Version October 2021
Article 1 - Definitions
In these general terms and conditions, the following definitions apply:
Fairtix: trade name of Upways B.V., having its registered office and principal place of business at Spoorstraat 153, 6591 GT Gennep;
Client: the other party, acting in the course of a profession or business, in its capacity as user of the services or goods supplied by or on behalf of Fairtix
Ticketshop: the online system developed by Fairtix for the purchase, processing and settlement of Tickets, including updates to this system;
Agreement: any written agreement concluded between the Customer and Fairtix concerning the use of the Ticketshop as well as all (legal) acts in preparation for and during the execution of that agreement
Order: the order given by the Client to Fairtix with regard to the use of the Ticketshop;
General Terms and Conditions: the general terms and conditions of Fairtix that apply to the Order and/or the Contract and which the Client declares to have received, read and accepted;
Event: an event organised by the Organiser, including but not limited to performances of an artistic nature, music, theatre and musical performances, concerts and exhibitions, all in the broadest sense of the word;
Ticket(s): the admission ticket to an event organised by or on behalf of the Principal that is sold to the User by the Principal through the Ticketshop;
User: the natural and/or legal person who buys a Ticket from the Client using the Ticketshop for an event organised by or on behalf of the Client
Parties: Fairtix and the Customer, each to be referred to separately as Party.
Foundation: the Pay.nl Foundation Derdengelden, with offices at Kopersteden 10, 7547 TK Enschede. The Foundation Derdengelden Pay.nl receives and manages the funds received on behalf of Fairtix. Stichting Derdengelden Pay.nl is affiliated as a third-party funds entity with Tintel B.V. and is therefore involved by the Dutch Central Bank in its supervision;
Merchandising: the sale of additional products or services by Fairtix on its own behalf or on behalf of third parties;
Article 2 - Applicability of General Terms and Conditions
2.1 These General Terms and Conditions apply unconditionally and exclusively to all offers made by and agreements concluded with Fairtix. Parties can only deviate from these general terms and conditions explicitly and in writing or by e-mail.
2.2 General terms and conditions of the Client are explicitly rejected. This is only different if it has been agreed in writing or by e-mail between the parties that the Client's general terms and conditions shall apply to the concluded Agreement to the exclusion of those of Fairtix. A mere stipulation in the Client's general terms and conditions that his own terms and conditions are applicable shall not suffice.
Article 3 - Quotations; realization and alteration of the Agreement
3.1 All offers made by Fairtix are without obligation and should be considered as an invitation to enter into negotiations for the conclusion of an Agreement. An offer remains valid for the period stated in the quotation or verbal offer. No rights can be derived from such an offer after this period. An Agreement is not concluded until Fairtix has confirmed to the Client, in writing or by e-mail, the order given to Fairtix or at the time Fairtix has commenced with the execution of the Agreement.
Until then, Fairtix is fully entitled to withdraw an offer and to refuse an order without giving reasons. In such a case Fairtix shall not be liable for any loss on the part of the Client.
3.2 Amendments to a concluded Agreement are only valid if confirmed by Fairtix in writing or by e-mail. This applies both to changes in the content of the services to be provided and to changes in price.
3.3 An Agreement shall furthermore be realised by the actual use of the Ticketshop by the Client.
3.4 The Client can never derive any rights from an offer by Fairtix that is based on incorrect or incomplete information provided by the Client.
3.5 If the Client concludes the Agreement on behalf of or for the account of another natural person or legal entity, he declares, by signing the Agreement, that he is authorised to do so. Together with this (legal) person, Client is severally liable for all obligations resulting from the Agreement.
3.6 Fairtix shall at all times be authorized to have the Agreement performed by third parties.
3.7 Fairtix has the right to increase the agreed price of a service prior to delivery, if changes should occur in the period between the conclusion of the Agreement and the actual delivery. In that case, Client has the possibility to cancel the order or assignment within 48 hours after notification of the price change. If Customer does not make use of this possibility to cancel, Customer (tacitly) agrees with the price change.
3.8 Images and descriptions in catalogues, brochures and other promotional materials, as well as descriptive data, etc. are only indicative and do not bind Fairtix. Obvious mistakes or errors in quotations, as well as minor deviations of the products supplied from the offers made, shall not bind Fairtix and shall not entitle the Client to dissolution and/or damages.
Article 4 - Prices and payment
4.1 The Client shall pay the prices stated in the order confirmation or Agreement for the execution of the agreed services. All prices quoted by Fairtix are in euros and exclusive of VAT.
4.2 The Client gives permission in advance to set off the amounts owed to Fairtix against the amounts received from each User by the Foundation on behalf of Fairtix, so that Fairtix is entitled to proceed to set off. After settlement, the amounts received via the Foundation will be transferred to the Client's bank account on the first Tuesday after the end of the event organized by the Client, as well as the accrued ticket fees.
4.3 The Client guarantees Fairtix and the Foundation that the legal relationship between the Client and the User explicitly permits that payments made by Users for Tickets and merchandising can and may be received via the Foundation's bank account. The Customer is obliged to inform a (potential) User in a legally valid and conclusive manner about the manner in which the User - through the Ticketshop and the Foundation - makes payments to the Customer, without any contractual relationship arising between Fairtix and/or the Foundation on the one hand and the User on the other.
4.4 Complaints concerning the level of the offset amount and/or the quality of the service(s) provided must be made to the Client within 30 days of the payment of the balance after offset, in the absence of which the Client shall be deemed to have agreed with (the correctness of) the offset amount.
4.5 An extract from the administration of Fairtix shall serve as complete proof vis-à-vis the Client, unless the latter provides evidence to the contrary. Fairtix is not obliged to keep its records for a period longer than the statutory retention periods.
Article 5 - Ticketshop
5.1 Fairtix has developed the Ticketshop and makes it available to the Customer for the sale of Tickets and merchandising to Users. In doing so, Fairtix acts as an intermediary in the sense of Article 7:425 of the Netherlands Civil Code. Fairtix shall explicitly not be a party to any agreements concluded between the Client and Users as a result of the actions of Fairtix. After the conclusion of the agreement between the Client and the User, Fairtix will provide the User with one or more Tickets, depending on the agreement.
5.2 Fairtix shall grant the Customer access to the use of the Ticketshop if and to the extent necessary for the performance of the obligations contained in the Agreement.
5.3 Fairtix may make new and improved versions of the Ticketshop available to the Customer during the term of the Agreement; however, this is a choice made by Fairtix and not a right of the Customer.
5.4 Delivery of services shall, in principle, take place within the agreed upon term. Any delivery time stated by Fairtix is at all times indicative and cannot be considered as a deadline, unless the parties have expressly agreed otherwise. Fairtix shall not be in default until it has been put in default in writing by the Client and the Client has granted Fairtix a reasonable term to fulfil its obligations and the latter has failed to fulfil its obligations within this reasonable term.
Article 6 - Obligation to provide information during the Agreement
6.1 Following a written request by the Client, Fairtix is obliged within reasonable limits to provide an overview of all tickets sold and all pending applications from Users. If the Customer so requests in writing, Fairtix shall also provide access to each individual transaction.
6.2 All communication between the parties shall take place digitally, i.e. by e-mail or via the secure part of the Fairtix website, or by telephone.
Article 7 - Privacy and personal data
7.1 The Client is obliged to inform the User about the rules relating to the processing of personal data and privacy, in the broadest sense of the word, and indemnifies Fairtix against any claims by the User in this respect.
7.2 Fairtix is authorized to make the personal data and preferences of the User available to the latter, insofar as he/she has given his/her permission for this, in accordance with the applicable rules. Fairtix is also entitled to inspect these data itself in order to improve its products and services.
7.3 Fairtix shall make every reasonable effort to secure its systems against loss, theft and/or unlawful use of privacy and personal data. Fairtix will ensure that privacy and personal data are protected to the best of its ability. Fairtix shall not be liable for any unlawful acts committed by third parties with respect to these data. The Client indemnifies Fairtix for any claims by the User with respect to such unlawful infringements by third parties.
Article 8 - Intellectual property
8.1 Copyright, trade name, logo and any other intellectual or industrial property rights, as well as similar rights to protect information relating to the Ticketshop (including standard adjustments and new versions, as well as adjustments made at the request or specification of the Client), databases, documentation or materials belong exclusively to Fairtix. Nothing in the Agreement shall transfer such rights in whole or in part.
8.2 The Client shall respect the trade name, trademark or any other intellectual property right of Upways and shall not, without the express written consent of Upways, use the name of Fairtix in any sense whatsoever, nor use the name of Fairtix without the consent of Upways, with the intention of relating any goods or services, other than those of Upways itself, directly or indirectly to Fairtix.
8.3 The Customer is prohibited from selling, or otherwise using for commercial purposes other than those agreed, or making available to third parties, Faritx and other intellectual property rights of Upways without the prior written consent of Upways.
Article 9 - Indemnification
9.1 The Client shall indemnify Fairtix against any claims from third parties for damages caused by the provision of incorrect or incomplete information by the Client.
9.2 The Client shall indemnify Fairtix at first request should Fairtix be held liable, in any sense whatsoever, by or on behalf of a User with respect to the content and/or proper fulfilment of the agreement(s) entered into between the Client and the User, for instance in the case of cancellations, as well as the related communication from the Client to the User, or any other possible form of breach and/or unlawful act on the part of the Client vis-à-vis the User.
9.3 The Client is liable for all judicial and extrajudicial costs incurred by Fairtix in connection with disputes, of any nature whatsoever, arising between the User and the Client.
9.4 The Client indemnifies Fairtix from any liability when organizing an (online) event that includes a game of chance (e.g. Bingo or Lottery) whereby use is made of the Fairtix ticket software. Client is at all times responsible and liable for compliance with the Dutch law, as prescribed by the Dutch Gaming Authority.
Article 10 - Liability
10.1 The Client shall at all times be deemed to be acting within the scope of his profession or business.
10.2 Fairtix's liability for (direct) damage sustained by the Client shall, irrespective of the legal ground on which the claim is based, be limited at all times to a maximum of the insurance coverage, or, as the case may be, to a maximum of the invoice amount that Fairtix has charged the Client for the event in question if, for whatever reason, the damage is not covered by any insurance taken out by Fairtix.
10.3 Fairtix shall not be liable for any indirect or consequential loss, including but not limited to loss of profits (stagnation of production, loss of profit, etc.), other indirect loss and loss as a result of liability towards third parties. Also in case of force majeure Fairtix shall never be liable for any shortcoming on its part and the damaging consequences thereof.
10.4 Fairtix shall not be liable for any loss of the Client, in whatever form, due to a loss of control over the monies Fairtix receives, or should receive, from the Foundation, unless any mandatory statutory provision dictates otherwise.
10.5 Fairtix shall not be liable for any damage directly or indirectly resulting from failure or maintenance of its computers or (electronic) systems.
10.6 Fairtix shall not be liable for damage resulting directly or indirectly from forged Tickets by Users or third parties or from any other form of misuse or unlawful use of Tickets by Users or third parties.
10.7 The above limitations of liability have also been stipulated for the benefit of third parties engaged by Fairtix, who may therefore invoke these limitations of liability.
Article 11 - Force Majeure
11.1 Force majeure is understood to mean: circumstances and/or factors beyond Fairtix's control and not reasonably attributable to it, as a result of which Fairtix cannot reasonably be required to fulfil the Agreement (any further).
11.2 Force majeure includes, in any case, the destruction, in whatever way, of the servers, back-ups and other equipment used by Fairtix, breakdowns in telephone and internet traffic, government measures that impede performance, seizure, breakdown of electricity, computer failures, strikes, pandemics, special accidents and, furthermore, any circumstance and/or factor that Fairtix could not reasonably have foreseen and on which it could not have exerted any influence.
11.3 In addition to the provisions of article 10 with regard to liability, Fairtix shall be entitled in the event of force majeure to suspend its obligations or to dissolve the Agreement, wholly or partially. In that case, Fairtix shall only be obliged to cooperate in the undoing of any performances already rendered and shall never be liable for any damage on the part of the Client.
Article 12 - Suspension and dissolution, end of the Agreement
12.1 Fairtix is authorized to suspend the execution of its obligations under the Agreement or, at least, to dissolve the Agreement extrajudicially, either in writing or by e-mail, if Client is granted a provisional suspension of payments or if Client is declared bankrupt, or if there are indications that such a situation is imminent. The aforementioned authority also exists in the event of seizure or if Client loses the authority to dispose of his assets in any other way. In these cases, Fairtix shall never be held to pay any compensation for damages.
12.2 The foregoing shall not affect the authority of the Parties to suspend the performance of their obligations under the Agreement, or at least to dissolve the Agreement with immediate effect and to claim damages, if the other party fails imputably in the performance of its obligations under the Agreement and/or these General Conditions, and this failure is serious enough to justify dissolution. Such a serious breach includes, but is not limited to, use of the Ticketshop by the Client for a purpose other than that for which Fairtix made the Ticketshop available as well as the making of unauthorised changes to the Ticketshop by or on behalf of the Client, or if the Customer uses the Ticketshop directly or indirectly to conclude contracts with Users that are contrary to the law, public decency or public order in terms of content or tenor and/or contracts that can be qualified as offensive or fraudulent in terms of content or tenor, which is exclusively at the discretion of Fairtix. The invocation of this extrajudicial dissolution must take place in writing or by e-mail.
12.3 In the event of premature dissolution of the Agreement by means of an extrajudicial declaration by Fairtix as referred to in articles 12.1 and 12.2, Fairtix shall, in any event, be entitled to compensation for the loss it has suffered at that time, without prejudice to Fairtix's claims in respect of payment obligations of the Client which had already arisen but remained unpaid.
Article 13 - Miscellaneous
13.1 Insofar as, despite the provisions of Article 10, the Client is to be considered a natural person, the Client hereby authorises Fairtix to include, or have included, its personal data in a file as referred to in chapter 1, article 4, section 6 of the General Data Protection Regulation, and to process, or have processed, its personal data.
13.2 In the event that two or more persons are Client together or become Client by any cause whatsoever (succession or otherwise), each of these persons shall be jointly and severally liable for all performances owed by Client and the Clients shall jointly have one claim against Fairtix for all performances owed by Fairtix.
13.3 The Client undertakes to notify Fairtix forthwith of any seizure of Client's movable or immovable property or of the movable property leased to him or any part thereof. Furthermore, Client undertakes to notify Fairtix immediately of his bankruptcy petition, of his application for a suspension of payment, of his request or the request made by the Mayor and Aldermen of his place of residence to pronounce the application of the debt rescheduling arrangement with respect to him and of his intention to leave the Netherlands to live abroad. Client also undertakes, in the aforementioned cases, to immediately inform the bailiff carrying out the attachment, the receiver, or the administrator, respectively, of the Agreement with Fairtix and to allow them to inspect it.
13.4 Without the prior written permission of Fairtix, the Client is not permitted to transfer rights and/or obligations under the Agreement with Fairtix to third parties.
13.5 Any right of action and/or defence against Fairtix lapses by the mere expiry of one year after it arose.
13.6 Any legal claims must be instituted by both Fairtix and the Client, on pain of forfeiture, within one year of the expiry of the Agreement.
Article 14 - Disputes: applicable law and choice of forum
14.1 All agreements concluded with Fairtix shall be governed by Dutch law. The relatively competent judge of the Roermond District Court shall have exclusive jurisdiction to hear disputes between the parties relating to these agreements and/or these General Terms and Conditions. Parties can decide in mutual consultation to bypass the civil court and to agree on another form of dispute resolution (arbitration or mediation).