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Terms of Service Agreement

Use of the Gala Festival Engine service (“Gala”) is subject to the following standard terms and conditions (the “Service Agreement”).

  1. License: Exobi Interactive (“Exobi”) owns the rights to the Gala Festival Engine which is described at the url “www.gala-engine.com” (the “Application”). Exobi hereby grants Client a non-exclusive license to use the Service from Exobi subject to the terms and conditions of this Service Agreement. For the avoidance of doubt, any customization of the Application or other Exobi services not agreed to in writing by both parties, including but not limited to the use of the Service for future festivals, are outside of the scope of this Service Agreement.
  2. Use of Service: The Service may be accessed by any users that Client elects to make the service available to (“End Users”). Client understands and acknowledges that the Service is made available to Client “AS IS” and “AS AVAILABLE”. The Service is provided to Client for your own purposes, and Client’s use of the Service is entirely at your own risk. Exobi reserves the right to modify, suspend or stop the Service (or any part thereof), either temporarily or permanently, at any time, or from time to time, with or without notice to you. The Application and the content and software providing the Service is the property of Exobi and/or its licensors and is protected by U.S. and international intellectual property laws. Accordingly, unless explicitly permitted under this Sercie Agreement, you agree that you will not copy, reproduce, alter, modify, or create derivative works from the Service. You also agree that you will not use any robot, spider, other automated device, or manual process to monitor or copy any content from the Service. Client hereby represents, warrants and agrees that Client will not:
    1. Interfere or attempt to interfere with the proper working of the Service, the Exobi servers or any activity being conducted on the Exobi servers.
    2. Use any software or intellectual property in connection with the Service for which you do not have an appropriate license.
    3. Use the Service to promote, facilitate or permit gambling.
    4. Post, transmit or facilitate illegal activities, including, without limitation, child pornography and libelous, defamatory or otherwise malicious information.
    5. Advocate or facilitate activities that are harmful to any person or entity or discriminatory based on race, sex, religion, nationality, disability, sexual orientation or age.
    6. Impersonate any person or entity or falsely state or otherwise misrepresent your professional or other affiliation with any person or entity or indicate that you are an employee or representative of Exobi or its affiliates for any purpose, including, but not limited to, phishing or pharming.
    7. Post, upload or transmit any content or other material that is fraudulent or violates or infringes the rights of others, including, but not limited to material that violates privacy or publicity rights, or infringes copyright, trademark or other proprietary rights.
    8. Post, upload or transmit any information, software or other material that contains viruses, unauthorized data, malware, Trojan horses, spyware, worms or other harmful or corrupted components.
    9. Violate, misappropriate, or infringe the rights of any third party.
    10. Engage in or facilitate illegal export of any restricted or controlled items, including, without limitation, software, algorithms or data that is subject to export laws or regulations.
  3. Fees:  In consideration of the rights granted to Client herein, you agree to pay to Exobi the Setup Fee.  The Setup Fee shall be due before Client can publish their festival website.  Unless otherwise agreed in writing, Client shall pay to Exobi all fees for Additional Services on a time and materials basis as invoiced by Exobi.  Exobi reserves the right to charge a late fee and/or withhold access to the Services until payment is received.
  4. Client Content:  The Service may offer interactive features that allow Client or any individual, entity or End User that you grant authorization (collectively referred to as “Authorized Users”) to, among other things, customize the Service and by doing so submit or post materials including but not limited to, links, graphics, user interfaces, audio and video clips, editorial content, and scripts (the “Custom Materials”). Client hereby represents, warrants and agrees that any and all Custom Materials submitted or posted by any Authorized User shall be your sole responsibility, shall not infringe or violate the rights of any other party or violate any laws, contribute to or encourage infringing or otherwise unlawful conduct, or otherwise be obscene, objectionable or in poor taste. Client further represents, warrants and agrees that before any Authorized User incorporates any Custom Materials into the Service you shall obtain all necessary rights, licenses or clearances necessary to do so.  Exobi reserves the right to delete, remove and/or edit any Custom Materials at any time in its sole discretion without notice or liability.  Exobi has the right, but not the obligation, to monitor any Custom Materials posted by you or otherwise available on the Service, to investigate any reported or apparent violation of this Service Agreement, and to take any action that the Exobi in its sole discretion deems appropriate.  To the extent permitted by contract and law, Client hereby grants Exobi a non-exclusive and perpetual license to use the Custom Materials and any other Client content incorporated into the Service in connection with the promotion, marketing and sales of the Application to any third party, provided that Exobi shall use its reasonable efforts to keep any information that it deems, in its sole discretion, to be sensitive confidential.
  5. Site Availability: Barring business closure or natural disasters, visitors will always be provided with access to the public-facing pages of the Client’s website which is provided to the Client by Exobi, via the Gala Festival Engine service. Exobi reserves the right, however, to limit access to editing content on the site after the Client’s festival has ended.
  6. Usage Data:  Client hereby authorizes Exobi to collect usage data in connection with the Service including but not limited to, sales data, source address that a page request is coming from, End Users IP address or domain names, the date and time of the page request, the referring web site (if any), the type and version of browser End Users are using, and other metrics associated with the use of the Service (the “Usage Data”).  Exobi may use the Usage Data either alone or in the aggregate to better understand Service usage and may further use the Usage Data in any way it deems necessary to improve the Application.  Exobi may also use the Usage Data in connection with the promotion, marketing and sales of the Application to any third party, provided that Exobi shall use its reasonable efforts to keep any information that it deems, in its sole discretion, to be sensitive confidential.  Exobi hereby agrees to make Usage Data available to Client upon Client’s request.
  7. Ticketing Services and Merchandise Sales Option: In the event that you require Exobi’s ticketing  and/or merchandising services, you will agree to an additional set of Terms and Conditions (the “Ticketing Terms and Conditions”), which are attached at the end of this Service Agreement.
  8. Additional Work:  Unless agreed to in writing by both parties after the execution of this Service Agreement, Exobi shall not perform site maintenance or any customization work (“Additional Services”).  In the event that Client would like Exobi to perform any site maintenance or Additional Services not contemplated herein, Client shall make a written request to Exobi.  If requested by Client, Exobi shall provide an estimate of associated costs prior to commencing work. Otherwise, Client shall be obligated to pay Exobi’s then current hourly fee for all work performed. Exobi will not be responsible for any fixes that are required due to edits by the Client or any Authorized User. Any such fixes will be considered Additional Services and will incur charges accordingly.
  9. NO WARRANTY:  EXOBI DISCLAIMS ANY AND ALL WARRANTIES AND REPRESENTATION, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.  ANY MATERIAL TRANSMITTED, STORED, ACCESSED OR OTHERWISE MAINTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK.
  10. LIMITATION OF LIABILITY:  IN NO EVENT WHATSOEVER SHALL EXOBI ITS OFFICERS, DIRECTORS, EMPLOYEES LICENSORS AND AFFILIATES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE.  IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF EXOBI OR ITS AFFILIATES, IN CONNECTION WITH THE SERVICE, REGARDLESS OF THE FORM(S) OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE FEE PAID BY CLIENT TO EXOBI UNDER THIS SERVICE AGREEMENT.
  11. Force Majeure: Exobi shall have no responsibility or liability for any delays in or interruptions or failures of its performance under this Service Agreement beyond its reasonable control, including, but not limited to, acts of God, acts of governmental authority, fire, acts of war, terrorism, flood, strikes, severe or adverse weather conditions, power failures or communications line or network failures.
  12. Indemnification:  Each party agrees to indemnify the other party and undertake to such party, its assignees, successors in interest, or licensees harmless of and from any and all costs and expenses (including but not limited to reasonable attorney’s fees), loss, claim, liability, or obligation arising out of any breach by the other party of the representations and warranties made herein.
  13. Authority:  Client and Exobi each warrant and represent that they have the right to enter into this Service Agreement and to make the commitments each makes herein and doing so does not violate any other agreement to which it is a party.
  14. Non-Competition:  Both Exobi and Client agree to non-competition regarding their respective customers. Unless the other party grants its written consent, neither company will attempt to take any customers from the other company for any reason whatsoever. Unless otherwise specified herein, customer and Client information will be kept confidential between the companies and will be used for the sole purpose of performing the contractual services defined in this Service Agreement.
  15. Severability:  If any part of this Service Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, that part will be enforced to the maximum extent permitted by law, and the remainder of this Service Agreement will remain fully in force.
  16. Choice of Law:  The validity, construction, interpretation and legal effect of this document shall be governed and construed in accordance with the laws of the State of New York, without giving effect to the conflicts of laws principles thereof.
  17. Amendments:  No amendment of this Service Agreement shall be binding upon the parties unless in writing and signed by authorized representatives of Client and Exobi.  Any written agreement in connection with Additional Services shall be subject to the terms of this Service Agreement.
  18. Assignment:  This Service Agreement may not be assigned or otherwise transferred by Client, including any assignment by operation of law, without the prior written consent of Exobi.
  19. Entire Agreement:  This Service Agreement constitutes the entire agreement of the parties hereto with respect to its subject matter and may be amended or modified only by a writing signed by duly authorized officers of both parties.  This Service Agreement supersedes all previous agreements between the parties with respect to its subject matter.  There are no oral or written collateral representations, agreements or understandings except as provided herein.

Ticketing Terms and Conditions

This set of terms and conditions (the “Ticketing Agreement”) is attached to and hereby made part of the Gala Festival Engine – Terms and Conditions Between you (“Client”) and Exobi Interactive (“Exobi”), effective on June 14, 2016 (the “Service Agreement”). Defined terms not defined herein shall have the meaning ascribed to them in the Service Agreement:

GALA FESTIVAL ENGINE EVENT TICKET SELLER/PRODUCER TERMS OF USE AND AGREEMENT

Client agrees to all of the following terms and policies:

  1. Producer – Client and any promoter, ticket seller, venue representatives, or other authorized agents providing services or events for which tickets are sold are hereinafter collectively referred to as “Producer(s)”. Producers using Exobi Interactive ticket selling services agree and understand these terms are a legal, binding, and enforceable agreement. Producer represents and warrants that they are authorized to sell tickets for events or services. Fraudulent representation by a Producer, or of event(s), is a criminal offense, which voids this agreement. Exobi Interactive will assist law enforcement in prosecuting any fraudulent use of Exobi Interactive ticket sales services, and will legally seek any and all compensation for damages due to fraudulent representation.
  2. Exobi Interactive – Gala Festival Engine is the product of Exobi, an independent company providing ticketing services for event Producers and venues. Exobi is not affiliated with any event producers or others providing services or events for which tickets are purchased. Exobi is solely acting as an intermediary between Producer and ticket purchaser for specific events. Exobi assumes no liability incidental to the event for which tickets are sold or purchased.
  3. Scope of Agreement and Amendments – This agreement is limited to the individual event(s) explicitly described in the Services Specifications section of page one of the Service Agreement for which Producer is using Exobi ticket sales services. Exobi reserves the right to change or modify the terms of this Ticketing Agreement as well as the Service Agreement at any time for subsequent events.
  4. Amendments – Exobi Interactive reserves the right to amend this agreement at any time, by providing notice to Client.
  5. Event Promotion and Advertising – This Agreement does not obligate Exobi Interactive to promote or advertise the event for which tickets are sold. Producer acknowledges and understands it is Producer’s sole responsibility to promote and/or advertise the event.
  6. Ticket and Merchandise Pricing – For most events, Exobi Interactive provides Producer with ticket and merchandise sales  services with no initial fees or start-up charges, unless specifically agreed upon. Ticket and merchandise pricing is solely determined by Producer. Producer is exclusively responsible for and hereby agrees to accurately report and to pay for all city, municipal, county, district, state and federal income, sales and other taxes (if any) that are owed in connection with any sale of tickets or other merchandise  or any remission of funds by us to you.  Exobi will in no event be responsible for paying any such taxes.
  7. Ticket and Merchandise Purchaser Fees – Client agrees that Exobi may charge ticket and/or merchandise purchasers a service fee as defined on the Gala Festival Engine Pricing Page: http://gala-engine.com/pricing/. (the “Service Fees”)
  8. Third Party Ticket Sales – Should Producer choose, a third party entity may provide ticketing services for their event, linked from their Gala Festival Engine website. Client agrees that any ticket sales made by a third party entity will be completed outside of the Gala Festival Engine website and Exobi will not be held responsible or liable for any ticket sales or fees purchased outside of the Gala Festival Engine website.
  9. Ticket Availability and Over Sales – Producer is solely responsible for setting the number of tickets available for purchase for each event. Producer agrees that the number of tickets for sale is within the legal fire regulations and venue capacity limitations as set forth by the city, municipality, county, district, state, and/or federal codes and/or laws. If over sales of tickets occur, Producer agrees that Exobi will not be held responsible for refunds of ticket sales for unused tickets.
  10. Ticket and Merchandise Refund Policy – All sales are final. No refunds, cancellations or exchanges will be issued for date or time changes, partial performances, or lost tickets. Producer must maintain a refund policy and must display said policy on its website in such a manner that a ticket buyer would be made aware of the policy. Such refund policy must inform ticket and merchandise buyers that refunds, if any, are the sole responsibility of Producer and not of Exobi for any reason, including without limitation, over sales,  cancellation or postponement of events, customer dissatisfaction with performances or seat location, lost, stolen, damaged or destroyed tickets, or any other reason.
  11. Payment Processing – Client is required to have or create an account at http://Stripe.com in order to process credit card payments from within their Gala Festival Engine site. Producer must provide Exobi staff with the appropriate logins or API keys to their Stripe.com account in order to complete their ticketing setup. Gala Festival Engine does not work with any other payment processors besides Stripe.com. Producer’s Stripe.com account is not handled in any way by Exobi, and Producer agrees to familiarize themselves with all policies and abide by all legal requirements associated with their Stripe.com account.  Client hereby authorizes Exobi to direct Stripe.com to transfer any Service Fees owed to Exobi from Client’s Stripe.com account to Exobi’s account. Client further agrees to execute and deliver to Stripe.com and additional documentation required by Stripe.com in order to facilitate such transfer of Service Fees.
  12. Account Settlement – Generally, Exobi will mail an invoice via email to Producer within ten (10) business days after the event end date. The invoice will include any Gala Ticketing Fees and/or Merchandise Fees incurred during the event that had not been previously withheld by Stripe at the time of the transaction and thereafter transferred to Exobi. The invoice will not include processing fees associated with their Stripe.com account.
  13. Physical Delivery – Exobi shall in no event be responsible for the physical delivery of any tickets or merchandise sold by Producer through the Application. It is the Producer’s responsibility to verify the identity of the ticket or merchandise  purchaser by either photo identification or the last four digits of the credit card used to purchase the tickets or the merchandise before fulfilling orders of physical goods purchased.
  14. Indemnification and Hold Harmless – At its own expense, Producer agrees, acknowledges, and understands it will indemnify and hold harmless Exobi, its officers, agents, employees and assigns, from and against all claims, demands, losses, costs, penalties, damages, judgments and suits at law or in equity, of whatsoever nature (hereafter “actions”), brought against Exobi arising from, in connection with, or incident to the performance of, or failure to perform the provisions of this Ticketing Agreement by Producer, its officers, agents, employees or assigns. Producer further agrees to defend Exobi in any litigation, including payment of any costs or attorney’s fees, for any claims or action commenced thereon arising out of or in connection with such acts or activities authorized by this Ticketing Agreement.
  15. The above indemnity obligation shall not include such claims, costs damages or expenses that may be caused by the gross negligence or willful misconduct of Exobi.
  16. Severability – If any term or provision of this Ticketing Agreement or the application thereof to any person or circumstances shall, to any extent, be invalid or unenforceable, the remainder of this Ticketing Agreement and the Service Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and shall continue in full force and effect.
  17. Limitation of Liability – Producer understands and agrees that Exobi shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to damages for loss of profits, goodwill, use, data or other intangible losses (even if Exobi has been advised of the possibility of such damages). Some jurisdictions do not allow the exclusion of the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations may not apply to you. In no event will Exobi’s total cumulative damages exceed US$100.00.
  18. Disclaimer of Warranties – Producer understands and agrees that Exobi’ ticketing service is provided on an “as is” and “as available” basis, and that Exobi assumes no responsibility for the timeliness, deletion, failure to store, or retention of any user communications or personalization settings. Exobi Interactive will not be liable for failure to perform any obligation under this Agreement if such failure is caused by Internet outages or delays, unauthorized access (hacking), earthquakes, communications outages, fire, flood, war, an act of God, or the occurrence of any other unforeseen contingency beyond the reasonable, control of Exobi.
  19. Entire Agreement – This Ticketing Agreement, together with the Service Agreement and all attachments hereto, constitutes the entire agreement between the parties. There are no terms, obligations, covenants or conditions other than those contained herein. No modification or amendment of this Ticketing Agreement by Client shall be valid and effective unless evidenced by an agreement in writing.