Standard Terms and Conditions

This Agreement is entered into by and between Spektrix Canada Ltd., 1900 520 – 3rd Ave SW, Calgary AB T2P 0R3 ("Spektrix”), and the Party identified as the client in the Application Services Agreement to which this document is attached (the “Client”). In return for the being provided with access to the Services the Client agrees to be bound by the undertakings in this Agreement (the “Services”).

In consideration of the mutual obligations set out below the parties agree as follows:

1. Definitions

1.1 In this Agreement the following words shall have the following meanings unless otherwise expressly stated:

“ Agreement ” means the Schedules and any documents referred to therein together with the provisions contained within this document and the Appendix;

“ Application Program Interface ” means the set of commands, functions, and protocols which allow third party systems to access the features and data of the Client’s Spektrix system;

“ Charges ” means the charges set forth in the “Charges” section of the Schedule;

“Client” includes person who purchases, installs, activates, copies or otherwise uses the Services, including any person acting on behalf of and with the authority of the Client, in accordance with this Agreement;

“Client Materials” means any documentation, materials, software, data and all other materials supplied by the Client to Spektrix for the purposes of this Agreement including without limitation any computer files containing data which is to be migrated from the Client’s existing database to Spektrix’s Application Web Site;

“Codes” means all applicable legislation, regulations, directions, rules, codes of practice and guidelines applicable to Messages in the countries in which the Client operates and/or in which recipients of Messages sent using the Services are located (including, without limitation, the Committee of Advertising Practice Code (CAP Code), Spamhaus best practice guides, DMA best practice guides, applicable guidelines published by the CTIA, the Mobile Marketing Association and also including, without limitation, any requirements or practices in relation to telemarketing such as a telephone preference service regime, ‘do not call’ regime) (as is relevant) as may be revised or adopted in relation to marketing best practice.

“ Commencement Date ” means the date specified in the “Commencement Date” section of the Schedule or if no date is specified, the date on which Spektrix begins providing access to the Services;

“ Confidential Information ” means any and all secret, proprietary or confidential information including financial, marketing, and technical information, know-how, and trade secrets all whether in written, electronic or any other form or medium, and whether disclosed before, on or after the date of this Agreement;

“Data Migration” means a process that involves Spektrix importing data from the Client’s database into the database used by Spektrix’s Application Web Site;

“ Documentation ” means the manuals and other documentation made available to the Client by Spektrix in connection with the Services where applicable, as updated, replaced or supplemented from time to time by Spektrix;

“ Effective Date ” means the date specified in the “Effective Date” section of the Schedule;

“ Email Services ” means the functionality provided within the Services that enables the Client to create, schedule, and send email (and, where applicable, SMS or other electronic) messages to individuals. The Email Services are provided through Dotdigital’s integrated platform.

“ Initial Term ” means the period set forth in the “Initial Term” section of the Schedule;

“ Intellectual Property Rights ” means any and all present and future intellectual, industrial, statutory and other proprietary rights throughout the world (whether registered or unregistered, or capable of registration), including patents, copyrights (including rights in software and source or object code), moral rights, trademarks, service marks, trade names, business names, trade dress (to the extent protected under applicable law), domain names, goodwill, industrial designs (registered or unregistered to the extent recognized by law), know-how, confidential information, models, and all applications for and rights to apply for any such rights, and all rights of action and remedies associated therewith, whether existing before or after the commencement of this Agreement;

“ Party ” means and includes Spektrix and the Client, which shall together be referred to as the “Parties” and each as a “Party”;

“ Reports ” means any database or report which Spektrix is required to generate, process, store or transmit made up of any data, text, drawings, diagrams, images or sounds supplied to Spektrix either by or on behalf of the Client or otherwise, and which are embodied in any electronic, magnetic, optical or tangible media;

“ Schedule ” means the document headed “Application Services Agreement” to which this document is attached, as updated from time to time with the agreement of both Parties;

“ Services ” means the subscription services (including access to the Software by whatever means including by means of a non-chargeable demonstration) provided by Spektrix to the Client under this Agreement from the Website or any other website notified to the Client by Spektrix from time to time, as more particularly described in the “Application Services” section of the Schedule;

“ Software ” means all software applications provided by Spektrix as part of the Services (including all client-side scripts and server side code (whether compiled or uncompiled) which form a part of Spektrix’s Application Web Site) as updated from time to time by Spektrix and where specified in the Schedule;

“ Spektrix’s Application Web Site ” means websites within the spektrix.com domain (or any other domains of which the Client has been notified by Spektrix from time to time) which provide interfaces to the server-side Software and to which access is available after logging in using the User Login Details;

“ Spektrix Materials ” means any information, documentation, materials, software, equipment, data, reports and all other materials owned or licensed by Spektrix, including Spektrix’s Application Web Site, the Software, the Documentation and the Reports;

“ Support Services ” means the services described in the Appendix;

“ Term ” means the Initial Term and any subsequent additional Renewal Periods as and if continuing in accordance with Section 2.1;

“ Users ” means the number and types of users set forth in the “Users” section of the Schedule who are permitted to access and use the Software; and

“ User Login Details ” means the username, password and other information which a User will be required to input in order to be granted access to Spektrix’ Application Web Site.

2. Duration and Scope of Agreement

2.1 This Agreement shall come into force on the Effective Date. The Services shall commence on the Commencement Date and, subject to the provisions for earlier termination in this Agreement, shall continue for the Initial Term and, thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”) commencing at the end of the Term unless either Party gives at least thirty (30) days’ prior written notice to the other prior to the expiration of the Initial Term or any Renewal Period, in which case this Agreement shall terminate upon the expiration of the termination notice period.

3. The Services

3.1 Spektrix grants to the Client a non-exclusive, non-transferable, non-sublicensable right to permit the Users to use the Services and the Documentation during the Term solely for the Client’s internal business operations which require the same.

3.2 The Client shall be solely responsible for providing, configuring, and maintaining its systems, and all hardware, software and network connections necessary to enable it to connect to the Internet to access Spektrix’s Application Web Site. The Client shall be solely responsible for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client or Client’s network connections or telecommunications links or caused by the Internet.

3.3 Spektrix agrees to provide the Support Services from the Commencement Date for the Term.

3.4 Spektrix may, from time to time, at its sole discretion, choose to update the Services and/or Spektrix’s Application Web Site. In the event that it chooses to do so, Spektrix will use reasonable efforts to provide the Client with any amendments to the Documentation necessary to enable Client’s use of any improved facilities and functions of the updated Services and/or Spektrix’s Application Web Site.

3.5 Spektrix may engage and use third party service providers in connection with the provision of the Services and the performance of its obligations under this Agreement. Spektrix shall remain responsible for the performance of the Services by such third-party providers as if Spektrix was performing the Services itself, except where the Client enters into a direct contractual relationship with that third party, in which case that relationship shall be governed by the applicable terms and conditions agreed between the Client and that third-party provider. Details of such third-party service providers are set out in the ASA.

4. Client Obligations

4.1 The Client acknowledges that for sales of any items using the Services, the Client, and not Spektrix, is the selling contracting party, and is responsible for supplying the relevant items, providing refunds to customers and calculating and paying any applicable sales tax and, in doing so, complying with all of its contractual obligations and applicable laws and regulations, including but not limited to consumer protection and privacy laws;

4.2 The Client undertakes (except to the extent required by: (1) law, and only then for the specific limited purposes stated in such applicable law; or (2) this Agreement):

4.2.1 not disseminate or make available or cause to be available the Services and/or Documentation in whole or in part and in any form, whether for sale or otherwise, to any person except Users without prior written consent from Spektrix and shall supervise and control access to the User Login Details in accordance with this Agreement and applicable law and ensure all Users comply with the terms of this Agreement

4.2.2 to use the Services and/or Documentation solely for its internal business purposes and not use them to provide any form of bureau services, managed services, outsourced services, sub-licensing, time sharing, rental, facility management, or process data on behalf of a third party or provide any other form of services or access to the Services and/or the Documentation to any third party unless otherwise agreed in writing by Spektrix. This does not prevent the Client from using the Services and/or the Documentation to provide ticketing to third parties who are renting the Client’s venue and/or the Client’s third party agents to purchase seats through an Application Program Interface to the Services;

4.2.3 not use or copy all or any part of any Spektrix Materials (other than as specifically permitted by Spektrix) nor otherwise modify, reproduce, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of any Spektrix Material in any form or media or by any means reverse compile, disassemble, reverse engineer or, except as expressly permitted by law, reduce to human-readable form all or any part of the Software.

4.3 The Client shall:

4.3.1 use the Software and Services as its sole and exclusive application for the processing of its ticket sales for the Term;

4.3.2 notify Spektrix within thirty (30) days of the Commencement Date if the User Login Details and Documentation which has been provided to the Client are not in accordance with this Agreement. The Client will be deemed to have accepted the User Login Details and Documentation in the absence of Spektrix receipt of such notification within the thirty (30) day period;

4.3.3 except with respect to the limited rights granted by Spektrix to use and receive the Services and Support Services under this Agreement, obtain all necessary consents, licenses and permissions (including from performers and venues) in order for the Client to use and receive the Services and Support Services; and

4.3.4 not take any action to remove or conceal any content, text, graphic, logo or link appearing on customer facing webpages which identifies Spektrix as the owner and/or publisher of the Software and/or Services.

4.3.5 Indemnify, defend and hold harmless Spektrix and its affiliates and each of their officers, directors, managers, members, shareholders, partners, agents and representatives, and each of their successors and assigns from and against all damages, losses, liabilities, obligations, costs and expenses (including reasonable legal fees) resulting from (a) any breach of any Client obligation, representation or warranty, (b) any claim that Spektrix’s access to, or collection, storage, or use of any Client data, files, documentation or materials or any part thereof infringes the Intellectual Property Rights or other rights of a third party, (c) any act or omission of Client or a contractor, vendor, agent or representative of Client, or any false, misleading or deceptive representation or statement made by the Client in respect of the Services to any person.

4.4 The Client represents and warrants to Spektrix that:

4.4.1 the execution and delivery of the Agreement and the performance of its obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on it and enforceable in accordance with its terms.

4.4.2 the tickets sold using the Services are valid and provide access to the event, service or product promised on or by the ticket and all other items sold using the Services comply with their description, are of satisfactory quality, are fit for the purpose for which they were sold and in all other respects (including the solicitation, advertising or marketing therefor) comply with all applicable laws and regulations.

4.4.3 The Client acknowledges and agrees that it shall have no right or claim to any commission, royalty or other payment or benefit on or with regard to the enrolment of new users of the Services, or the licensing of the Software or any of Spektrix’s other products whether arising from inquiries from any third parties about the Services or any of Spektrix’s software products or otherwise.

5. Spektrix’s Warranties

5.1 Spektrix represents and warrants to the Client that:

5.1.1 the execution and delivery of the Agreement and the performance of its obligations hereunder have been duly authorized and that the Agreement is a valid and legal agreement binding on it and enforceable in accordance with its terms

5.1.2 it will use commercially reasonable efforts to ensure that, during the Term, the Services, when used in accordance with this Agreement, will function materially in accordance with the Documentation; provided, however, that this warranty shall not apply to the extent that any non-conformity is caused by use of the Services in any manner that is contrary to Spektrix’s instructions, any modification or alteration of the Services by any party other than Spektrix or Spektrix’s duly authorized contractors or agents, or any other act or omission of any other party.

5.1.3 Spektrix provides no assurance whatsoever that (i) the Services, the use thereof, or the results obtained by using the Services will be uninterrupted or error free, (ii) defects or errors in the Services will be corrected, (iii) the Services are capable of operation with any equipment or software or that the Services will meet the Client’s requirements, or (iv) the Services will yield any benefit to Client.

5.2 Except as expressly provided in this Agreement, all other warranties, conditions or representations (whether express or implied by statute, common law, custom, trade usage or otherwise), including but not limited to implied warranties of merchantability or fitness for a particular purpose, are excluded to the fullest extent permitted by law.

5.3 The Client acknowledges that the Services are provided via the internet and that Spektrix does not control the availability or uninterrupted operation of the Services. The Client is responsible for assessing whether the Services are suitable for its purposes.

5.4 Any advice, recommendations, information, or representations provided by Spektrix in relation to the Services are given in good faith but without liability, and the Client confirms that it has not relied on any representations other than the express warranties set out in this Agreement.

6. Charges

6.1 The Client shall pay the Charges to Spektrix by cheque or bank transfer in accordance with this Agreement and in accordance with the timetable set forth on the Schedule together with applicable sales tax at the applicable rate and payment shall be made, except as expressly permitted in Section 6.2, without deduction, withholding or set off or any claim. If at any time Spektrix is required to charge, or the Client is otherwise required to pay, sales tax in any jurisdiction, the Client shall pay the sales tax and Spektrix shall also be entitled to withhold for and collect the same, unless the Client is otherwise exempt from payment under applicable law, and, in that event, the Client shall provide Spektrix with appropriate evidence of any such exemption.

6.2 All invoices issued by Spektrix shall be due and payable by the Client in accordance with the Payment Schedule section of the Schedule.

6.3 If the Client does not pay the amount of any invoice from Spektrix when it is due, then without prejudice to any other right or remedy of Spektrix:

1. any invoice or part thereof which remains unpaid when due shall be subject to an interest charge of 2% per month, or such lower percentage permitted by law if 2% per month is not permitted by applicable law; and

2. Spektrix is entitled to suspend the provision of the Services until the date of payment in full of the unpaid amount.

6.4 Spektrix may, by giving not less than thirty (30) days’ written notice prior to the commencement of any Renewal Period, notify the Client of the Charges that will apply for the subsequent Renewal Term. Any such Charges shall apply only from the start of the applicable Renewal Term and shall not constitute a variation of the Charges payable during the then-current Term.

6.5 Any deliberate manipulation of sales data by the Client, including but not limited to intentional underreporting of sales, misrepresentation of amounts received, or concealment of transactions, shall constitute a material breach of this Agreement. In such cases, Spektrix shall be entitled to the Charges specified in the Schedule based on the full actual amount received by the Client, and the Client shall promptly pay any shortfall without deduction or set-off. Spektrix may also suspend access to the Services and/or terminate this Agreement with immediate effect. If Spektrix becomes aware of material inaccuracies in reported sales data that appear unintentional, it may require the Client to investigate and correct such discrepancies within 10 days of notice. Failure to do so shall be deemed a material breach entitling Spektrix to suspend access or terminate this Agreement.

6.6 Spektrix may monitor and audit the Client’s use of the Software and Services on an automated basis, including the number and type of users, usage patterns, and configuration settings, solely for the purposes of maintaining system stability, ensuring security, and detecting or preventing fraud or misuse. Such monitoring will be conducted in a manner that is proportionate, non-intrusive, and consistent with Spektrix’s obligations under this Agreement, including its obligations relating to data privacy and confidentiality. The Client shall, upon request, provide reasonable assistance to Spektrix in connection with any follow-up actions arising from such audit.

7. Intellectual Property Rights

7.1 All Intellectual Property Rights in the Spektrix Materials or otherwise, including those under license from Spektrix Limited or any third party, shall remain vested in Spektrix and/or its licensors.

7.2 Except as expressly set forth in this Agreement, the Client shall not acquire any right, title or interest in or to any of the Spektrix Materials or the Intellectual Property Rights of Spektrix or its licensors.

7.3 If the Client acquires, by operation of law, any right regarding any Intellectual Property Rights that is inconsistent with the allocation of title set forth in Sections 7.1 and 7.2, it shall immediately, unconditionally and without compensation assign, and where applicable waive, in a writing in form and substance satisfactory to Spektrix, any and all such Intellectual Property Rights to Spektrix or its designee and deliver, execute and file any other agreement or document all upon request (whenever made).

7.4 Client grants Company a non-exclusive, non-transferable, royalty-free licence to use Client’s name and logo in Company’s marketing and promotional materials to identify Client as a current or former user of the Services. Client will not use Client’s name or logo in any way that suggests Client’s endorsement of Company or the Services.

7.5 Spektrix agrees to indemnify the Client against all damages, losses, costs and expenses (including reasonable legal fees) resulting directly from a finding by a court in Canada that the use of the Services or the Spektrix Materials by the Client in accordance with this Agreement infringes a valid Canadian copyright or misappropriates a trade secret of a third party in Canada existing at the time that this Agreement is entered into provided that the Client:

7.5.1 gives written notice to Spektrix of any such claim of infringement or misappropriation as soon as it becomes aware of the same; and

7.5.2 gives Spektrix sole control of the defense of any such claim, provides Spektrix with all reasonable assistance (at the expense of Spektrix) in connection with the defense and settlement of any such claim, and does not admit liability, or attempt to settle or compromise such claim without the prior written agreement of Spektrix; and

7.5.3 uses its best efforts to mitigate any damages, losses, costs and expenses resulting from such claim of infringement.

7.6 In the event of such a claim referenced in Section 7.4, Spektrix shall be entitled to:

7.6.1 procure the right for the Client to continue using such Services or Spektrix Materials or infringing part thereof; or

7.6.2 make such modifications to such Services or Spektrix Materials or relevant parts thereof so that such Services or Spektrix Materials become non-infringing without resulting in a material reduction in the quality or performance of such Services or Spektrix Materials; or

7.6.3 replace such Services or Spektrix Materials or relevant parts thereof with non-infringing substitutes provided that the use such substitutes do not result in a material reduction in the quality or performance of such Services or Spektrix Materials.

7.7 The Parties agree that Section 7 states the entire liability of Spektrix and the sole and exclusive remedy of the Client with respect to any claim that the Services or the Spektrix Materials infringe or misappropriate the Intellectual Property Rights of a third party.

8. Confidentiality

8.1 Subject to Section 8.2, all Confidential Information of each Party disclosed or obtained as a result of this Agreement shall be kept confidential by the Parties and neither Party shall use or disclose such Confidential Information. Where such Confidential Information is disclosed by a Party to its employees, consultants, agents or sub-contractors, it shall be subject to confidentiality obligations equivalent to those set forth in this Agreement. Each Party shall make reasonable efforts to ensure that any such employee, consultant, sub-contractor or agent complies with such obligations.

8.2 The obligations of confidentiality in Section 8.1 shall not extend to any disclosure of Confidential Information which the disclosing Party can show:

8.2.1 is necessary for the proper performance of its obligations under this Agreement;

8.2.2 has been carried out with the prior consent of the other Party;

8.2.3 was or has become part of the public domain other than as a result of a breach of the obligations of confidentiality under this Agreement; or

8.2.4 was in its records prior to the Commencement Date (other than from the disclosing Party); or

8.2.5 was independently disclosed to it by a third party entitled to disclose the same; or

8.2.6 is required to be disclosed under applicable law, or by order of a court or governmental body or other authority of competent jurisdiction.

9. Client Data

9.1 Personal Information shall be processed in accordance with the Data Processing Agreement.

9.2 The Client hereby provides its consent to Spektrix to collect anonymous data regarding the Client’s use of the Services and for Spektrix to provide such data to its related companies for the purposes of marketing its services or for any other purpose connected with this Agreement, including, for example, assessing Client satisfaction. Spektrix does not collect information about identifiable individuals but may collect aggregate information about Users (for example, the number of tickets processed and the values of each transaction).

10. Limitation of Liability

10.1 Subject to sections 10.2 and 10.3, neither party shall be liable in any circumstances to the other party for any indirect, incidental, consequential, exemplary, special, or punitive damages, including any loss of profit, revenue, business opportunity, anticipated savings, good will or data, arising from or relating to this Agreement (or any damages arising from a claim by a third party for any of the above losses) whether in contract, in tort, negligence or otherwise even if such loss was reasonably foreseeable or such Party was advised of the possibility of the same.

10.2 The aggregate liability of Spektrix for all claims arising under or in connection with this Agreement, including for any indemnification hereunder, whether arising under contract, statute, tort (including negligence) or otherwise, shall be limited solely to the charges actually paid to Spektrix by the Client under this Agreement during the 12 months immediately preceding the date on which notice of the claim was received by Spektrix; and

10.3 In furtherance of the above limitation, the liability of Spektrix for all claims arising from a single event or series of events under or in connection with this Agreement, including for any indemnification hereunder, whether arising under contract, statute, tort (including negligence) or otherwise, shall be further limited solely to the charges actually paid to Spektrix by the Client under this Agreement which relate specifically to the transaction(s) in question, i.e. relating to the particular event on or at a particular date and time. Client shall give Spektrix prompt notice at the time any claim under this Agreement arises.

10.4 Nothing in this Clause 10 or otherwise shall exclude or limit the Client’s obligation to pay the Charges and damages and costs under any indemnification in favor of Spektrix.

10.5 The Charges have been calculated and agreed to on the basis that each Party will exclude and limit its liability as set forth in this Agreement, and the Parties therefore agree that the limitations and exclusions of liability in this Agreement are fair and reasonable.

10.6 In addition to and not in limitation of anything else contained herein or otherwise, Spektrix will not be liable for:

10.6.1 Any failure to comply with the provisions of this Agreement if such default is attributable to any extent to any act or omission of the Client, or the Client’s agents, employees or contractors;

10.6.2 the failure in the performance of any Client obligation under this Agreement;

10.6.3 Any consequences arising from Spektrix complying with the law or the Client’s instructions or requirements;

10.6.4 Any consequences arising from the Client or any other party failing to secure any necessary consents, licenses or permissions;

10.6.5 Any consequences arising from the Client, the Users or any other party failing correctly to enter information into the Services; or

10.6.6 Any act or omission of the Client, the Users or any other party in connection with the promotion and publicizing of events or otherwise.

11. Termination

11.1 Either Party may terminate this Agreement with immediate effect by written notice to the other Party if the other Party materially breaches any of its obligations under this Agreement and:

(a) the breach is not capable of remedy; or

(b) the breach is capable of remedy but remains uncured for fourteen (14) days after written notice specifying the breach and requiring its cure.

However, if a Party commits three (3) material breaches within any rolling twelve (12) month period, the non-breaching Party may terminate this Agreement immediately, without further notice or cure period.

11.2 Notwithstanding anything else contained herein, Spektrix may terminate this Agreement immediately upon written notice to the Client, without any opportunity to cure, if the Client is in material breach of: Section 4 (Use of Services), Section 6 (Charges and Payment), Section 8 (Confidentiality), Section 14 (Assignment), Section 18 (Export Control) or the Dotdigital Flow Down Terms.

11.3 Either Party may terminate this Agreement immediately upon notice in writing to the other Party (the “Defaulting Party”) if the Defaulting Party files a petition for bankruptcy or is adjudicated as bankrupt; or a petition in bankruptcy is filed against such party; such party makes an assignment for the benefit of its creditors; a receiver is appointed for such party or its business; a resolution has been passed or a petition has been filed by such party for its liquidation, dissolution or winding-up; if such party is insolvent or unable to pay its debts when due or admits the same; or such party discontinues its business or ceases to operate as a going concern.

11.4 Either Party may terminate this Agreement at any time by giving thirty (30) days prior written notice of termination.

11.5 If the Client terminates the Agreement under Section 11.4 before the end of the then-current Term, the Client shall pay an early termination fee (the “Termination Fee” ) equal to:

(a) the Charges that would have been payable for the remaining portion of the Term, calculated based on the average monthly Charges paid during the twelve (12) months immediately preceding the notice of termination; or
(b) if fewer than twelve (12) months have elapsed, the reasonably estimated Charges for the remainder of the Term as outlined in the Schedule.

12. Consequences of Termination

12.1 The termination of this Agreement shall be without prejudice to the rights and remedies of either Party which have accrued up to the date of termination.

12.2 Other than Sections 3, 5, and 14, upon termination of this Agreement, the provisions of this Agreement shall survive, as applicable, by their terms.

12.3 Upon termination of this Agreement, each party must cease using the other party’s property, including any materials, services, Intellectual Property Rights, and Confidential Information, except to the extent expressly permitted under this Agreement. The Client shall therefore make no further use of the Services, the Spektrix Materials, or Spektrix’s Intellectual Property Rights or Confidential Information. Spektrix shall make no further use of any Client Materials (other than as permitted under clause 7.4), Client Data (other than in anonymised aggregate form), or Client Confidential Information.

12.4 Spektrix may destroy or otherwise dispose of any of the Client’s data in its possession unless Spektrix receives, no later than ten (10) days after the effective date of the termination of this Agreement, a written request for the delivery to the Client of the then most recent back-up of the Client’s data. Spektrix shall use reasonable commercial efforts to deliver the back-up to the Client in an interchange format and within thirty (30) days of its receipt of such a written request, provided that the Client has, at that time, paid all Charges to such date and all other fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). Spektrix may charge the Client for the time devoted to any data extraction if Spektrix, in its sole discretion, considers the data extraction to be outside of its standard data export process.

12.5 Upon termination of this Agreement, all licenses granted by Spektrix to the Client under this Agreement will immediately terminate.

13. Force Majeure

13.1 If either Party is prevented, hindered, or delayed in performing its obligations due to an event beyond its reasonable control, including acts of God, pandemic, epidemic, government shutdown, civil unrest, or venue closures (a “Force Majeure Event”), such failure or delay shall not constitute a breach of this Agreement.

13.2 During a Force Majeure Event, the affected Party’s obligations shall be suspended for the duration of the event, provided that it promptly notifies the other Party of the event, its anticipated duration, and uses reasonable efforts to resume performance as soon as practicable.

13.3 Client payment obligations are not automatically excused by a Force Majeure Event. However, if the Force Majeure Event materially prevents the Client from holding events or selling tickets for a continuous period of thirty (30) days or more, the Parties shall enter into good faith discussions to temporarily rescope the Services and Charges where feasible.

13.4 If a Force Majeure Event continues for three (3) consecutive months or more, either Party may terminate this Agreement upon written notice. In such case, the Client shall pay all Charges accrued through the effective date of termination, provided that Spektrix has continued to provide the Services in accordance with this Agreement.

14. Assignment

14.1 The Client shall not assign, transfer or otherwise dispose of any of its rights or responsibilities under this Agreement without the prior written consent of Spektrix.

14.2 Spektrix may assign, delegate, subcontract, or transfer its rights or obligations under this Agreement to a parent, subsidiary, or affiliated entity without Client consent, provided that:(a) such entity is capable of performing Spektrix’s obligations under this Agreement; and (b) the transfer does not materially reduce the level or quality of the Services provided to the Client. Spektrix shall provide the Client with written notice of any such assignment or transfer. If the Client objects to any transfer under this clause, it may elect to terminate this Agreement for convenience by providing not less than thirty (30) days’ prior written notice to Spektrix. Such termination shall be deemed to be a termination under Section 11.4.

14.3 In the event that the Client undergoes a change of control (as defined below) and Spektrix believes that such change of control shall: (i) affect the ability of the Client to pay the Charges; or (ii) affect the ability of Spektrix or the Client to perform their respective obligations under this Agreement; or (iii) have a material impact on the scope or type of use of the Application Services then Spektrix shall be entitled to terminate this Agreement immediately on notice, or, in the sole discretion of Spektrix, propose changes to this Agreement as a consequence of such change of control and, in the absence of agreement of the Client to such changes given within ten (10) days of such proposal, Spektrix shall be entitled to terminate this Agreement immediately on notice. For the purposes of this Section “change of control” shall occur where (a) there has been a change of ownership of shares or other interests in the Client resulting overall in more than 50% of the total voting rights conferred by all such shares or other interests being held directly or indirectly by a person who did not hold at least 50% of the voting rights at the date of this Agreement or (b) the whole or a substantial part of the business or assets of the Client has been sold or otherwise disposed of.

15. No Third-Party Beneficiaries

15.1 This Agreement is not intended to confer and does not confer any rights or benefits on any third party and no third party shall have any right to enforce any of the terms of this Agreement (except for the indemnitees referenced herein).

16. Independent Contractors

16.1 The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement or otherwise shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, or employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner.

17. Amendment and Modification

17.1 Spektrix may in its discretion change or modify the terms of this Agreement from time to time provided that such changes do not have a materially adverse impact on the Services or Client or materially affect the rights, remedies and obligations contained within this Agreement (a minor change). If Spektrix makes any other changes to this Agreement (a material change), such changes will not take effect until the commencement of any renewal period (if applicable), unless required by applicable law or otherwise agreed in writing between the parties. Spektrix shall notify the Client of any changes in accordance with this clause 17.1 and Client’s continued use of the Services will confirm the Client’s acceptance of the revised Agreement.

17.2 Any material change to the terms of this Agreement in accordance with clause 17.1 will be deemed accepted by the Client and binding on it unless Spektrix receives written notification within 30 Business Days of the Client being informed of a material change to the terms of this Agreement. If Spektrix receives such notice from the Client, the Parties shall attempt to resolve the modification; provided, however, that neither Party shall be obligated to negotiate and this provision shall not affect the other rights, obligations, options or remedies of the Parties.

18. Export Control Compliance

18.1 The Client agrees to comply with all applicable export control and sanctions laws and regulations, including those of the United States and any other relevant jurisdictions. The Client represents and warrants that neither it nor its end users are listed on any U.S. government denied party list, including but not limited to the Specially Designated Nationals (SDN) List, Denied Persons List, or Entity List. The Client further agrees not to access or use the Services, including Email Services, in any country or territory subject to a U.S. government embargo or comprehensive sanctions, including, as of the effective date of this Agreement, Cuba, Iran, North Korea, Sudan, or Syria. Additionally, the Client shall not use the Services in violation of any applicable export control or sanctions laws, including for any end use prohibited under such laws, such as in connection with the development, production, or use of nuclear, missile, or chemical/biological weapons. The Client is solely responsible for ensuring compliance with this clause by itself and its end users.

19. Severability

19.1 If any term or provision of this Agreement is found to be invalid or unenforceable under applicable law, such determination of invalidity or unenforceability shall not affect any other term or provision of this Agreement and the remaining terms and provisions of this Agreement shall remain in full force and effect in accordance with their terms and the Agreement shall be modified to the extent necessary to make such term or provision valid and enforceable within the scope of the intent of the Parties.

20. No Waiver; Construction

20.1 No provision of the Agreement shall be waived unless agreed in writing to be waived by the Party to be charged with such waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof. No waiver by any Party shall operate or be construed as a waiver of any provision not expressly identified in the written waiver.

20.2 No provision of this Agreement shall be construed against or interpreted to the disadvantage of any party hereto by reason of such party or its counsel having, or being deemed to have, structured or drafted such provision. “Including” and “includes” are inclusive and mean “including, without limitation.” “Or” means “and/or.”

21. Entire Agreement

21.1 This Agreement contains the entire agreement between the Parties with respect to the subject matter of this Agreement (the “Subject Matter”) and supersedes all other prior or contemporaneous agreements or understandings, both written and oral, between the Parties relating to the Subject Matter.

21.2 The terms, conditions, representations and warranties in this Agreement are in lieu of all warranties, conditions, terms, representations, statements, undertakings and obligations whether expressed or implied by law, custom, usage or otherwise all of which are hereby excluded to the fullest extent permitted by law. The Parties hereby confirm that they have not relied upon any representations, warranties, statements, promises, communications or any facts or other matters which have not been expressly stated in this Agreement. Notwithstanding any provision to the contrary, nothing in this Agreement limits or excludes either Party’s liability for fraudulent misrepresentations.

22. Law and Jurisdiction

22.1 This Agreement, and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this Agreement (including any non-contractual disputes or claims), shall be governed by and construed in accordance with the law of the Province of Alberta excluding the application of its conflict of law rules. The Parties irrevocably consent to the exclusive jurisdiction and venue of the courts in Calgary, Alberta for all disputes arising out of or relating to this Agreement and waive any objection based on forum non conveniens or any other objection to venue. With respect to this Agreement, each Party waives personal service of any summons and complaint or other process and papers therein and agrees that service may be made by certified mail, return receipt requested, directed to the Party at the address set forth herein or other address thereof of which the sending Party has received notice.

Appendix 1: Support Services

1. Error Correction

1.1 Subject to Paragraph 4 below (Excluded Services section), if the Client discovers that the Services fail to function in accordance with the Documentation, then the Client shall within seven (7) days after such discovery notify Spektrix by email to support@spektrix.com of the defect or error (“Problem”) in question and provide Spektrix (to the extent that the Client is able to do so) with a documented example of each such Problem.

1.2 Upon receipt of such notification, Spektrix will classify Problems as either an ‘Emergency Problem’ or a ‘Non-Business Critical Problem’ and the times by which Spektrix will respond to such problems are set forth in Paragraph 3 below.

2. Classification of Problems

2.1 Emergency Problems - Issues which Spektrix will classify as Emergency Problems are as follows:

1. total failure of the Services and a total inability to access Spektrix’s Application Web Site; or

2. problems of a critical nature which render a key component or function of the Services inoperable and need to be resolved expeditiously. Examples include selling and printing tickets, retrieving information about orders, and website functionality.

2.2 Non-Business Critical Classification – Issues which do not fall under the Emergency Problem classification referred to in paragraph 2.1 (a) and (b) above will be classified by Spektrix as non-business critical issues.

3. Response Times

3.1 Emergency Problem Response Times – Response times for Emergency Problems in accordance with paragraph 2.1 (a) and (b) above shall be within thirty (30) minutes of receiving notification of an Emergency Problem, provided that Spektrix receives such notification between the hours of 9 AM and 11 PM Eastern Time, Monday to Sunday (7 days a week).

3.2 Non-Business Critical Problem Response Times – If Spektrix receives notification of a Non-Business Critical Problem between the hours of 10 AM and 7 PM Eastern Time, Monday through Friday excluding federal and New York State holidays, it will send out an email to the email address it has on file for the Client confirming that a support ticket has been created and that the Problem is being reviewed by its support staff. The email will include a link which will enable the Client to review the status of the request and to add additional comments. The email will also provide an estimate of the turnaround time on support tickets. If the Client has an urgent request, it should make Spektrix support staff aware in the comments it adds to the ticket or by calling the support department at (646) 569-9097.

3.3 After receiving notification of either an Emergency Problem or Non-Business Critical Problem, Spektrix shall use reasonable efforts to correct such Problem within a reasonable period of time. To the extent possible, after resolving such Problem, Spektrix shall notify the Client that the Services and /or Spektrix’s Application Web Site has been updated (together with any amendments to the Documentation) specifying the nature of the correction and providing instructions for the use of the corrected version of the Software.

4. Excluded Services

4.1 The Support Services do not include services with respect to:

4.1.1 incorrect use of Spektrix’s Application Web Site or Software or an operator error;

4.1.2 defects or errors caused by the use of Spektrix’s Application Web Site or Software on or with a system not approved in writing by Spektrix; and

4.1.3 requests for support made by customers of the Client trying to buy tickets or other items from the Client over the Internet.

4.2 Spektrix agrees to include a reasonable level (such level to be determined by Spektrix in its sole discretion) of on-site and off-site support and training in the Support Services. The Client acknowledges that Spektrix has the right to refuse to provide a Client with on-site and/or off-site support and training if in Spektrix’s sole judgment such level has been exceeded by that Client.

4.3 Spektrix shall charge an additional amount in accordance with its schedule of rates then in effect for any services which Spektrix agrees to provide:

4.3.1 at the request of the Client which are excluded from the Support Services; or

4.3.2 at the request of the Client but which Spektrix determines in its sole judgment are unnecessary. Nothing in this Section or otherwise shall impose any obligation on Spektrix to provide services with respect to any of the exclusions referred to in this Agreement.

4.4 Spektrix shall not unless otherwise expressly agreed in writing, provide the Client with:

4.4.1 consulting services or;

4.4.2 support of any of the Client’s other systems.

4.5 The service charge includes access to a third party email marketing platform. Email “sends” through this platform are also included in the service charge as long as they are at a reasonable level (such level to be determined by Spektrix in its sole discretion).

5. Service Availability

5.1 Spektrix will seek to maintain service availability 100% of the time except when:

5.1.1 planned maintenance needs to be performed in which case Spektrix will, to the extent possible, seek to provide forty-eight (48) hours’ notice of such maintenance and carry it out between midnight and 8 AM Eastern Time; and

5.1.2 unscheduled maintenance needs to be performed in which case Spektrix will, to the extent possible, seek to provide at least six (6) hours’ notice in advance.

6. Data Loss and Recovery

6.1 Redundancy is in place on all Spektrix’s data storage. Spektrix also backs up data regularly onsite and offsite. In the unlikely event that the redundancy fails, Spektrix will restore the data to the latest backup.

Appendix B: Spektrix Data Processing Agreement

This Data Processing Agreement (“ DPA ”) forms part of the Agreement between the Client and Spektrix for the provision of certain Services by Spektrix to the Client, and reflects what the parties have agreed in relation to the Processing of Personal Information. All capitalised terms not defined herein shall have the meaning set forth in the Agreement.

In the course of providing the Services to the Client pursuant to the Agreement, Spektrix may Process Personal Information on behalf of the Client (as further detailed in Schedule 1) and the parties agree to comply with the following provisions with respect to any Personal Information, each acting reasonably and in good faith.

DATA PROCESSING TERMS

1. DEFINITIONS

“Affiliate”

“Canadian Data Protection Laws”

“Data Controller”

“Data Processor”

“Data Protection Laws”

“Data Subject”

“Personal Information”

“Processing”

“Security and Privacy Policy”

“Sensitive Personal Information”

“ Spektrix Support Services”

“Sub-processor”

“Third Party Applications”

2. PROCESSING OF PERSONAL INFORMATION

2.1 The parties acknowledge and agree that in respect of Processing of Personal Information the Client is the Data Controller, Spektrix is the Data Processor, and Spektrix will engage Sub -processors pursuant to this DPA. For the purposes of Canadian Data Protection Laws, the Client remains responsible and accountable for Personal Personal Information processed by Spektrix on the Client’s behalf.

2.2 The Client shall, in its use of the Services, Process Personal Information in accordance with the requirements of the Data Protection Laws and shall ensure that any instructions provided to Spektrix for the Processing of Personal Information shall comply with Data Protection Laws.

2.3 The Client shall be responsible for ensuring the Personal Information provided by the Client to be processed by Spektrix pursuant to the Agreement is Processed on lawful grounds.

2.4 Each party must immediately notify the other if it becomes aware of a complaint or allegation of breach of the Data Protection Laws by any person or an investigation or enforcement action by a regulatory authority, in connection with the Agreement.

2.5 Spektrix shall, to the extent required by applicable Data Protection Laws:

2.5.1 not access or use the Personal Information except as necessary to provide the Services, and shall only Process such Personal Information in accordance with this DPA and only on the Client’s instructions;

2.5.2 implement appropriate technical and organisational measures to protect any Personal Information against unauthorised or unlawful Processing and accidental loss, disclosure, access or damage, including those measures set out in the Security and Privacy Policy;

2.5.3 cooperate and provide reasonable assistance to the Client in connection with the Client’s compliance with the Data Protection Laws insofar as it relates to the Services. This may include assistance with: (i) responding to requests from individuals or authorities, (ii) notifying data breaches to affected individuals or authorities; and (iii) carrying out data protection impact assessments;

2.5.4 delete or return to the Client all Personal Information upon the Client’s request or in accordance with Schedule 1 on termination or expiry of the Agreement, unless otherwise required under applicable laws;

2.5.5 ensure that persons authorised to access the Personal Information are subject to confidentiality obligations, whether by contract or statute;

2.5.6 as soon as reasonably practicable and without undue delay after becoming aware, promptly notify the Client in writing of any breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Information. The notice will specify: (i) the categories and number of individuals concerned; (ii) the categories and number of records involved; (iii) the likely consequences of the breach; and (iv) any steps taken to mitigate and address the breach;

2.5.7 maintain records of security incidents/confidentiality incidents affecting Personal Information and, upon request, provide the Client with information reasonably required to meet the Client’s legal obligations;

2.5.8 give the Client access during normal working hours to audit any relevant records and materials held by Spektrix which are necessary to demonstrate compliance by Spektrix with its obligations under this DPA. To the extent permissible under Data Protection Laws, the Client shall: (i) reimburse Spektrix for any reasonable costs incurred in relation to any audit requested by the Client; and (ii) take all steps necessary to minimise the disruption to Spektrix’s business.

2.6 For the avoidance of doubt, Spektrix shall be entitled to collect anonymous and/or aggregated data regarding the Client’s use of the Services, provided that no individual natural person can be identified from such data (“ Aggregate Data ”). Spektrix shall own all right, title and interest in and to the Aggregate Data and Spektrix shall not be required to process such data in accordance with this DPA.

3. SUB-PROCESSORS

3.1 Subject to clause 3.3, the Client hereby acknowledges and agrees that Spektrix may engage third party Sub-processors in connection with the provision of the Services. The Client may access a current list of Spektrix’s Sub-processors for the Services via Spektrix Support Services (“ Sub-processor List ”), which the Client acknowledges and accepts.

3.2 Spektrix shall notify the Client of any new Sub-processors by updating the Sub-processor List and notifying the Client by email before authorising the new Sub-processor to Process Personal Information in connection with the Services provided to the Client. The Client may object to Spektrix’s use of a new Sub-processor by notifying Spektrix promptly in writing within five (5) business days after receipt of Spektrix’s notice. In the event the Client objects to a new Sub-processor, Spektrix will use reasonable efforts to make available to this Client a change in the Services to avoid Processing of Personal Information by the objected-to new Sub-processor without unreasonably burdening the Client. If Spektrix is unable to make available such change within a reasonable period of time, which shall not exceed thirty (30) days, the Client may terminate the Agreement with respect only to those Services which cannot be provided by Spektrix without the use of the objected-to Sub-processor, by providing written notice to Spektrix.

3.3 Spektrix confirms that it has entered into or (as the case may be) will enter into a written agreement with any Sub-processor incorporating terms which are no less protective than those set out in this Agreement to the extent applicable to the nature of the Services provided by such Sub-processor. Spektrix shall remain liable for the acts and omissions of its Sub-processors to the same extent Spektrix would be liable if performing the services of each Sub-processor directly under the terms of this DPA.

4. THIRD PARTY APPLICATIONS

The Client acknowledges and accepts that Third Party Applications may have access to Personal Information where they have been integrated with the Services directly by the Client or on its instruction. In respect of such Third Party Applications, the Processing of any Personal Information by the relevant third party processor shall be governed by the agreement entered into between the Client and the relevant third party processor. This includes, but is not limited to, Processing carried out by payment service providers, email marketing platforms, data aggregators and web agencies. Spektrix shall not be responsible for any loss, corruption, unauthorised use or disclosure of Personal Information to the extent caused by such third party processors or as a result of the Client’s use of any Third Party Applications.

5. INTERNATIONAL TRANSFERS

5.1 The Client acknowledges and agrees that, in order to provide the Services (including 24/7 technical support and system administration), Spektrix may transfer Personal Information to, or permit access to Personal Information by, its Affiliates and authorised sub-processors located outside Canada, including but not limited to the United Kingdom, United States, Australia, and the countries in the European Union.

5.2 Spektrix shall ensure that any transfer of Personal Information outside Canada is subject to contractual and other appropriate safeguards designed to provide a level of protection that is comparable to that required under applicable Data Protection Laws, having regard to the sensitivity of the Personal Information and the risks associated with the transfer. Spektrix shall assist the Client, upon request, with information reasonably required to assess the privacy risks associated with such transfers.

5.3 Spektrix shall only transfer Personal Information outside Canada in accordance with this DPA and applicable Data Protection Laws.

6. LIMITATION OF LIABILITY

Each party’s liability arising out of or related to this DPA, whether in contract, tort (including negligence), for breach of statutory duty or otherwise, is subject to the limitations of liability contained within the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party under the Agreement and this DPA together.

7. HOW THE CLIENT MAY COMPLAIN IF IT HAS CONCERNS ABOUT HOW PERSONAL INFORMATION IS MANAGED

7.1 If the Client has concerns or a complaint regarding Spektrix’s Processing of Personal Data/Personal Information, the Client may contact Spektrix using the contact details in Clause 8. Spektrix will investigate and respond within a reasonable time.

7.2 Nothing in this DPA limits the Client’s or any individual’s right to raise a concern with an applicable privacy regulator.

8. HOW TO CONTACT SPEKTRIX

If the Client has any questions about this DPA, if it wishes to complain about how Spektrix has Processed Personal Information or if it wishes to access or correct its Personal Information, please contact Spektrix’s privacy officer on:

Email: DPO@spektrix.com

Mail: Spektrix Canada Ltd.,

1900 520 – 3rd Ave SW,

Calgary AB T2P 0R3

Attention: Spektrix Privacy Officer

SCHEDULE 1 – PROCESSING ACTIVITIES

Data Subjects

The Personal Information processed shall concern the following categories of Data Subjects:

Individual customers of the Client

 

Categories of data

The Personal Information processed shall concern the following categories of data:

Information submitted by or on behalf of the Data Subject as part of use of the Services. This will include, but not be limited to, the following:

Name

Address

Telephone numbers

Email address

Bank card details

 

Special categories of data (if appropriate)

The Personal Information processed shall concern the following special categories of data:

Spektrix does not include standard data fields for special categories of Personal Information; however, users can create their own custom fields which could include special categories of data as defined by the applicable Data Protection Laws.

 

Processing operations and duration of processing

The Personal Information processed will be subject to the following basic processing activities:

The Personal Information shall be processed for the Client in respect of certain Services provided by Spektrix to the Client pursuant to the Agreement including but not limited to (a) the marketing and sale of tickets and merchandise; and (b) the solicitation and receipt of donations; and (c) the maintenance of records required to do so effectively.

Spektrix shall process the Personal Information in accordance with the Client’s instructions from time to time and shall not process the Personal Information for any purpose other than those expressly authorised by the Client or as set out in the Agreement.