Terms of Use

A. Definitions

1. Event(s): Any live or recorded entertainment feature, sporting event, cultural attraction or form of travel sponsored, promoted or hosted by User at the Venue for which attendance or passage is limited or restricted through the sale of Tickets.
2. Online Sale(s): Any sale conducted from a microprocessor-based device, including but not limited to computers, kiosks, ATMs, televisions, HTTP- or SAP-based telephone devices, dumb terminals, personal digital assistants, analog or digital cellular phones, across a public or private data network, without the intervention of a human sales agent.
3. Zoobis System: All Zoobis proprietary technology, including but not limited to software, and all Zoobis operated or contracted services that have or will be established by Zoobis for the purpose of selling, delivering, printing, or otherwise making Tickets available for sale. The Zoobis System includes, but is not limited to, the current customized, password-protected, world wide web application ("Application"), which can be accessed over the Internet by a user in order to perform operations related to Online Sales, call centre sales, as well as any future modifications to the Application and any additions to the Application, such as other technologies developed or owned by Zoobis in the future relating to ticketing.
4. Buyer: A consumer who purchases Tickets for an Event listed in the Zoobis System.
5. Service Fees: Any amount charged to a Buyer in excess of the advertised face value of the Ticket for the convenience of purchasing Tickets through the Zoobis System. Service Fees are comprised of the Basic Service Fee and the Human Assistance Service Fee.
6. Settlement: Payment by Zoobis to User of amounts due to User under the terms of this Agreement.
7. Ticket: A printed, electronic or other type of evidence of the right to occupy space at or to enter or attend an Event even if not evidenced by any physical manifestation of such right, such as a "smart card" or electronic bar code.
8. Venue: The venue(s) described in Exhibit A to the Agreement as well as any other venue or location at which User promotes, schedules or presents an Event in respect of which User has authority to sell Tickets to the public.
9. Online Schedule: Database of Events maintained on the Zoobis System.
10. Will-Call: Tickets to be picked up or rights of admission to be claimed at the Venue box office or point of entry that have been purchased by Buyer.

B. Zoobis and User Responsibilities Regarding Maintenance of Online Schedule

1. Zoobis Responsibilities: Zoobis shall provide User with documentation on the use of Zoobis System and User shall have access to the Zoobis System at no cost other than as listed herein, subject to the limitations stated herein. Zoobis shall also:
   1. Build User's initial Event on the Zoobis System together with User (e.g., step-by-step introduction to Zoobis System with a client services representative via teleconference).
   2. Create all price schedules to Events requiring a variety of price tiers within a single allotment of Tickets.
   3. Provide email technical support for the use of the Zoobis System on an as-needed basis and at the reasonable request of User.
2. User Responsibilities: User acknowledges that an important advantage of the Zoobis System is its user-friendliness and self-service features and that User will take all reasonable efforts to become well versed in operating the Zoobis System and become an "independent user" of the Zoobis System. In connection therewith, User agrees to the following:
   1. User is responsible for its own Internet access. Zoobis bears no responsibility for service interruptions or functionality impairment caused by corporate "firewalls", defects, or other problems or obstacles in a third party's software.
   2. User shall be solely responsible for operating the Zoobis software and for maintaining all aspects of its account, including but not limited to, maintaining its Online Schedule, building Events on the Zoobis System, proofing any Events built by or any Online Schedule updating done by Zoobis, amending Event builds, inputting Ticket prices, terminating sales for cancelled Events and retrieving Will-Call lists for all scheduled Events on sale through the Zoobis System and listed on User's Online Schedule. User agrees to be solely responsible for any and all errors made with regard to inputting Event information and maintaining its own Online Schedule and account.
   3. User shall follow all on-screen guidelines and instructions relating to Event data entry.
   4. User shall retrieve all account information from its online account via the Internet and shall not telephone Zoobis for accessible account information, unless extenuating circumstances exist (e.g., in the event of an ISP service interruption or outage).
   5. User agrees to terminate Online Sales for every Event sold through Zoobis at least one (1) hour prior to the beginning of each performance or occurrence of an Event.
   6. When terminating sales, User agrees to use the Zoobis System to print all Ticket orders and/or generate a final Will-Call manifest that may be used to identify Buyers who have purchased Tickets to be picked up at the Venue.
   7. User shall complete the Client Information sheet attached to this Agreement as Exhibit A and to provide updates of the information on Exhibit A to Ticketmaster if any of the information becomes out-of-date.
3. Control of Data in the Zoobis System: Notwithstanding the self service features afforded to User, Zoobis retains the right to control all content and listings of Events entered into the Zoobis System.
4. Zoobis Assistance in Maintenance of Online Schedule: In the event that User is unable to create or edit Event information for technical reasons, Zoobis shall update User's Online Schedule at no additional cost provided that (i) Zoobis must receive all such updated Event listing information for User's Events via email or fax in a timely fashion, and (ii) User shall be solely responsible for alerting Zoobis of any and all errors made to the Event information. To help ensure the accuracy of Event listings, Zoobis will not update User's Online Schedule based on verbal requests.
5. Changes and Cancellations: User shall promptly notify Zoobis via telephone, email or fax, of any scheduling changes and/or cancellations for scheduled Events on sale through the Zoobis System and listed in User's Online Schedule. User is solely responsible for terminating sales to its Events that have been cancelled via the Zoobis System.
6. No Price Discrimination: User will not charge a higher face value than User charges for Tickets sold on the Zoobis System than User charges for the same Event Tickets sold through any other purchase mode or location.
7. Limited Use of Call Centre: User agrees that Zoobis's call centre shall be advertised for the sole purpose of purchasing Tickets to User's Events and not for general information regarding User's Events. User shall in no way advertise Zoobis or Zoobis's telephone number(s) as a source of general Event information.

C. Additional Fulfillment Services

1. In addition to Will-Call, Zoobis may, at its option, offer to deliver Tickets to Buyers via Canada Post or UPS (or similar carrier) or electronic means (e.g. ticketFast). Zoobis's standard charges for these delivery options shall apply and will be billed to Buyer and Zoobis will retain all such proceeds.

D. Purchaser Data/Use of Opt-Outs

1. Each of User and Zoobis has rights in the personally identifiable information with respect to persons who actually purchased tickets to User's Events through Zoobis ("Purchaser Data"), subject to the terms hereof. Zoobis will solely retain rights in any other data that is collected by Zoobis by any means regardless of whether such data is redundant of Purchaser Data. Zoobis takes seriously its efforts to ensure the privacy rights of ticket purchasers. User therefore agrees to use the Purchaser Data only in compliance with all applicable laws and administrative rulings and in accordance with User's own posted privacy policies. Zoobis also requires that User include in any email communications that User may make based on the Purchaser Data a mechanism to provide the recipient with the right to "opt-out" from receiving further communications from User and that User honor such opt-out preferences.

E. Intellectual Property

1. Zoobis System: Zoobis owns all proprietary rights in and to the Zoobis System, including patent, copyright, trade secret, trademark, and other proprietary rights, including but not limited to the ticketing software, and any corrections, bug fixes, enhancements, updates or other modifications, including custom modifications, whether made by Zoobis or any other party (collectively, "Zoobis's Proprietary Rights"). User agrees that it will not take, or permit any other person or entity to take, any action that would jeopardize or otherwise be contrary to Zoobis's Proprietary Rights, including but not limited to disassembling, cloning, decompiling, altering or reverse engineering.
2. Brands: Except as otherwise provided, each Party owns all proprietary rights, including without limitation trademark rights, in their respective brands. Each Party agrees that, except as otherwise expressly permitted in this Agreement, it will not to take any action that would infringe, dilute or conflict with the other Party's ownership rights in its brands. Each Party grants the other Party the non-exclusive right to use the other's logos, trademarks and other branding for the purposes of promoting the services enumerated in this Agreement.

F. Settlement

1. Zoobis shall collect all proceeds from Ticket sales, deposit them in an account maintained by Zoobis and remit the portion of such proceeds due to User less the amounts to which Zoobis is entitled pursuant to this Agreement.
2. Payment shall be made by cheque payable only to User's name as set forth in this Agreement. Payment shall be sent via Canada Post every Thursday, for all Events occurring on or before the Monday during that same week.
3. A printed statement summarizing all account activity during the Settlement period shall accompany each payment. No statement or payment shall be issued if Events did not occur during Settlement period.
4. It is agreed and understood that Zoobis shall not be liable to User for the printing and sale of counterfeit Tickets.
5. For more information on our collection and dispersment terms please see our Payment Collection & Disbursement Policy.

G. Amendments/Entire Agreement

1. This Agreement shall not be changed, modified or amended in any respect without the mutual written consent of both User and Zoobis. This Agreement contains the entire understanding between the Parties and supersedes all prior negotiations, representations, understandings or agreements.

H. Applicable Law and Jurisdiction

1. This Agreement shall be interpreted and governed by the laws of the [Province of Ontario without reference to conflict of laws principles. Each of the Parties agrees that the courts that are located in the Province of Ontario shall have subject matter jurisdiction hereunder and person jurisdiction over each of the Parties. Each such Party hereby consents thereto, and hereby waives any right it may have to assert the doctrine of forum non conveniens or to object to venue to the extent that any proceeding is conducted in accordance with the foregoing provision.

I. Binding Effect and Assignment

1. The terms, conditions, provisions and undertakings contained in this Agreement shall be binding upon and inure to the benefit of each of the Parties and their respective successors and assigns.
2. This Agreement may not be assigned by User without the prior written consent of Zoobis.

J. Representations and Warranties

1. Each Party represents, warrants and covenants to the other that:
   1. It is duly organized and in good standing under the laws of its jurisdiction of organization and has the requisite power to enter into and perform this Agreement;
   2. This Agreement has been duly authorized, executed and delivered by it and constitutes a valid, legal and binding agreement, enforceable in accordance with its terms;
   3. The entering into and performance of this Agreement will not violate any judgment, order, law, regulation or agreement applicable to such Party or any provision of such Party's charter or bylaws, or violate the rights of any third party, or result in any breach of, or constitute a default under, any other agreement to which they are a party, including, without limitation, any agreement of User's for the sale or other disposition of Tickets for an Event;
   4. The individual executing this Agreement, and whose signature appears below is empowered to execute this Agreement.
2. Zoobis represents, warrants and covenants to User that:
   1. Zoobis owns or has sufficient license rights in the Zoobis System to perform its obligations hereunder;
   2. The operation of the Zoobis System will be undertaken in a manner reasonably adequate for the performance of Zoobis's obligations under this Agreement. Neither occasional short term interruptions of service, which are not unreasonable under comparable industry standards, nor interruptions of service resulting from events or circumstances beyond Zoobis's reasonable control, shall be cause for any liability or claim against Zoobis hereunder, nor shall any such occasion render Zoobis in default under this Agreement.
3. User represents, warrants and covenants to Zoobis that:
   1. User is an agent of each Venue at which any of its Events are held and is duly authorized in such capacity to execute and deliver this Agreement for ticketing services and/or software licensing and to schedule and present Events at the Venue;
   2. There is no existing exclusive agreement of understanding between User, and/or the Venue or the Venue's owner or operators and any third party respecting the sale of Tickets for any Event held at the Venue that would invalidate this Agreement;
   3. The number of Tickets put on sale for each Event does not and will not exceed legal, fire, or other restrictions of the Venue or of governmental agencies or laws.
   4. User has and will comply with all municipal, provincial and federal laws, ordinances, and regulations of relevance with respect to its Events, including but not limited to those relating to the sale or distribution of beverage alcohol.

K. Limitation of Liability

1. IN NO EVENT SHALL ZOOBIS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE, ARISING OUT OF THIS AGREEMENT OR ANY CONFIDENTIAL INFORMATION, EVEN IF ZOOBIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Notwithstanding anything in this Agreement to the contrary, Zoobis's aggregate liability arising under or with respect to this Agreement or the subject matter hereof shall in no event exceed the total fees paid by User to Zoobis under this Agreement.

L. Severability

1. If one or more provisions of this Agreement are held by a court of law to be invalid or unenforceable, such provisions or portions thereof shall be severed herefrom. The balance of this Agreement shall remain intact in accordance with its terms.

M. Indemnity

1. User shall indemnify Zoobis and its successors, assigns, officers, directors, employees and agents ("Zoobis's Indemnitees") against and hold harmless from, any and all claims, damages, actions, losses, liabilities, costs and expenses, foreseen or unforeseen, of any kind, including lawyers' fees ("Damages"), imposed on, incurred by, or asserted against Zoobis's Indemnitees occurring as a result of, or in connection with, a) any Event of Default under this Agreement by User; b) any Event held or scheduled to be held at the Venue; c) any use of the Zoobis System d) User's use of the Buyer's profile information, except to the extent that any such claim relates to Zoobis's gross negligence or willful misconduct with respect thereto or e) the failure of User to comply with laws, ordinances or regulations in respect of the sale or distribution of beverage alcohol at or in connection with its Events;
2. Zoobis shall indemnify User and its successors, assigns, officers, directors, employees and agents ("User's Indemnitees") against and hold harmless from, any and all Damages, imposed on, incurred by, or asserted against User's Indemnitees occurring as a result of, or in connection with, a) any Event of Default under this Agreement by Zoobis; or b) any alleged patent, trademark or copyright infringement asserted against User's Indemnitees with respect to User's authorized use of the Zoobis System, except to the extent any such claim relates to User's gross negligence or willful misconduct with respect thereto.

N. Confidentiality

1. The Parties hereby acknowledge that, in the course of exercising their respective rights or carrying out their respective duties described in this Agreement, either may come into possession of certain confidential information about the other in which the other has a proprietary interest. The Parties hereby agree that such confidential information, which shall include the terms of this Agreement, shall be maintained by the Parties on a confidential basis and shall not be disclosed to any third party without the prior written consent of each other party, except as required by law or a court order of competent jurisdiction.

O. Fax; Counterparts

1. This Agreement may be executed by fax and in one or more counterparts, each of which shall be deemed to constitute an original for all purposes.

P. Termination

1. This Agreement may be terminated by either Party in the event of any material default in or material breach of the terms and conditions of this Agreement by the other Party, after the other Party has received written notice of default and thirty (30) business days (or ten (10) business days, in the case of a monetary default) to cure such default (each such occurrence, after the expiration of such cure period, shall be an "Event of Default"); or the filing of any voluntary or involuntary petition against the other Party under the bankruptcy or insolvency laws of any applicable jurisdiction, which petition is not dismissed within sixty (60) days of filing, or upon any appointment of a receiver for all or any portion of the other Party's business, or any assignment of all or substantially all of the assets of such other Party for the benefit of creditors.
2. This Agreement may be terminated by Zoobis in the event any act by User threatens to cause any infringement of any Zoobis (or Zoobis licensor) intellectual property or other property right, including without limitation, any copyright, license right or trade secret right, and User fails to refrain from so acting within five (5) business days' written notice from Zoobis.
3. Upon the effective date of any termination or expiration of this Agreement, provisions regarding ownership of intellectual property rights, representations and warranties, confidentiality, indemnification, limitation of liability, jurisdiction and resolution of disputes shall remain in full force and effect; each Party shall immediately cease the use of the other Party's intellectual property; and each Party shall return, or at the other Party's request, destroy all copies of Confidential Information, and all other property belonging to and/or received from the other Party.

Q. Relationship of the Parties

1. Each Party is an independent contractor and not an agent or partner of, or joint-venturer with, the other Party for any purpose other than as set forth in this Agreement (e.g., Zoobis is the agent of User with respect to Ticket sales and distribution). Neither Party by virtue of this Agreement shall have any right, power, or authority to act or create any obligation, express or implied, on behalf of the other Party.

R. Delays

1. Neither Party shall be liable or deemed in default, and no Event of Default shall be deemed to have occurred, as a result of any delay or failure in performance of this Agreement resulting directly or indirectly from any cause completely, solely and exclusively beyond the control of that Party, but only for so long as such delay shall continue to prevent performance.

S. Notices

1. Any notices required to be given under this Agreement must be sent to each Party, in writing, at the address set forth immediately below the signature line hereto or at such address as may be provided by each Party in writing from time to time, by certified or registered mail, return receipt requested or by an overnight courier. Notices will be deemed effective the day following sending if sent by overnight courier or five days after sending if sent by certified or registered mail.

T. Binding Agreement

1. The terms, conditions, provisions and undertakings of this Agreement shall be binding upon and inure to the benefit of each of the Parties and their respective successors and permitted assigns; provided, however, that this Agreement shall not be binding until executed by each of the Parties.

U. Legal Review

1. Each of the Parties has had the opportunity to have its legal counsel review this Agreement on its behalf. If an ambiguity or question of intent arises with respect to any provision of this Agreement, this Agreement will be construed as if drafted jointly by the Parties. The Parties expressly agree that the construction and interpretation of this Agreement shall not be strictly construed against the drafter.

V. GST

1. All fees and charges indicated in this Agreement are exclusive of GST, for events organized within Canada, unless otherwise specifically noted.

W. Further Understandings

1. Unless explicitly stated otherwise, any new features that augment or enhance the Service, shall be subject to out terms of use. You understand and agree that the Service is provided AS-IS and that Zoobis assumes no responsibility for the timeliness, deletion, mis-delivery or failure to store any user communications or personalization settings.