the personal information of the Ticket Buyers from misuse, loss and from unauthorised access, modification or disclosure;
b) not to sell, rent or provide the Personal Information of the Ticket Buyers to any third Parties; and
c) to indemnify the other Party in respect of any claim, loss, liability or expense suffered or incurred by that Party arising out of or in connection with a breach of the obligations set out in this clause 3.5 in respect of Personal Information.
4. OBLIGATIONS OF PROMOTER
4.1. Under this Agreement, the PROMOTER warrants that:
a) it has full power and authority to offer, sell, and honour the Tickets to the Events it offers via the MOSHTIX PLATFORM;
b) the information, images, MP3 track and other Event Content that it provides via the MOSHTIX PLATFORM do not infringe the Intellectual Property Rights or rights in respect of confidential information of any other person or entity; and
c) the PROMOTER's offer and sale of access to Events does not constitute a violation of any state or federal law, including without limitation consumer protection and obscenity laws that may be applicable.
4.2. PROMOTER acknowledges that:
a) Ticket Buyers may access Event Content through the MOSHTIX PLATFORM and the PROMOTER's website and the information displayed on these pages will be consistent; and
b) Other than as provided in this Agreement, MOSHTIX will not be liable to the PROMOTER in any way for any such access by Ticket Buyers.
4.3. The PROMOTER must not:
a) make any representations or claims inconsistent with MOSHTIX PLATFORM marketing materials provided by MOSHTIX from time to time;
b) make any false, misleading or deceptive statements with respect to the MOSHTIX PLATFORM; or
c) enter into any agreements or incur any liabilities on behalf of MOSHTIX without MOSHTIX's prior written consent or represent to any person that it has any authority to do so.
4.4. PROMOTER will advertise the MOSHTIX PLATFORM to Ticket Buyers in the following manner:
a) all PROMOTER advertising materials will direct Ticket Buyers to the moshtix website www.moshtix.com.au and MOSHTIX Retail Associates as listed on the moshtix website; and
b) the promoter may use the moshtix logo exactly as supplied by moshtix on PROMOTER advertising materials; and
c) all costs of advertising including design and production to be paid by the PROMOTER.
4.5 The PROMOTER agrees to indemnify and hold harmless MOSHTIX against any expense, loss or liability (including legal fees) in respect of any claims, or threatened claims, relating to the Tickets, Events, Event Content or information offered in PROMOTER's Event listings on the MOSHTIX PLATFORM.
4.6. The PROMOTER agrees that:
a) all emails, SMS and web pages available from PROMOTER website, that are related to ticketing conducted by the MOSHTIX and are accessible by Ticket Buyers including Event calendars, Event promotional web pages, Ticket booking pages and confirmation emails and e-tickets will carry the "powered by MOSHTIX" logo, copy and URL;
5. PROVISION OF MOSHTIX PLATFORM
5.1. MOSHTIX agrees to make available the MOSHTIX PLATFORM to:
a) the PROMOTER in accordance with this Agreement; and
b) Ticket Buyers for the Events of the PROMOTER in accordance with the MOSHTIX Ticket Buyer Agreement.
5.2. MOSHTIX grants the PROMOTER a non-exclusive and non-transferable licence to access the MOSHTIX PLATFORM via an account login and password and make available the MOSHTIX PLATFORM to Ticket Buyers and website visitors via the PROMOTER's website.
5.3. In respect of the MOSHSCAN Door Systems, MOSHTIX will supply the equipment and software for a fee of $250.00, which includes (1) one moshcard reader. Additional services may be provided by written agreement.
5.4. The PROMOTER shall be liable for replacement costs of the MOSHSCAN equipment ($250 per reader) if that equipment is damaged, lost or stolen for any reason whilst under the PROMOTERS care, but MOSHTIX will be liable in the case that such equipment is faulty or otherwise fails to perform its required functions.
6. MOSHTIX PLATFORM AND INTELLECTUAL PROPERTY RIGHTS
6.1. The PROMOTER acknowledges and agrees that:
a) the MOSHTIX PLATFORM is the property of MOSHTIX and MOSHTIX owns all Intellectual Property Rights in the MOSHTIX PLATFORM;
b) all MOSHCARDS remain the property of MOSHTIX and are only licensed to Ticket Buyers on a non-transferable, royalty free basis for the purpose of purchasing Tickets using the MOSHTIX PLATFORM;
c) no property rights whatsoever in the MOSHTIX PLATFORM or MOSHCARDS are or will be vested in the PROMOTER;
d) MOSHTIX has the right to vary participation in and the terms and conditions of any loyalty program for Ticket Buyers in respect of MOSHCARDS, and where the terms and conditions are changed from time to time by MOSHTIX, Ticket Buyers are entitled to accrued benefits in respect of their MOSHCARDS to the date the relevant program is terminated;
e) Discounts or offers relating to PROMOTERS events can only be offered with written permission from PROMOTER.
6.2. MOSHTIX reserves the right to cancel, suspend, retain or reclaim a MOSHCARD if MOSHTIX reasonably suspects that the MOSHCARD is being used fraudulently.
6.3. PROMOTER acknowledges and agrees that MOSHTIX owns the design and function of the MOSHTIX PLATFORM including but not limited to components within any website of MOSHTIX or a MOSHTIX partner, client, or other PROMOTER.
6.4. PROMOTER acknowledges that MOSHTIX does not commit to supporting or specifying any particular browsing or operating platform, and that MOSHTIX has the right at any time to revise and modify its web pages, release subsequent versions thereof, and/or alter features, specifications, capabilities, functions, and other characteristics of the MOSHTIX PLATFORM and MOSHTIX website, all without notice to PROMOTER.
6.5. The PROMOTER must not:
a) edit, format, modify, alter, adapt, disassemble, translate, reverse engineer, de-compile, improve or amend the whole or any part of the MOSHTIX PLATFORM or any associated materials without the prior written consent of MOSHTIX. Consent for the above remains the absolute discretion of MOSHTIX;
b) bundle, package or otherwise promote licences of the MOSHTIX PLATFORM or any part thereof, with, or as part of, any other product or collection of products without the prior written approval of MOSHTIX;
c) copy or reproduce the MOSHTIX PLATFORM or MOSHTIX marketing materials without prior written approval from MOSHTIX;
d) purport to sell, transfer or assign any Intellectual Property Rights or any part of the services in the MOSHTIX PLATFORM;
e) use the MOSHTIX name in any way other than the direct promotion of MOSHTIX PLATFORM; or
f) attempt to discover the source code of the MOSHTIX PLATFORM. The source code is confidential and is protected by the copyright laws and treaties. No rights to use MOSHTIX or its licensors' trademarks are granted hereunder.
7. MOSHTIX OBLIGATIONS TO PROMOTER
7.1. MOSHTIX will provide the MOSHTIX PLATFORM control room and associated web pages for the PROMOTER to deliver Event Content, create and update an events calendar, update ticketing content, upload MP3 tracks, check bookings and sales reports, download door files, send email/SMS broadcasts and other associated functions.
7.2. MOSHTIX will provide the PROMOTER with;
a) An administrator account login and password that allows the PROMOTER to add or update Event Content and other features on the MOSHTIX PLATFORM.
b) A phone sales account login and password that only allows access to a list of events for sale and the booking functionality to support this.
c) Logins and passwords to the MOSHSCAN system that provide access to the booking history and functionality associated with patron swipe entry.
d) The PROMOTER further agrees to:
i) accept all responsibility for the protection, confidentiality, and use of these login and passwords; and
ii) promptly notify MOSHTIX of any compromise or unauthorised disclosure of these login and password.
8. SUPPORT AND SECURITY
8.1 MOSHTIX will provide a support e-mail address and phone number to the PROMOTER so that the PROMOTER can obtain technical assistance in dealing with any operational or other difficulty that may arise in connection with the PROMOTER's use of the MOSHTIX PLATFORM. Subject to the PROMOTER's prior written approval, MOSHTIX reserves the right to establish reasonable limitations on the extent of such support, and the hours at which it is available.
8.2. MOSHTIX will maintain the PROMOTER's Event Content in a secure manner and prevent any unauthorised access or changes to this Event Content.
8.3. MOSHTIX will maintain Ticket Buyers' information on a secure server and prevent any unauthorised access to this information, according to generally-accepted electronic commerce practices.
9. TICKETING CONFIRMATION
9.1. The PROMOTER agrees to accept, honour, and fulfil ticketing commitments that have been confirmed by MOSHTIX via the MOSHTIX PLATFORM.
9.2. Where the Tickets are sold online, by telephone call, mobile device or authorised retail outlet via the MOSHTIX PLATFORM and the PROMOTER is using the MOSHSCAN Door System:
a) Ticket Buyers receive web page confirmation via the MOSHTIX PLATFORM;
b) the MOSHTIX PLATFORM
(i) sends a confirmation email to the Ticket Buyer with a unique order number;
(ii) authorised retail outlets provide a moshcard and thermal receipt; and
c) the MOSHTIX PLATFORM generates a data file which is imported into the MOSHSCAN Door System; and
d) MOSHSCAN Door System allows for the swiping of credit cards and MOSHCARDS to provide entry to ticket buyers for a specific event.
9.3. For events under 500 patrons, where the Tickets are sold online, by telephone call, mobile device or authorised retail outlet via the MOSHTIX PLATFORM and the PROMOTER uses a manual printed door list:
a) Ticket Buyers receive web page confirmation via the MOSHTIX PLATFORM;
b) the MOSHTIX PLATFORM
(i) sends a confirmation email to the Ticket Buyer with a unique order number;
(ii) authorised retail outlets provide a moshcard and thermal receipt; and
c) the MOSHTIX PLATFORM generates an html door list that includes unique order details for each Event that can be printed.
d) The verification of credit card purchases requires the PROMOTER to match the credit card displayed and Ticket Buyer's name, and obtain a signature matching the credit card when the PROMOTER using the manual door list method. Any charge back's resulting from not collecting a valid signature are chargeable to the PROMOTER. MOSHTIX may also hold 20% of ticket proceeds for 90 days as a reserve for chargeback's where a signed door list is not returned to MOSHTIX by fax or mail.
10. FEES, CHARGES, PAYMENT and GST
10.1. MOSHTIX's fees will be as set forth in the Schedule A, as may be amended from time to time.
10.2. All Ticket Prices listed by the PROMOTER must be inclusive of any GST and will be considered so for the purpose of calculating those MOSHTIX fees set out in Schedule A.
10.3. For all retail sales through the MOSHTIX retail network MOSHTIX per ticket fees are set forth in Schedule A. MOSHTIX adds the ticket distribution fee to the Ticket price, and the Retail Associate adds their Retail Booking Fee to the resulting Ticket Price.
10.4. The fees for SMS and email credits are as specified in Schedule A. MOSHTIX provides the ability to purchase SMS and email credits via a top-up facility available via the MOSHTIX PLATFORM control room.
10.5. Unless the contrary intention appears, words or expressions used in this clause 10. which are defined in the A New Tax System (Goods and Services Tax) Act 1999 or the Trade Practice Act 1974, have the same meaning.
10.6. All sales, fees, and funds are payable in the currency the account is set-up in, currently there is an Australian Dollar, British Pounds and US Dollars options which are based upon the location of the PROMOTER and the currency the event is sold in.
11. CANCELLED EVENTS, DATE CHANGES, CHANGES IN ADVERTISED ACTS & REFUNDS
11.1. In the case of fully cancelled events MOSHTIX will batch refund all online, mobile device and telephone bookings in full, including Booking Fees. In the case of sales through the MOSHTIX retail network, MOSHTIX will refund each store in full, including Booking Fees. Moshtix will charge the Promoter the following administration fees for cancelled events
- Less than 10 tickets sold : no charge
- 10 - 100 tickets sold : $100
- 100 ticket sold : $250
Moshtix may waive this fee at Moshtix discretion.
11.2. In the case of postponed, delayed or date changed events, all ticket sales prior to notification of such change will be fully refundable if a request is received from the PROMOTER or the ticket purchaser to make a refund.
11.3. In the case of a change in advertised acts, all ticket sales prior to the notification will be entitled to a refund unless the terms and conditions of sale exclude such a refund. In all cases where refunds are requested by patrons and the PROMOTER excludes or prevents such refund, and the patron undertakes a chargeback through their credit card supplier or bank, the PROMOTER shall be liable for the chargeback.
12. PAYMENT OF TICKET PROCEEDS
12.1. MOSHTIX collects all payments for sales made via all Internet, Mobile Phone and Phone sales channels using the MOSHTIX merchant facility, unless Moshtix gives written permission to the PROMOTER to establish and use their own merchant facility. If PROMOTER uses their own merchant facility then these funds are collected by them directly. In all situations funds collected from Paypal are settled at the successful completion of the event.
12.2. MOSHTIX collects all payment for sales made via the MOSHTIX Retail Network on a weekly basis from Retail Associates. These funds are only paid to the PROMOTER after successful completion of an event. Moshtix guarantees to pay PROMOTER these ticket sales independent of payment to MOSHTIX by each retail store.
12.3. If MOSHTIX is responsible for paying the Event Holder then MOSHTIX requires the Event Holder to (i) provide banking EFT details when they list the Event for sale with MOSHTIX or (ii) at a later date on Event Holder letterhead along with an authorisation to pay to this account for their Event. Once these payment details have been received MOSHTIX will pay net ticket sales due on successfully completed events directly by EFT to the Event Holder nominated bank account within 7 business days
13.1. Each Party agrees to keep the Confidential Information of the other Party confidential.
13.2. Information concerning the business affairs, finances, methods of operation and other confidential topics of either Party (collectively, "Confidential Information") shall be kept confidential by both Parties and not disclosed unless such information becomes publicly available. Each Party will ensure that its employees, agents, sub-distributors, contractors and other persons within its control comply with this clause 13
14. NO IMPLIED WARRANTIES
14.1. Neither Party shall be liable to the other for any delay or failure in performance under this Agreement resulting directly or indirectly from acts of God, terrorism or any causes beyond its reasonable control.
15. WARRANTIES AND LIABILITY
15.1. The PROMOTER warrants that it has not relied on any warranty, condition or representation made by MOSHTIX that has not been expressly stated in this Agreement.
15.2. MOSHTIX warrants that the Services provided under this Agreement will be performed to the best of its ability and is fit for the purpose it has been contracted and will achieve the level of performance required by the PROMOTER.
15.3. Except as expressly provided to the contrary in this Agreement, and subject to this clause, all terms, conditions and warranties whether implied, statutory or otherwise relating to this Agreement are excluded.
15.4. Nothing herein shall exclude restrict or modify any term, condition or warranty which may at any time be implied by any applicable statute where to do so would be illegal or would render any provision of this Agreement void. Where it is permitted by statute, MOSHTIX's liability in respect of any implied term, condition or warranty shall be limited at MOSHTIX's option to:
a) the replacement of any product supplied by MOSHTIX or the supply of an equivalent product; or
b) the resupply of services.
15.5. Except in respect of any Ticket Price Proceeds collected or held by MOSHTIX on behalf of the PROMOTER, MOSHTIX shall not be liable for any economic loss including loss of profits or wasted expenditure or any loss of goodwill, custom or any incidental, special or consequential loss or damage arising out of or connected to the provision of Services by MOSHTIX under this Agreement.
15.6. If the PROMOTER makes a claim against MOSHTIX for any act or omission by MOSHTIX relating to this Agreement whether the claim is based in contract, negligence or statue, MOSHTIX's liability in respect of that claim (except a claim for Ticket Price Proceeds collected or held by MOSHTIX on behalf of the PROMOTER) is limited to the aggregate of the Fees and Charges paid to MOSHTIX in respect of the Event from which the claim arises.
15.7. Notwithstanding any other provision of this Agreement, each Party will not be liable for any losses suffered or incurred by the other Party to the extent that those losses were caused by any act or omission of the other Party, its related bodies corporate, or any of its employees, officers or agents.
16. TERMINATION AND EFFECTS OF TERMINATION
16.1. The Initial Term of the Agreement will be a period of thirty (30) days.
16.2. After the Initial Term, either Party may terminate this Agreement (including the Schedules) provided 7 days written notice has been provided to the other Party.
16.3. If a Schedule is terminated in whole or in part, the Agreement, excluding the relevant Schedule or part Schedule which has been terminated, shall not be affected in any way whatsoever.
16.4. This Agreement automatically renews for a further period of thirty (30) days unless terminated by either Party.
16.5. MOSHTIX may terminate this Agreement immediately by notice to the PROMOTER if PROMOTER breaches any obligation set out in clause 4.
16.6. Either Party may terminate this Agreement or any one or more Schedules immediately by written notice if the other Party breaches any provision of this Agreement or the relevant Schedule and fails to rectify that breach within 7 days after receiving written notice requiring it to do so.
16.7. Each Party may terminate this Agreement immediately by notice in writing if:
a) the other Party disposes of the whole or any part of its assets, operations or business other than in the normal course of business;
b) any step is taken to enter into any arrangement between the other Party and its creditors;
c) the other Party ceases to be able to pay its debts as they become due;
d) the other Party ceases to carry on business; or
e) any step is taken to appoint a receiver and manager, a trustee in bankruptcy, a liquidator, an administrator or other like person over the whole or any part of the other Party's assets or business.
16.8. If this Agreement is terminated in its entirety by either Party
a) clauses 13 (Confidentiality), 14 (No Implied Warranties), 15 (Liability) and this clause 16.8 will continue;
b) the accrued rights and remedies of the Parties will not be affected;
c) The PROMOTER will stop using the MOSHTIX PLATFORM; and
d) to the extent that it is technically possible, the PROMOTER will delete all copies of the MOSHTIX PLATFORM from all systems of the PROMOTER and return all copies of the MOSHTIX PLATFORM associated materials and data in the possession of the PROMOTER, including but not limited to MOSHSCAN and MOSHCARDS.
16.9. If a Schedule is terminated by either Party then the accrual rights and remedies in respect of that Schedule will not be affected.
16.10. Any proven fraudulent or damaging activities or attempts by the PROMOTER to comprise the MOSHTIX PLATFORM will lead to immediate termination of this Agreement.
17.1. If a Party, acting in good faith, has a dispute in relation to this Agreement that Party must, before resorting to any external dispute resolution mechanisms (including arbitration or court proceedings), notify the other Party in writing setting out the reason for the dispute. The chief executive officers of the Parties or their nominees must seek to resolve the dispute. If the dispute is not resolved within 14 days of the receipt of the notice the Parties shall seek to resolve their dispute by mediation, the mediator to be agreed between them within 7 days or, failing agreement within that time, to be a Specialist Accredited Mediator nominated by the President of the Law Society of New South Wales. The Parties shall share equally the mediator's fees. Should mediation fail to resolve the dispute, the Parties shall be free to pursue other dispute resolution avenues.
18. ENTIRE AGREEMENT
18.1. This Agreement and the relevant Schedule constitute the entire agreement between the Parties with respect to its subject matter. It supersedes all previous proposals, both oral and written, negotiations, representations, writings and all other communications between the Parties.
19. EMAIL ADDRESS AND NOTICES
19.1 Any communications under this Agreement shall be delivered first by reply confirmed email and are deemed delivered upon receipt confirmed by the email addressed Party at the email address in Schedule A.
19.2. In respect of MOSHTIX, if you do not receive a reply receipt within 48 hours you should contact the MOSHTIX contact listed in Schedule A, or the most recent Schedule.
19.3. Notice will be deemed given:
a) In the case of email by a reply confirmed receipt;
b) In the case of hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving Party;
c) In the case of posting, three days after dispatch; or
d) In the case of facsimile, upon receipt of transmission if received on a business day or otherwise at the commencement of the first business day following transmission.
19.4. Either Party may change its nominated contact person, whose details are set out in Schedule A, and the address or facsimile transmission numbers for the purposes of this Agreement by giving notice of such change to the other Party within fourteen (14) days of the change.
20.1 Variations: This Agreement or any Schedule may only be varied in writing signed by both Parties.
20.2. Assignment: Neither Party may assign, sub-license or otherwise deal with any right or obligation arising out of this Agreement or any Schedule without the prior written consent of the other Party (which will not be unreasonably withheld), except that MOSHTIX may assign this Agreement in whole or in part to any MOSHTIX Group company.
20.3. No relationship: Nothing in this Agreement or any circumstances associated with it gives rise to any relationship of agency, partnership or employer and employee between MOSHTIX and PROMOTER.
20.4. Further action: Each Party must do all things necessary or desirable to give effect to, and must refrain from doing anything that might hinder performance of this Agreement.
20.5. Governing Law: This Agreement is governed by the laws of the State of NSW, Australia and each Party submits to the exclusive jurisdiction of the courts of that state in connection with this Agreement without giving effect to principles governing conflicts of laws. This Agreement may not be assigned by PROMOTER without express written permission of MOSHTIX.
20.6. Counterparts: This Agreement may be executed in any number of counterparts and the counterparts taken together constitute one and the same instrument.
20.7. Waiver: Any failure by a Party to compel performance by the other Party of any of the terms and conditions of this Agreement will not constitute a waiver of those terms or conditions, nor will it effect or impair the right of the first mentioned Party to enforce them at a latter time or to pursue remedies it may have for any subsequent breach of those terms or conditions.
ANNEXURE SCHEDULE A
1. MOSHTIX FEES
The following fees apply depending on the service option you select and only apply to Venues that do not have pre-existing agreements with Moshtix. Please check with the venue you are booking or your moshtix account manager for an Information pack that includes the Venues booking fee structure:
(i) Internet & Mobile Phone Booking Fee (paid by ticket buyer)
Moshtix sets a booking fee per ticket that includes Moshtix fee and a credit card processing fee.
(ii) Phone Booking Fee
Moshtix charges an additional fee per ticket for any transactions handled by our call centre.
MOSHTIX CHARGE BACK HOLDING PERCENTAGE.
If moshtix does not receive a signed door list back or you do not use MOSHSCAN, moshtix reserves the right to hold a CHARGE BACK RESERVE of up to 20% of Total Internet & Phone ticket proceeds including GST, held in trust for 90 days past the successful event completion date. For events that are cancelled, disrupted or otherwise considered unsuccessfully delivered, MOSHTIX reserves the right to hold 100% in reserve to cover credit card charge backs and refund requests, held in trust for 270 days. If your event is subsequently reheld successfully then holding reserve is held 90 days past the successful event completion date.
(iii) Retail Stores Distribution fee via moshcard (upon each ticket sale):
$1.00 Inc.GST per ticket. This can be added to your ticket price or deducted from your ticket price. Unless notified we will add to your ticket price.
(iv) Retail Stores Booking fee
Record stores will add their own booking fee, typically 10% of the Ticket price, minimum $2.50 per ticket, which is additional to the Retail Store distribution fee.
Moshtix charges a once only $2.00 new moshcard fee.
2. RELEVANT CONTACTS
Set out below are EVENT ORGANISER's contacts at MOSHTIX:
Click here to email Ticket Support
Phone 1300 GET TIX (438 849)
Click here to email Client Support
Phone 1300 GET TIX (438 849)
Click here to email Sales Support
Phone 1300 GET TIX (438 849)
PO Box 1272, Darlinghurst NSW 1300