PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. THESE TERMS AND CONDITIONS FORM A LEGALLY BINDING CONTRACT (the “Agreement”) BETWEEN YOU (“Client,” “you” or “your” AND HOMETOWN TICKETING, LLC A DELAWARE LIMITED LIABILITY COMPANY WITH OFFICES LOCATED AT 4305 W. DUBLIN GRANVILLE ROAD. DUBLIN, OH 43017 (“HomeTown,” “we,” “us,” or “our” AND CONTAIN IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT APPLY TO YOU AND YOUR USE OF THE SERVICES.
BY CLICKING “I ACCEPT,” CREATING AN ACCOUNT, OR ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THE AGREEMENT. IF YOU ARE ACCESSING THE SERVICES ON BEHALF OF A COMPANY, ORGANIZATION, OR SCHOOL, YOU AFFIRM THAT YOU HAVE THE LEGAL AUTHORITY TO BIND ANY SUCH COMPANY, ORGANIZATION, OR SCHOOL TO THIS AGREEMENT.
1. DEFINITIONS
1.1 The following terms have the meanings ascribed to them below for purposes of this Agreement.
(a) “Account” means the account you registered for on HomeTown’s website for use of the Services.
(b) “Card” means most U.S. issued, and most non-U.S. issued, credit and debit cards with a Visa, MasterCard, Discover and American Express logo, and any other card types, of which HomeTown reserves the right to add or remove in its sole discretion.
(c) “Card Association” means a payment Card association or network, including without limitation the network operated by each of Visa, Mastercard, Discover and American Express.
(d) “Card Association Rules” means the respective and collective by-laws, rules, regulations, operating manuals, operating letters and policies, and cardholder data security standards, as such may be amended from time to time, and established and imposed by the Card Association with respect to their payment methods.
(e) “Client Data” means any data, files, graphics, images, text or other information submitted, transmitted, or uploaded by or through Client or its users through the Services, for processing or storage by the Services.
(f) “Convenience Fees” fees charged by HomeTown for each Transaction as set forth in the Transaction Fee Schedule.
(g) “Documentation” means applicable documentation, user manuals, operating instructions, and terms (including third-party terms) provided or otherwise made available to you, as updated from time to time by HomeTown in its discretion.
(h) “Event” means a ticketed event for which you make available and sell tickets through the Services.
(i) “Fees” means the Service Fees, Convenience Fees, and Transaction Fees, as set forth in the Order Form and Transaction Fee Schedule.
(j) “Government Authority” means any regulator or other government agency or entity with jurisdiction over you, HomeTown, or the Services, as applicable.
(k) “Intercharge Fees” means fees set by the applicable Card Associations and Payment Processors that are payable on each Transaction, as set forth in the Transaction Fee Schedule.
(l) “Law(s)” means any law (including common law), statute, subordinate legislation, act, code, treaty, order decree, rule, or regulation of any Government Authority, it being understood that the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) shall be excluded.
(m) “Net Sales Proceeds” means the funds remitted to Client resulting from Payments, calculated as the sale price of the product or service, less Fees applicable to the relative Transaction.
(n) “Order Form” means an ordering document executed by the Parties pursuant to this Agreement describing the Services to be provided by HomeTown to Client, and the Fees to be paid by Client to HomeTown for such Services.
(o) “Other Payment Method” means Apple Pay, Google Pay, PayPal, Venmo, cash and other alternative payment methods accepted by HomeTown, of which HomeTown reserves the right to add or remove from time to time, in its sole discretion.
(p) “Payment” means a payment made by a Purchaser to Client via a Transaction using a Card or Other Payment Method.
(q) “Payment Processor” means a third-party utilized by HomeTown for the processing of Fees associated with a Transaction.
(r) “Payment Services” means payment processing services made available by HomeTown to Client that are not provided by a Payment Processor.
(s) “PCI-DSS” means the Payment Card Industry Data Security Standards.
(t) “Privacy Policy” means HomeTown’s privacy policy located at: https://www.hometownticketing.com/company/privacy-policy/, as updated by HomeTown from time to time.
(u) “Prohibited Activity” means any activity or restricted business category for which the Services cannot be used as determined by the Card Associations, Payment Processors, and/or Government Authorities.
(v) “Purchaser” means a customer who purchases one or more products or services from Client
(w) “Services” means HomeTown’s online ticketing software platform and related services on HomeTown’s mobile application and website, and other related products and services set forth on an Order Form.
(x) “Service Fees” means fees charged to and payable by Client for access to and use of the Services licensed, provided and Supported by HomeTown as set forth on the Order Form.
(y) “Support” means HomeTown’s standard support services as described in the then-current support services description posted online or otherwise provided by HomeTown.
(z) “Tax” or “Taxes” means any applicable taxes, levies, duties or similar assessments of any nature imposed by a Government Authority, including, for example, sales and use tax, gross receipts tax, value-added tax (VAT), goods and services tax (GST) and withholding taxes.
(aa) “Ticketholder” means a Purchaser who purchases tickets for an Event through the Services.
(bb) “Transaction” means a Payment transaction request initiated via the Payment Processor or Payment Services, through which the Payment Processor or HomeTown (as the case may be) is directed to capture funds for or from a Purchaser with respect to a Payment.
(cc) “Transaction Fee(s)” means (i) the purchase prices of the ticket, product or service; (ii) Interchange Fees; and (iii) Convenience Fees.
(dd) “Transaction Fee Schedule”means HomeTown’s then-current fee schedule available here, or as otherwise provided by HomeTown to Client.
2. SERVICES & HOMETOWN RESPONSIBILITIES
2.1 Provision of Services & Support. HomeTown will: (a) make available the Services ordered and/or licensed by Client pursuant to an Order Form, (b) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week except for planned downtime, and (c) provide Support to Client in relation to the Services.
2.2 Modifications. HomeTown may upgrade, alter, amend, revise, or eliminate features of the Services or Support in its sole discretion. Client agrees that its purchases are not contingent on the delivery of any future functionality or features of the Services or Support, or dependent on any oral or written public comments made by HomeTown regarding future functionality or features of the Services or Support.
2.3 Protection of Client Data. During the Term, HomeTown will maintain appropriate administrative, physical, and technical safeguards designed for protection of the security, confidentiality and integrity of Client Data to the extent in HomeTown’s possession or control. Personal information will be collected and processed in accordance with HomeTown’s Privacy Policy. The Privacy Policy is hereby incorporated into this Agreement by reference.
3. USE OF SERVICES & CLIENT RESPONSIBILITIES
3.1 Accounts. In order to list or sell tickets for an Event (defined below), and/or accept Payment from Purchasers through use of HomeTown’s Services, you must register an Account. When opening an Account you must provide complete and accurate information including but not limited to your full name, address, phone number, email address and payment method. If your registration or payment information changes at any time, you must promptly update your details in your Account. You acknowledge that we may charge any one of your payment methods on file for amounts you owe us, costs we incur or other losses arising out of your violation of this Agreement. We reserve the right to temporarily or permanently suspend Accounts with incomplete or inaccurate information. You are solely responsible for maintaining the confidentiality of your Account information and password. You are solely responsible for any activity relating to your Account. Your Account is not transferable to another party.
3.2 Client Responsibilities. Client will: (a) be responsible for the safety and operation of its Events, including implementing any refund policies and issuing refunds to Ticketholders, (b) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify HomeTown promptly of any such unauthorized access or use, (c) use Services only in accordance with this Agreement and all applicable laws and regulations (d) be responsible for its Ticketholders’ compliance with this Agreement and all applicable laws and regulations, and (e) comply with any Documentation. Any use of the Services in breach of the foregoing by Client or Purchasers that in HomeTown’s judgment threatens the security, integrity or availability of the Services, may result in HomeTown’s immediate suspension of the Services, however, where practicable, HomeTown will use commercially reasonable efforts under the circumstances to provide Client with notice and an opportunity to remedy such violation or threat prior to any such suspension.
3.3 Service Usage Restrictions. Client will not and will ensure its Purchasers do not: (a) make any Service available to anyone other than Client or Purchasers, or use any Service for the benefit of anyone other than you or your Purchasers, (b) sell, resell, license, sublicense, distribute, make available, rent or lease access to the Service, or include any Service in a service bureau or outsourcing offering, (c) use a Service to store or transmit infringing, libelous, sexually explicit images, messages, or cartoons, as well as any transmission that contains ethnic slurs, racial epithets, or anything that may be construed as harassment or disparagement or that is otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses, (e) interfere with or disrupt the integrity or performance of any Service, (f) attempt to gain unauthorized access to any Service or its related systems or networks, (g) permit direct or indirect access to or use of any Services in a way that circumvents a contractual usage limit, or use any Services to access or use any of HomeTown intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) frame or mirror any part of any Service, other than framing on Client’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, or (3) copy any ideas, features, functions or graphics of the Service.
3.4 Ticketholder Agreement. Ticketholders will be obligated to agree to HomeTown’s user terms and conditions, specifying such Ticketholders’ rights and obligations with respect to their use of the Services. The current version of the Ticketholder Agreement is available at https://www.hometownticketing.com/company/ticket-holder-agreement/.
4. FEES AND PAYMENT
4.1 Ticketing Price. When listing a ticket for sale through the Services, Client must set a face value sales price for which Client is willing to sell each ticket. By listing a ticket for sale, Client is making a binding offer to sell that ticket to a Purchaser who purchases the ticket at the applicable sales price. When a Purchaser accepts Client’s offer by purchasing a ticket through the Service, Client is contractually bound to deliver that exact ticket for the sales price and within the required delivery timeframe. Client is obligated to monitor its inventory and ensure all listings are accurate. For online and point of sale Transactions, HomeTown will charge the Transaction Fees directly to Ticketholders at the time of the transaction. If purchased by Client under an Order Form, season tickets and passes may be personalized and available in both digital and printed format, as further specified in the applicable Order Form, and any Fees for such customization may vary by format (and will include handling costs), and are the responsibility of Client. For any Payment not processed with a Card, or Transactions processed for products and services provided free of charge by the Client, will be invoiced to the Client, along with any applicable printing and shipping costs.
4.2 Transaction Fees. For each Transaction, HomeTown, or the Payment Processor (as the case may be) will charge the purchase price plus applicable Transaction Fees, and will remit payment of the Net Sales Proceeds to Client.
4.3 Service Fees. Client’s use of the Service is subject to payment of applicable Service Fees as set forth on the Order Form. During the Term, Client shall pay HomeTown the Service Fees for each Service in accordance with the payment terms of this Agreement and the Order Form.
4.4 Fees Generally. Except as otherwise specified herein or in an Order Form, (i) Client’s payment obligations are non-cancelable and Fees paid are non-refundable, and (ii) quantities purchased cannot be decreased during the relevant term. Each calendar year, HomeTown reserves the right, in its sole discretion to increase the Fees up to a maximum of 10% over the then-current pricing. HomeTown will notify the Client 60 days in advance of the effective date of any Fee increase. Client will have 30 days from the date of notification to accept the new Fees or terminate the Agreement by providing written notice to HomeTown.
4.5 Payment Processing Utilization. Client agrees to use HomeTown’s then-current Payment Processor for all sales to Purchasers. The Client shall set up an account directly with the Payment Processor and hold an independent business relationship with it. As of the Effective Date, HomeTown’s preferred Payment Processor is Stripe, whose terms and conditions are found at https://www.stripe.com/legal/ssa. HomeTown reserves the right to change its preferred Payment Processor at any time without advance notice to or approval from Client. HomeTown shall publish new payment instructions upon any change of its preferred Payment Processor. Any Transactions processed by a Payment Processor on behalf of Client shall be solely between Client and the applicable Payment Processor, subject to the terms and conditions agreed to by Client with the Payment Processor. HomeTown is not a party to such Payment Processor terms and conditions, and is not liable in any way to Client for any Transactions processed by a Payment Processor. Client shall look solely to the Payment Processor for the settlement of, and any disputes or chargebacks related to, Transactions processed by the Payment Processor. If Client is unable to establish an account with the Payment Processor, HomeTown may make available to client Alternative Payment Services subject to Section 4 of this agreement.
4.6 Refund to Ticketholders. Client is solely responsible for issuing any refunds to its Ticketholders, and for implementing a refund policy for each Event. Client refund policies must be visible on Client’s website and conveyed to any Ticketholders who purchase tickets through the Services. Client shall notify HomeTown, in writing, of any Client refund policies. HomeTown shall not provide refunds to Client of any Fees, except in the case of full cancelation of an Event by the Client due to a Force Majeure Event (as defined below). Any other full refunds Client may choose to make to its Ticketholders will be deducted from Client’s account balance to cover the costs of refunds. HomeTown shall have no liability whatsoever in connection with or arising from any such decision to provide refunds.
4.7 Ticketholder Credit Card Chargebacks. HomeTown may, at its sole discretion, work with the Client to review any credit card chargeback from Ticketholder transactions on a case-by-case basis. Client agrees that Client is solely responsible and liable for all chargebacks and associated fees pursuant to its agreement with the Payment Processor.
4.8 Taxes. HomeTown’s Fees do not include any Taxes. Client is responsible for determining whether any taxes are due on Client’s sale of its products and services to Purchasers, and for collecting and remitting such Taxes. Any applicable Taxes must be included in the sales price of Client’s products and services. Client is responsible for paying all Taxes associated with its purchases of Services hereunder. If HomeTown has the legal obligation to pay or collect Taxes for which Client is responsible under this section, HomeTown will invoice Client and Client will pay that amount unless Client provides HomeTown with a valid Tax exemption certificate authorized by the appropriate taxing authority. For clarity, HomeTown is solely responsible for Taxes assessable against it based on its income, property and employees.
5. ALTERNATIVE PAYMENT SERVICES
5.1 HomeTown Payment Services. If Client is unable to establish an account with Payment Processor pursuant to Section 4.4, Client agrees to use, and HomeTown may, at its sole discretion, offer to Client certain Payment Services. Where Client is using HomeTown’s Payment Services, Client acknowledges and agrees that HomeTown is providing the Payment Services as payee-agent, and all settlement of Payments received by HomeTown that are submitted by Client’s customers through the HomeTown Services shall constitute Payments directly to the Client.
5.2 Compliance. In connection with the Payment Services, Client will not use the Payment Service to sell, or offer to sell, any product or service that is considered a Prohibited Activity. Client agrees to at all times comply with all applicable Card Association Rules, and Laws.
5.3 Cardholder and Transaction Data. Client will comply with all then-current legal obligations and security measures, as applicable, including, but not limited to, those issued by the Card Associations and the Federal Trade Commission associated with the collection, security, dissemination and destruction of Purchaser data and Transaction data, and expressly including PCI DSS. Client agrees that it will comply with all HomeTown security protocols and security advisories in effect during your use of the Payment Services. Client acknowledges that it is responsible for the security of Purchaser data and Transaction data while in its possession. Client warrants that it has taken such precautions as are necessary to ensure that its servers and electronic systems are secure from breach or intrusion by unauthorized third parties. In the event Client’s systems are breached and an unauthorized third party has access to or has accessed Purchaser data or Transaction data, Client shall promptly notify HomeTown of such breach and take such precautions as may be necessary to prevent such breaches from occurring in the future.
5.4 Transaction Authorization and Accuracy. Client acknowledges that HomeTown shall not be liable for any improperly processed or unauthorized Transactions or illegal or fraudulent access to Client’s account, Purchaser data or Transaction data. Client may only submit Transactions that Purchasers authorize, and only after the applicable products and services have been delivered to the Purchaser; except, Client may submit a Transaction before products and/or services have been delivered to the Purchaser where the Purchaser has authorized a Transaction for a partial or full prepayment for products and/or services to be provided at a future time, or Client has otherwise obtained the Purchaser’s consent. Client must not proceed with a Transaction if (a) it knows or should have known that the Transaction was fraudulent, not authorized by the Purchaser, or illegal in Client’s or Purchaser’s jurisdiction; (b) Client receives a response declining to authorize the Transaction; or (c) the Purchaser’s ability to use a payment method has expired or is no longer valid. Client must not submit any Transaction that duplicates a Transaction that is subject to a dispute, or was previously disputed and subsequently resolved in your favor.
5.5 Liability and Management of Chargebacks. Client is solely liable for the transaction amount and fees associated with disputes and chargebacks in accordance with Card Association Rules, and HomeTown may collect such funds by deducting or setting off such funds from payments to Client. Any election by HomeTown to absorb chargebacks or chargeback fees on Client’s behalf does not constitute a continuing agreement to absorb such costs and liability in the future. With respect to Payment Services under Section 5 of this Agreement, HomeTown will use reasonable efforts in accordance with Card Association Rules to process Client’s response to chargebacks, but HomeTown will bear no responsibility to Client or any Ticketholder for any resolution of such disputes. To the extent applicable, HomeTown will meet response deadlines imposed on it by the Card Associations.
5.6 Termination or Suspension by HomeTown. In addition to other termination provisions in this agreement, HomeTown may, without prior notice, terminate or suspend Payment Services if in its reasonable judgement: (a) chargebacks and refunds are excessive as determined in HomeTown’s sole discretion; (b) HomeTown or its payment processing partners have reason to believe Client has violated or may violate in the future any applicable Laws, regulations, policies, guidelines, ordinances, rules, including but not limited to Card Association Rules and PCI DSS requirements; (c) HomeTown is unable to collect any amounts due to HomeTown from Client resulting from chargebacks or refunds; or (d) Client uses Payment Services to sell, or offer to sell, any product or service that is considered a Prohibited Activity.
5.7 Settlement of Funds. Client hereby appoints HomeTown as its limited agent to receive payments to Client from HomeTown’s payment processing partners in settlement of payments processed under the Payments Services. Client acknowledges and agrees that such payment received by HomeTown shall be considered the same as payment made directly to Client and will constitute receipt by the Client of payments from the Client’s customers. HomeTown will pay such funds to Client on a schedule and using a method defined in the Order Form, less chargebacks, refunds, and any Payments Fees due to HomeTown. In accepting appointment as the limited authorized agent for Client, HomeTown assumes no liability for any acts or omissions of Client.
5.8 Reserves Held by HomeTown. HomeTown may from time to time withhold from its settlement of funds to Client an amount that HomeTown deems, in its reasonable discretion, is necessary to offset the potential loss related to chargebacks and refunds.
6. PROPRIETARY RIGHTS AND LICENSES
6.1 License Grant. During the Term, and subject to the payment of applicable Service Fees (if any), HomeTown grants to Client a limited, non-exclusive, non-transferable, right and license to access and use the Services in accordance with this Agreement and the Documentation in connection with Client’s business.
6.2 Reservation of Rights. Subject to the limited rights expressly granted hereunder, HomeTown reserves all of their its title and interest in and to the Services, including all of their related intellectual property rights. The Services are licensed, not sold. No rights are granted to Client hereunder other than as expressly set forth herein. Subject to the limited rights expressly granted hereunder, Client reserve all of its title and interest in and to the Client Data.
6.3 Trademark License by Client to HomeTown. Client grants HomeTown a worldwide, limited-term license to host, copy, use, transmit, reproduce and display any organizational names, logos, and trademarks (and to authorize HomeTown’s third party service providers, subcontractors, and media outlets to do so) in connection with the Services and in advertising or promotional materials, in any and all media whether now or hereafter existing, and program code created by or for Client using a Service or for use by Client with the Services as appropriate for HomeTown to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement.
6.4 License to Use Client Data and Feedback. Client grants to HomeTown a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Client or Ticketholders relating to the operation of HomeTown’s Services. Further, Client grants to HomeTown a worldwide, perpetual, irrevocable, royalty-free license to use Client Data, including the right to compile and retain anonymous, de-identified aggregated data (including website traffic, total ticket sales and revenue, volume of participating schools, and other aggregate data of similar nature), for any lawful purpose, including but not limited to marketing and reporting efforts, and analytical and statistical purposes in order to monitor and improve the operations and reliability of the Services. This Section 6.3 will survive any termination or expiration of the Agreement.
7. CONFIDENTIALITY
7.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of HomeTown includes the Services, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, financial information, technology and technical information, product plans and designs, copyrights, patents, trade secrets, know-how and other intellectual property rights, analyses, data, formulae, clients and client lists, suppliers and supplier lists, methods, studies, analytics, and business or other processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section also apply to Confidential Information exchanged between the parties in connection with the evaluation of additional HomeTown services.
7.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its legal counsel or accountants will remain responsible for such legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, HomeTown may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or other provider to the extent necessary to perform HomeTown’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
7.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
8.1 HomeTown Warranties. HomeTown warrants that during the applicable term the Services will: (a) perform materially in accordance with the applicable Documentation and (b) company with laws and government regulations applicable to HomeTown’s provision of its Services to its clients generally (i.e., without regard for Client’s particular use of the Services).
8.2 Client Warranties. Client warrants that (a) it is an administrator, coordinator, host, or manager of Events, (b) it has the authority and right to offer, sell and honor tickets to Events, and (c) the Events and sales of tickets to the Events do not constitute a violation of any applicable laws or any contractual obligations with third parties.
8.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SERVICES PROVIDED ON A FREE-TRIAL BASIS ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
9. INDEMNIFICATION
9.1 Indemnification by HomeTown. HomeTown will defend Client against any claim, demand, suit or proceeding made or brought against Client by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Client”), and will indemnify Client from any damages, attorney fees and costs finally awarded against Client as a result of, or for amounts paid by Client under a settlement approved by HomeTown in writing of, a Claim Against Client, provided Client (a) promptly gives HomeTown written notice of the Claim Against Client, (b) gives HomeTown sole control of the defense and settlement of the Claim Against Client (except that HomeTown may not settle any Claim Against Client without Client’s written consent unless it unconditionally releases Client of all liability), and (c) gives HomeTown all reasonable assistance, at HomeTown’s expense. If HomeTown receives information about an infringement or misappropriation claim related to a Service, HomeTown may in its discretion and at no cost to Client (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching HomeTown’s warranties set forth in this Agreement, (ii) obtain a license for Client’s continued use of that Service in accordance with this Agreement, or (iii) terminate Client’s Order Forms for that Service upon 30 days’ written notice and refund Client any prepaid fees covering the remainder of the term of the terminated Order Forms. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Client; (2) a Claim Against Client arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by HomeTown, if the Services or use thereof would not infringe without such combination; (3) a Claim Against Client arises from Services under an Order Form for which there is no charge; or (4) a Claim against Client arises from a Client’s breach of this Agreement, the Documentation or applicable Order Forms.
9.2 Indemnification by Client. Client will defend HomeTown and its affiliates against any claim, demand, suit or proceeding made or brought against HomeTown by a third party (a) alleging that any Client Data or Client’s use of such data with the Services infringes or misappropriates such third party’s intellectual property rights, (b) based on Client’s (or its personnel) gross negligence, willful misconduct, fraud or other false, misleading or deceptive business practices, (c) arising from Client’s use of the Services or Client Data in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form, and (d) any claim arising from an Event (each a “Claim Against HomeTown”), and will indemnify HomeTown from any damages, attorney fees and costs finally awarded against HomeTown as a result of, or for any amounts paid by HomeTown under a settlement approved by Client in writing of, a Claim Against HomeTown, provided HomeTown (a) promptly gives Client written notice of the Claim Against HomeTown, (b) gives Client sole control of the defense and settlement of the Claim Against HomeTown (except that Client may not settle any Claim Against HomeTown without HomeTown’s written consent unless it unconditionally releases HomeTown of all liability), and (c) gives Client all reasonable assistance, at Client’s expense. The above defense and indemnification obligations do not apply if a Claim Against HomeTown arises from HomeTown’s breach of this Agreement, the Documentation or applicable Order Forms.
9.3 Exclusive Remedy. This “Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.
10. LIMITATION OF LIABILITY
10.1 Limitation of Liability. EXCEPT FOR CLIENT’S PAYMENT OBLIGATIONS OR LIABILITY RELATING TO (I) INDEMNITY OBLIGATIONS HEREUNDER, (II) BREACH OF SECTION 7 (CONFIDENTIALITY), AND (III) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF SERVICE FEES AND CONVENIENCE FEES PAID BY CLIENT TO HOMETOWN HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT TICKETHOLDER’S PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
10.2 Exclusion of Consequential and Related Damages. . EXCEPT FOR LIABILITY RELATING TO (I) INDEMNITY OBLIGATIONS HEREUNDER, (II) BREACH OF SECTION 7 (CONFIDENTIALITY) HEREUNDER, AND (III) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
11. TERM AND TERMINATION
11.1 Term of Agreement. This Agreement commences on the Effective Date and continues until all Order Forms hereunder have expired or have been terminated (the “Term”).
11.2 Termination. A party may terminate this Agreement for cause upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period. HomeTown may terminate this Agreement upon 90 days written notice to Client.
11.3 Surviving Provisions. The sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Indemnification,” “Limitation of Liability,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement.
12. GENERAL PROVISIONS
12.1 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. The parties agree reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.
12.2 Force Majeure. Neither party shall be liable and shall be excused from performance of its obligations under this Agreement if such failure to perform results from compliance with any requirement of applicable law, acts of God, fire, natural disaster, strikes, labor disputes, civil disturbance, embargo, terrorist attack, war, pandemic or epidemic, technical failures, power, electrical or utilities outages, insurrection, riot or other causes beyond the reasonable control of such party (each, a “Force Majeure Event”). Any delay resulting from a Force Majeure Event shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances. HomeTown may terminate this Agreement and any Order Form executed hereunder without liability if a Force Majeure Event lasts more than 30 days.
12.3 Entire Agreement and Order of Precedence. This Agreement, together with any applicable Order Form, is the entire agreement between HomeTown and Client regarding Client’s use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Client purchase order or in any other Client order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be first the applicable Order Form and second this Agreement. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
12.4 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes. There are no third-party beneficiaries under this Agreement.
12.5 Waiver; Severability. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
12.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, HomeTown may assign this Agreement without the other party’s consent to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.7 Governing Law, Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any other jurisdiction. Any legal suit, action, or proceeding arising out of or related to this Agreement shall be instituted exclusively in the federal courts of the United States or the courts of the State of Ohio, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding and waives any objection based on improper venue or forum non conveniens.
12.8 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be sent to HomeTown Ticketing, LLC, 4305 W Dublin Granville Road Dublin, OH 43017 ATTN: CFO with a copy to legal@hometownticketing.com. Notice from HomeTown to Client may be sent by email, or registered mail, in each instance to the address provided on the applicable Order Form. Notices shall be deemed to have been given: (a) when received, if hand-delivered or sent by a reputable international courier service, (b) five (5) business days after mailing, if mailed by first class certified or registered airmail, postage prepaid, return receipt requested, and (c) on the date sent by email if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient.