Exhibit 1: Fairtix Terms & Conditions for the Procurement of SaaS-services
Last updated: 16 november 2023
Article 1 - Definitions
1.1. In addition to terms defined elsewhere in these SaaS Terms and Conditions, the following terms will have the meaning set out below:
a) Agreement: the agreement between Fairtix and the Client, including its appendices, which is entered into as set forth in Article 2.
b) Client: an entity or an individual identified that enters into the Agreement with Fairtix.
c) Event: an event organised by the Client or 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.
d) Fairtix: Upways B.V., having its registered office and principal place of business at Spoorstraat 153, 6591 GT Gennep, the Netherlands, registered with the Chamber of Commerce under number 77888286, also acting under the tradename ‘Fairtix’.
e) Foundation: Tintel B.V., acting under the tradename ‘Pay.nl’, with offices at Curieweg 19, 3208 KJ Spijkenisse., the Netherlands. The Foundation receives and manages the funds received on behalf of Fairtix.
f) Order: the order(s) under the Agreement placed by electronic or paper means.
g) Parties: Fairtix and the Client, each to be referred to separately as Party.
h) SaaS-service(s) or Software as a Service: the (part of the) Services that entail providing access to the Ticketshop over the internet in whole or in substantial part in an automated manner.
i) SaaS Terms and Conditions: the terms and conditions of Fairtix for the provision of SaaS-services that apply to the Agreement and which the Client declares to have received, read and accepted.
j) Services: all services, such as SaaS-services, support and maintenance services and other services provided by Fairtix to Client.
k) Ticket(s): the admission ticket to an Event, which may include related items such as merchandise and/or consumptions, organised by or on behalf of the Client that is sold to the User through the Ticketshop.
l) Ticketshop: the online system developed by Fairtix for the purchase, processing and settlement of Tickets, including updates to this system.
m) User: the natural and/or legal person who buys a Ticket for an Event using the Ticketshop.
n) User Data: any personal data provided by the User or the Client to Fairtix and/or Client’s personal data accessed or used by Fairtix or transmitted by Client to Fairtix in connection with Fairtix’s provision of the Services, including but not limited to, Client’s personal data included in any summaries, analyses or reports generated in connection with the Services.
Article 2 - SaaS Terms and Conditions
2.1. These SaaS Terms and Conditions apply to all requests and offers made by and Agreements for the supply of Services concluded with Fairtix. Unless explicitly agreed otherwise in the Order, these SaaS Terms and Conditions shall take precedence over any other communication, offer, or agreement (oral or in writing) between the Parties relating to the subject matter hereof.
2.2. Any amendment, waiver or variation of these SaaS Terms and Conditions shall not be binding on the Parties unless set out in writing, expressed to amend this SaaS Terms and Conditions and signed by a duly authorized representative of each Party.
2.3. Any alternative terms and conditions or any conditions required by the Client are explicitly rejected and shall only be binding if they have been expressly accepted by Fairtix in writing.
2.4. The invalidity, illegality or unenforceability of any of the provisions in these SaaS Terms and Conditions in any jurisdiction shall not affect the validity, legality and enforceability of the remaining provisions of these SaaS Terms and Conditions.
Article 3 - Formation 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 case, Fairtix shall not be liable for any loss on the part of the Client.
3.2. The Client can never derive any rights from an offer by Fairtix that is based on incorrect or incomplete information provided by the Client.
3.3. 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 termination and/or damages. All materials mentioned under this section 3.3 provided by Fairtix to the Client shall be considered confidential. The Client will hold such materials in strict confidence and will not disclose confidential information to any third party.
Article 4 - Events
4.1. Fairtix has developed the Ticketshop and makes it available to the Client for the sale of Tickets to Users. In doing so, Fairtix acts as an intermediary in the sense of Article 7:425 of the Dutch Civil Code for the sale of the Tickets. Fairtix shall 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 an agreement between the Client and the User, Fairtix will provide the User with one or more Tickets, depending on the agreement. Fairtix will enter into a direct contractual relationship with the User for the provision of the intermediary services.
4.2. Fairtix shall not be a party to any agreements concluded between the Client and Users. The Client is fully responsible and liable towards the User or any third party with respect to the Event, including the (artistic) quality and content of the Event and the state of affairs in or around the Event, including the availability of internet. In addition to Article 11 (Indemnification), the Client shall indemnify and hold harmless Fairtix against any claim and related costs and damages brought by a User or third party with respect to the Event or damage suffered by the User resulting from the use, non-usage or transfer of a Ticket.
Article 5 - Services
5.1. Fairtix will put in reasonable commercial efforts to provide the SaaS-service to the Client in the manner described in Annex 1 (Description of the SaaS-service).
5.2. During the term of the Agreement, Fairtix grants Client a non-exclusive right to access and use the SaaS-service from any Client location and to offer the Ticketshop to its Users.
5.3. If and to the extent as part of the SaaS-service, Fairtix makes available to Client the (access to) third-party software, the (licence) terms and conditions such third party will apply to that software and will in relation to such software set aside any conflicting provisions thereto of these SaaS Terms and Conditions.
5.4. The access or identification codes and certificates issued to the Client by or on behalf of Fairtix are confidential and will be treated as such by the Client and will only be made known to authorised personnel from the Client’s own organisation or a third party on a need-to-know basis and to the extent as is strictly necessary for executing the Event. Fairtix is entitled to change the assigned access or identification codes and certificates. Fairtix is not responsible or liable for damages or losses resulting from the use or misuse of access or identification codes or certificates, unless the misuse is the direct result of the wilful intent or conscious recklessness by Fairtix’s managerial staff.
5.5. Fairtix may make changes to the content or scope of the SaaS-service or continue the performance of the SaaS-service using a new, modified and/or further developed version of the Ticketshop; however, this is a choice made by Fairtix and not a right of the Client. If changes result in a substantial change in the functionality of the Ticketshop, Fairtix will inform Client within a reasonable term.
5.6. 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 - Support and Maintenance
6.1. Fairtix may from time to time provide support services to Client, on the basis of an efforts obligation. Furthermore, Fairtix may from time to time release updates in connection with the maintenance of or the optimization of the Ticketshop. Fairtix strives to inform the Client as much as possible prior to the release of updates if its release could lead to planned outage.
6.2. If Fairtix releases a new version, the Agreement will also apply to that new version.
Article 7 - Service Levels
7.1. Unless agreed otherwise, Fairtix will put in commercial reasonabl n e efforts to make the SaaS-service available to the Client and the Users during and outside office hours, however no degree of availability can be guaranteed.
7.2. Work on the Ticketshop will be carried out outside office hours as much as possible. Fairtix will strive to inform Client about planned unavailability up front.
7.3. Fairtix may provide the Client with information about the Ticketshop and/or SaaS-service by sending general notifications, for example with regard to new releases or upgrades.
7.4. Fairtix does not warrant that the Ticketshop or the SaaS-service is without faults and will operate at all times without interruptions. Fairtix will perform reasonable efforts to repair defects in the software within a reasonable term if and insofar it concerns software that was developed by Fairtix and if the Client has notified Fairtix of the defect in detail and in writing, whereby Fairtix shall be entitled to postpone the repair of the defects until a new version of the software is taken into use and that Fairtix is entitled to apply temporary solutions, program bypasses or problem-avoiding restrictions to the software.
Article 8 - Prices Payment
8.1. The Client shall pay the prices per User stated in the Order for the SaaS-services based on the actual use. The actual number of Users shall be calculated based on the number of transactions and shall not be linked to the number of unique, named, individual users.
8.2. 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 at the time and frequency indicated in the Order or otherwise agreed in writing between Parties. These amounts shall not be due to the Client nor shall Fairtix be obligated to transfer these fees until the Client has successfully completed the onboarding process with the Foundation.
8.3. The Client must complete the onboarding process with the Foundation and is responsible to keep the company information in the Foundation system up to date at all times.
8.4. In addition to the option to set off the payments as described in section 8.2, Fairtix may invoice the owed amounts to the Client directly.
8.5. Charges for other Services shall be agreed in the Order and separately invoiced.
8.6. All invoiced amounts shall be payable within thirty (30) days from the invoice date.
8.7. All prices quoted by Fairtix are in euros and exclusive of VAT.
8.8. Charges may be increased by Fairtix no more than once per year and not by more than the applicable CPI-percentage over the preceding year. The “CPI” means the Consumer Price Index in the relevant jurisdiction, which for the Netherlands is the index published by Statistics Netherlands (‘CBS”) (2015 = 100). Fairtix will provide the Client prior notice of the price adjustment.
8.9. The Client may select the payment methods available to the User when purchasing a Ticket. Depending on the chosen payment method, payment costs can be charged to the User by the Client.
8.10. The Client guarantees that the legal relationship between the Client and the User explicitly permits that payments made by Users for Tickets can and may be received via the Foundation’s bank account. The Client 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 Client, without any contractual relationship arising between Fairtix and/or the Foundation on the one hand and the User on the other for the Event.
8.11. Complaints concerning the level of the offset amount and/or the quality of the service(s) provided must be made to Fairtix 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.
8.12. 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.
8.13. In addition to any other rights Fairtix may have, if any payment or any portion thereof is not paid when due, this shall be deemed a material breach of this Agreement and a late payment charge equal to the applicable Dutch statutory interest rate (article 6:119 of the Dutch Civil Code) of such past due payment may be assessed and shall be immediately payable.
Article 9 - Privacy and personal data
9.1. As between Fairtix and Client, Fairtix is the controller within the meaning of the General Data Protection Regulation (2016/679) for the processing of all personal data, processed in the course of the Agreement and the provision of Services to Client and in the manner described in Annex 2 (Controller to Controller Terms).
9.2. As between Fairtix and the User, Fairtix processes personal data of Users in the course of the provision of the intermediary service and acts as a controller for the processing of this User data.
9.3. Fairtix collects a core set of personal data (as listed in Appendix A to Annex 2) necessary for the completion of the Ticket purchasing process, marketing purposes and creating a user profile. In addition, the Client has the option to request additional information from the User by creating additional question fields in the Ticketshop, which are subject to approval from Fairtix. Client shall not cause Fairtix to process any special categories of personal data from the User. In addition to Article 11 (Indemnification), Client shall indemnify and hold harmless Fairtix against any claim and related costs and damages by a User or third party with respect to the processing of the additional information collected at the request and on the behalf of the Client.
Article 10 - Intellectual Property
10.1. Fairtix or its licensors own and retain all right, title and interest in the Ticketshop, Services, the documentation and any and all new versions and releases and other corrections, enhancements, derivative works, updates or other modifications thereto, including all patents, trademarks, copyrights, trade secrets and other intellectual property rights therein. Nothing in these SaaS Terms and Conditions or the Agreement will transfer or convey to Client or any third party, any such right, title or interest in or to the materials, but only a limited right of use as granted in and revocable in accordance with these SaaS Terms and Conditions.
10.2. The Client acknowledges and agrees that Fairtix is the owner of all right, title and interest in all intellectual property rights in any work, including, but not limited to, all inventions, methods, processes, and computer programs including any source code or object code, (and any enhancements and modifications made thereto) contained within the Services and/or Ticketshop, developed by Fairtix in connection with the performance of the Services hereunder and/or of general applicability across Fairtix’s customer base, and the Client hereby assigns to Fairtix all right, title and interest in and to any copyrights that the Client may have in and to such works; provided, however, that such works shall not include Client data or other information belonging, referencing, identifying or pertaining to the Client.
10.3. The Client shall respect the tradename, trademark or any other intellectual property right of Fairtix and shall not, without the express written consent of Fairtix, use the name of Fairtix in any sense whatsoever, nor use the name of Fairtix without the consent of Fairtix, with the intention of relating any goods or services, other than those of Fairtix itself, directly or indirectly to Fairtix.
Article 11 - Indemnification
11.1. The Client shall at its own expense, defend or settle any claim, proceedings, action or allegation and indemnify Fairtix against any claims from third parties for damages caused by the provision of incorrect or incomplete information, or infringing or improper content by the Client.
11.2. The Client shall indemnify and hold harmless Fairtix against any claim and related costs and damages brought by third parties 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.
11.3 The Client shall compensate Fairtix for all judicial and extrajudicial costs incurred by Fairtix in connection with disputes, of any nature whatsoever, arising between the User and the Client.
Article 12 - Liability
12.1. Fairtix’s liability for (direct) damage shall, irrespective of the legal ground on which the claim is based, be limited at all times to: (i) the aggregate charges paid by the Client to Fairtix for the event in question and limited to the charges paid in the twelve (12) months preceding the date on which the claim arose, or (ii) to the extent that any of Fairtix’s liability would be met by any of its insurances, then Fairtix’s total liability shall be limited to the extent that such liability is actually met by such insurance.
12.2. Fairtix shall not be liable for any indirect or consequential loss, including but not limited to loss of profits, loss of revenue, loss of income, loss of anticipated savings, loss of opportunity, loss of customers, loss of goodwill and reputational damage, or other indirect loss however caused, arising out of or related to the Agreement, whether such damages were foreseeable, whether under contract, tort (including negligence and strict liability) or any other theory whatsoever and loss as a result of liability towards third parties.
12.3. 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.
12.4. Fairtix shall not be liable for any damage directly or indirectly resulting from failure or maintenance of its computers (electronic) systems and the internet.
12.5. 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.
12.6. 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.
12.7. Nothing in this Agreement shall exclude or limit a Party’s liability for fraud, fraudulent misrepresentation or personal injury or death caused by its negligence.
Article 13 - Term
13.1. Unless specified in the Order, the Agreement commences on the date the Client is provided access to the SaaS-service (which is independent of the moment at which the offer is accepted by the Client) and has an initial term of one (1) year after which it shall be automatically extended with additional terms of one (1) year, unless the Agreement is terminated in accordance with its provisions.
13.2. Either Party may terminate this Agreement (in Dutch: “ontbinden”), in whole or in part, effective immediately, by written notice, if: (a) the other Party has failed to perform a material contractual obligation and such breach is incapable of being remedied; (b) the other Party has failed to perform a material contractual obligation and it is possible to remedy that breach, but the other Party fails to remedy such breach within thirty (30) days of prior written notice requiring them to do so; or (c) if the other Party is subject to an actual or threatened event where the other Party has ceased to exist or has been dissolved; the other Party’s business has been discontinued; or the other Party has been declared bankrupt or has been granted suspension of payments. In the event described under (c) or if there are indications that such a situation is imminent, Fairtix is also authorized to suspend the execution of its obligations under the Agreement, either in writing or by e-mail.
13.3. Failure to timely pay a due and undisputed invoice, the 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 Client 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, will, without limitation, be deemed to be a material breach that is incapable of being remedied.
13.4. In the event of premature termination of the Agreement by Fairtix as referred to in section 13.2 and 13.3, 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.
13.5. Fairtix may terminate the Agreement (in Dutch: “opzeggen”) at any time by giving the Client at least three (3) months’ notice in writing of termination without an obligation to pay compensation for any damage or other costs.
Article 14 - Miscellaneous
14.1. If the Client concludes the Agreement on behalf of or for the account of another natural person or legal entity, he declares, by entering into the Agreement, that he is authorised to do so. Together with this (legal) person, the Client is jointly and severally liable for all obligations resulting from the Agreement.
14.2. The Client undertakes to notify Fairtix as soon as possible of any event or fact that may impact the Client’s ability to comply with its obligations under the Agreement.
14.3. 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.
14.4. Any right of action against Fairtix lapses by the mere expiry of one (1) year after it arose.
Article 15 - Applicable law and choice of forum
15.1. All Agreements concluded with Fairtix and any dispute and obligations arising out of or in connection with it shall be governed by Dutch law, without regard to its choice of law rules.
15.2. Before a dispute will be brought before the competent court, the Parties shall attempt to resolve such dispute by mutual agreement.
15.3. Any dispute that cannot be settled by mutual agreement between the Parties will be brought exclusively to the competent court of the Central Netherlands, location Utrecht, the Netherlands.
Annex 1 - Description of the SaaS-service
Fairtix provides and grants access to its platform to the Client for listing Tickets and/or other products for sale. Fairtix supplies and maintains the (SaaS) software for this purpose. Additionally, Fairtix offers technical support to both the Client and User (the ticket buyer) regarding the use of the software.
Annex 2 - Controller to Controller Terms
Both Parties act as controller when processing personal data in the context of the Agreement and are as such independently obliged to comply with the applicable data protection laws and regulations.
The Parties therefore are not required to conclude an agreement as referred to in Article 26(1) or Article 28(3) of the General Data Protection Regulation (2016/679) (the “GDPR”). Nevertheless, the Parties wish to put in place certain provisions and impose restrictions to protect personal data that they make available to the other Party.
Article 1 - Definitions
1.1 Terms such as ‘controller’, ‘data subject’, ‘personal data’, ‘processing’, ‘processor’, ‘personal data breach’ etc. will have the meaning ascribed to them in de GDPR.
Article 2 - Scope
2.1 These Controller to Controller Terms apply to the processing of personal data which takes place in the context of the Agreement.
2.2 These Controller to Controller Terms apply to the extent that Fairtix collects personal data, provides personal data to the Client and to the extent that the Client processes such personal data, in the course of which both Parties act as controller. A description of the categories of data subjects, the categories of personal data and the purpose for which the personal data are provided is included in Appendix A.
Article 3 - Compliance with data protection law
3.1 Fairtix shall ensure that the obtaining, processing and provision of personal data to the Client is in accordance with the GDPR and other applicable data protection laws.
3.2 The Client shall ensure that the processing of the personal data it obtains from Fairtix is in accordance with the GDPR and other applicable data protection laws.
Article 4 - Purpose limitation
4.1 The Client shall process the personal data in the context of the performance of the Agreement for predefined purposes as included in Appendix A.
Article 5 - Confidentiality
5.1 The Client shall treat the personal data as confidential, unless and only in so far:
(i) it is expressly stipulated otherwise in the Agreement;
(ii) Fairtix has given its consent in a specific case;
(iii) a legal obligation imposes the sharing or disclosure of the personal data.
5.2 The Client shall ensure that its employees and other persons working for it who have access to the personal data in the context of their work are bound by a duty of confidentiality.
Article 6 - Security measures
6.1 Fairtix as well as the Client shall take appropriate technical and organizational measures to secure the personal data against loss or against any form of unlawful processing. These measures shall guarantee an appropriate level of security, in view of the risks involved in the processing and the nature of the data to be protected.
Article 7 – Data breaches
7.1 Fairtix as well as the Client shall promptly notify one another if one of them discovers a personal data breach in respect of which the assistance of the other Party is required. In that case the other Party shall provide the first Party with the required information in order to notify the Data Protection Authority and/or the data subjects of a personal data breach in connection with the processing of the personal data which takes place in the context of the Agreement.
Article 8 - International transfers of personal data
8.1 Unless expressly agreed otherwise between the Parties, the Parties shall only process the personal data within the European Economic Area.
Article 9 - Term
9.1 These Controller to Controller Terms shall remain in force for the duration of the Agreement and as long as the Client still has access to personal data provided by Fairtix after termination of the Agreement.
9.2 These Controller to Controller Terms shall terminate by operation of law when the Client has either returned or destroyed all personal data received from Fairtix.
Appendix A
Categories of data subjects
Description of the data subjects to whom the personal data Fairtix provides to the Client relate:
The User who buys a Ticket using the Ticketshop for an Event organised by or on behalf of the Client and employees of the Client for administrative purposes.
Categories of personal data
Description of the personal data Fairtix provides to the Client:
- Name of the data subject;
- Contact details of the data subject, including address; city, postal code, country, telephone number;
- E-mail address of the data subject;
- IP address of the data subject;
- Date of birth of the data subject;
- Gender of the data subject;
- Special needs of the data subject regarding accessibility
- Time of registration (early bird tickets, regular tickets or waiting list) of the data subject;
- Time of entry of the data subject on which the Ticket is scanned at the Event (scanning time);
- All personal data collected via the entry fields in the Ticketshop determined by the Client (subject to approval of Fairtix).
Purpose for which the personal data are provided
Description of the purpose for which Fairtix provides the personal data to the Client:
- Fairtix provides the personal data to the Client for the purpose of executing the Agreement.
