Standard Terms and Conditions
Spektrix UK Ltd
This Agreement is entered into by and between Spektrix Limited, c/o Withers tech, Third Floor, 20 Old Bailey, London, EC4M 7AN (Company Number: 06220078) (“Spektrix”), and the Party identified as the client in the Application Services Agreement to which this document is attached (the “Client”).
In consideration of the mutual obligations set out in this Agreement, including the provision of the Services (defined below) by Spektrix, the Parties agree to the following terms:
1 Definitions
1 Definitions
1.1 In this Agreement the following words shall have the following meanings unless otherwise expressly stated:
“Agreement” means these terms and conditions including the Schedules and any documents referred to therein together with the provisions contained within these term and conditions and the Appendices;
“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;
“Application Services” is as defined within the Schedule of the “Application Services Agreement” (ASA)
“Charges” means the charges set out in the “Charges” section of the Schedule;
“Client” means the Party identified above and includes any 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 ASA or if not specified, the date on which Spektrix starts to provide the providing the Client with access to the Services;
“Confidential Information” means any and all information which, by its nature or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as confidential to a party and includes secret, proprietary or confidential information including financial, marketing, operational 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;
“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 out in the “Initial Term” section of the Schedule;
“Intellectual Property Rights” means any current and future intellectual, industrial, statutory and other proprietary rights (including moral rights) throughout the world (whether registered or unregistered or capable of registration) including patent, copyright protected or protectable software or code right, moral right, design right, trade dress, trade or business or company name, registered industrial design, service mark, domain name, metatag, know-how, model, unregistered design, trademarks (and any application for any such right and any rights to registration of such rights) and any other intellectual property right and the goodwill therein whether created 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.
“Services” means the subscription services (including access to the Software by whatever means including via a non-chargeable demonstration) provided by Spektrix to the Client under this Agreement via the Spektrix’s Application 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 ASA. It includes Email Services;
“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 ASA;
“Spektrix’s Application Web Site” means websites within the spektrix.com domain (or any other domains notified by Spektrix to the Client 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 and Intellectual Property Rights owned or licensed by Spektrix, including, without limitation, Spektrix’s Application Web Site, the Software, the Documentation and the Reports;
“Support Services” means the services described in Appendix A;
“Term” means the Initial Term and any subsequent additional periods continuing in accordance with Clause 2.1;
“User(s)” means the number and types of users set out in the “Users” section of the ASA 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’s 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 unless terminated earlier in accordance with this Agreement shall continue for the Initial Term. Thereafter, this Agreement shall automatically renew for successive 12 month periods of (each a “Renewal Period”) unless either Party provides at least thirty (30) days prior written notice of non-renewal before the end of the Initial Term or any Renewal Period, to the other, in which case this Agreement shall terminate at the end of the then-current Term.
2.2 The Client may choose to add additional services to this Agreement during the Initial Term or during a subsequent renewal period. In this circumstance, Spektrix will provide the Client with a revised ASA that adds the additional services and unless otherwise specifically agreed in writing, the Term will not be amended by the revised ASA. Once the revised Schedule is executed, the revised ASA will supersede and replace the previous ASA. All subsequent references to the ASA shall be deemed to refer to the revised ASA if and where applicable.
3 The Services
3.1 Spektrix grants to the Client a non-exclusive, non-transferable, right to permit the Users to use the Services and the Documentation during the Term solely for the Client’s internal business operations to the extent necessary for such operations. The Client shall ensure that all Users are bound by confidentiality obligations and use restrictions no less protective than those set out in this Agreement, and the Client shall remain liable for any breach of such obligations by any User.
3.2 The Client shall be solely responsible for promptly providing, configuring and maintaining its own systems and all hardware, software and network connections necessary to enable it to connect to the internet to access Spektrix’s Application Website. 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 the 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 duration of 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 shall use reasonable endeavours to provide the Client with any amendments to the Documentation which shall be necessary to enable Client’s use of any improved facilities and functions of the updated Services and/or Spektrix’s Application Web Site
3.4.1 Spektrix may use third-party service providers in connection with the provision of the Services. Spektrix remains responsible for such third parties where they are used to perform its obligations under this Agreement, expect where responsibility is allocated to the Client under a direct agreement Details of such third-party services are set out in the ASA. Specific compliance obligations relating to the use of integrated third-party services may be imposed on the Client under annexes, schedules, or flow-down terms forming part of this Agreement.
4 Client Obligations
4.1 The Client acknowledges that on 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 payment of VAT and, in doing so, complying with all applicable laws and regulations;
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):
4.3 not to disseminate, share, or make the Services or the Documentation available, in whole or in part and in any form (whether for sale or otherwise), to any person other than Users without Spektrix’s prior written consent. The Client shall supervise and control access to User login credentials in accordance with this Agreement and applicable law, and shall ensure that all Users comply with the terms of this Agreement.
4.3.1 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, unlawful or criminal services or products or in support of the provision of any unlawful or criminal services or products 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; and
4.3.2 not to use or copy any Spektrix Materials (except as expressly permitted by Spektrix), nor to modify, reproduce, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute any part of the Spektrix Materials in any form or media, or by any means. The Client shall not reverse compile, disassemble, reverse engineer, or otherwise reduce the Software to human-readable or perceivable form, except as expressly permitted by law.
4.4 The Client shall:
4.4.1 use the Software and Services as its sole and exclusive application for the processing of its ticket sales for the Term;
4.4.2 notify Spektrix within thirty (30) days of the Commencement Date if the User Login Details and Documentation which has been provided to Client are not in accordance with this Agreement. The Client will be deemed to accept the User Login Details and Documentation in the absence of Spektrix receipt of such notification within the thirty (30) day period;
4.4.3 notify Spektrix immediately if Client’s use of the System changes beyond that set out in the ASA;
4.4.4 save and 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, licences and permissions (including those from performers and venues) in order for the Client to use and receive the Services and Support Services; and
4.4.5 not take any action to remove or conceal any 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;
4.4.6 save and 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
4.4.7 indemnify, defend and hold harmless Spektrix and each member of the Spektrix group of companies 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 claims, damages, losses, liabilities, obligations costs and expenses (including reasonable legal fees) resulting from or arising directly or indirectly from (a) any breach of Client obligation, representation or warranty contained in this Agreement or implied by law, (b) any claim that Spektrix’s access to, or collection, storage, or use of any Client data or Client Materials or any part thereof infringes the Intellectual Property Rights or other rights of a third party, (c) any act or omission of the Client or a contractor, vendor, agent or representative of Client; (d) any false, misleading or deceptive representation or statement made by the Client in respect of the Services to any person.
4.5 The Client warrants to Spektrix that:
4.5.1 the exception and delivery of the Agreement and the performance of its obligations hereunder have been duly authorised and that the Agreement is a valid and legal agreement binding on it and enforceable in accordance with terms.
4.5.2 the tickets sold via 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 aspects (including the solicitation, advertising or marketing therefor) comply with all applicable laws and regulations.
4.6 Unless otherwise agreed in writing, 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 arising from enquiries from any third parties about the Services or any of Spektrix’s software products.
5 Spektrix’s Warranties
5.1 Spektrix 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 authorised and the Agreement is a valid and legal agreement binding on it and enforceable in accordance with its terms.
5.1.2 subject to clause 5.2, it will use commercially reasonable endeavours 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 the Documentation or Spektrix’s instructions, any modification or alteration of the Services by any party other than Spektrix or Spektrix’s duly authorised contractors or agents, or any other act or omission of any other party. 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 the Client. Notwithstanding the foregoing, Spektrix will make reasonable efforts to address issues in accordance with its support policies.
5.2 Except as expressly providing in this Agreement, all other warranties, conditions or representations (whether express of 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.
6 Charges
6.1 The Client shall pay the Charges to Spektrix by direct debit transfer in accordance with this Agreement together with VAT at the applicable rate and payment shall be made without deduction, withholding or set off or any claim or counterclaim. P
6.2 All invoices issues by Spektrix in accordance with this Agreement shall be due and payable by the Client in accordance with the ASA and this Agreement.
Without prejudice to any other right or remedy of Spektrix, if the Client fails to make any payment under this Agreement on or before the due date for payment then Spektrix shall a) be entitled to claim interest on the unpaid amount under the Late Payment of Commercial Debts (Interest) Act 1998; and b) be entitled to suspend the provision of the Services until the date of payment in full of the unpaid amount.
6.3 Spektrix shall be entitled to review the Charges on or after the start of each Renewal Period upon thirty (30) days' prior notice to the Client as specified in the “Charges” section of the ASA.
6.4 Misuse of the System: Any deliberate manipulation of sales data by the Client, including intentional underreporting of sales or failure to report sales at the correct price, shall constitute a material breach of this Agreement. In such case, Spektrix shall be entitled to suspend access to the Services and/or terminate this Agreement with immediate effect. If Spektrix becomes aware of any material inaccuracies in reported sales data that appear unintentional, Spektrix may require the Client to promptly investigate and correct the discrepancies. If the Client fails to do so within ten (10) days of notice, such failure shall be deemed a material breach entitling Spektrix to suspend or terminate the Services.
6.5 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 other third party, shall remain vested in Spektrix and/or its licensors. All Intellectual Property Rights in any data or materials provided by the Client to Spektrix shall remain vested in the Client.
7.2 Except as expressly set out in this Agreement the Client shall not acquire any right, title or interest in any of the Spektrix Materials or to any of the e Intellectual Property Rights of Spektrix or its licensors, including the Reports.
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 out in clause 7.1 and 7.2, it shall immediately, unconditionally and without compensation assign in writing 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 upon request (whenever made).
7.4 Subject to Clause 10.3, Spektrix agrees to indemnify the Client against all damages, losses, costs and expenses (including reasonable legal fees) resulting directly from a finding by an English Court that the use of the Services or the Spektrix Materials by the Client in accordance with this Agreement infringes the valid copyright or misappropriates a trade secret of a third party in the United Kingdom existing at the time that this Agreement is entered into provided that the Client:
7.4.1 gives written notice to Spektrix of any such claim of infringement or misappropriation as soon as it becomes aware of the same ; and
7.4.2 gives Spektrix sole conduct of the defence of any such claim, provides Spektrix reasonable assistance (at the cost of Spektrix) in connection with the defence and settlement of 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
7.4.3 uses its best efforts to mitigate any damages, losses, costs and expenses resulting from such claim of infringement.
7.5 In the event of a claim referenced in Clause 7.4, Spektrix shall be entitled to:
7.5.1 procure the right for the Client to continue using such Services or Spektrix Materials or infringing part thereof; or
7.5.2 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
7.5.3 replace such Services or Spektrix Materials or relevant parts thereof with non-infringing substitutes provided that the use of such substitutes do not result in a material reduction in the quality or performance of such Services or Spektrix Materials.
7.6 The Parties agree that Clause 7 contains 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 of misappropriate the Intellectual Property Rights of a third party.
8 Confidentiality
8.1 Subject to Clause 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, agents or sub-contractors, it shall be subject to confidentiality obligations equivalent to those set out 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 Clause 8.1 shall not extend to any disclosure of Confidential Information which either 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 any applicable law, or by order of a court or governmental body or authority of competent jurisdiction.
9 Data Protection
9.1 Personal data shall be processed in accordance with the Data Processing Agreement annexed at Appendix B.
10 Limitation of Liability
10.1 Notwithstanding any provision to the contrary, nothing in this Agreement shall limit or exclude Spektrix’s liability for: death; personal injury; fraud; fraudulent misrepresentation; and any liability which may not be lawfully limited or excluded.
10.2 Subject to Clause 10.4, neither Party shall be liable in any circumstances to the other Party for consequential, punitive, special or indirect losses, or the following direct losses: loss of profits; loss of revenue; economic loss; loss of business or contracts or business opportunities; loss of anticipated savings or goodwill; loss of data; whether arising from or relating to this Agreement (or any damages arising from a claom by a third party for any of the above losses) whether in contract, statute, tort (including without limitation, negligence), or otherwise even if such loss was reasonably foreseeable or such Party was advised of the possibility of the same.
10.3 Subject to Clauses 10.1, 10.2, and 10.4:
10.3.1 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 without limitation 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 received by Spektrix; and
10.3.2 In furtherance of the above limitation, the liability of Spektrix for all claims arising from a single event or series of events under this or in connection with this Agreement, including for any indemnification hereunder, whether arising under contract, stature, tort (including negligence) or otherwise, shall be further limited solely to the charges actually paid to the Spektrix to 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 shall exclude or limit the Client’s obligation to pay the Charges and damages and costs under any indemnification in favour of Spektrix.
10.5 The Charges have been calculated on the basis that each Party will exclude and limit its liability as set out 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 acts or omissions of the Client; 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 an 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 publicising 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: in
11.1.1 the breach is not capable of remedy; or
11.1.2 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) materials breaches within any rolling twelve (12) month period, the non-breaching Party may terminate this Agreement immediately, without further notice or cure period.
Notwithstanding the above, 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), Section 8 (Confidentiality) Section 14 (Assignment), Section 17 (Export Control Compliance) or the DotDigital Flow Down Terms.
11.2 Either Party may terminate this Agreement immediately upon notice in writing to the other Party (the “Defaulting Party”) in the event that the Defaulting Party files a petition or has a bona fide petition presented by a creditor for its winding up; convenes a meeting to pass a resolution for its liquidation, dissolution or winding up,; shall enter into any administration or liquidation (other than for the purposes of a bona fide reconstruction or amalgamation), calls a meeting of its creditors; has a receiver of all or any of its undertakings or assets appointed; if such Party is insolvent or unable to pay its debts when due or admits the same; is deemed by virtue of the relevant statutory provisions under the applicable law to be unable to pay its debts; or such Party discontinues its business or ceases to operate as a going concern.
11.3 Spektrix shall be entitled to terminate the Agreement immediately in the event that the Client is in breach of its obligations in Clause 4, or the Client fails to pay the Charges when due in accordance with 6.1 and 6.2 of this Agreement;
11.4 Either Party may terminate this Agreement any time by giving thirty (30) days prior written notice of termination.
11.5 If the Client terminates the Agreement under Section 11.3 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 Upon termination of this Agreement, the provisions of Clauses 1, and 4 to 22 inclusive shall continue in full force and effect, as shall all other provisions which are expressed to or intended to survive termination, and all such provisions shall thus continue in full force and effect.
12.3 Client shall make no further use of any of Spektrix property, the Spektrix Materials or 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 endeavours 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). The data will provided in Spektrix’s standard interchange format used for client offboarding. Spektrix may charge the Client for time spent on 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 licences granted by Spektrix to the Client under this Agreement will immediately terminate.
12.6 Upon termination of this Agreement, each Party shall make no further use of the other Party’s property, including any materials, services, Intellectual Property Rights, or Confidential Information belong to the other Party. Without limitation, the Client shall make no further use of any Spektrix property including the Spektrix Materials, the Services, Spektrix’s Intellectual Property Rights, or Spektrix’s Confidential Information; and Spektrix shall make no further use of any Client Materials, Client Data or Client Confidential Information other than as indicated in this Clause 12.
13 Force Majeure
13.1 If either Party (the “Affected Party”) is prevented, hindered, or delayed in performing any of its obligations under this Agreement by reason of an event beyond its reasonable control including but not limited to acts of God, pandemic, epidemic, government shutdown, civil unrest or venue closures (“Force Majeure”), such failure or delay shall not constitute a breach of this Agreement.
13.2 The obligations of the Affected Party shall be suspended for the duration of the Force Majeure event, provided that the Affected Party promptly notifies the other Party of the nature and expectation duration of the event and uses reasonable efforts to resume performance as soon as possible.
13.3 For clarity, Client’s payment obligations shall not be automatically excused by a Force Majeure event. However, if the Force Majeure event materially prevents the Client from holding events or selling tickets for continuous period of thirty (30) days or more, the Parties agree to enter good faith discussions to temporarily rescope the Services and Charges where feasible.
13.4 If such Force Majeure continues for a period of three (3) consecutive months or more, either Party may terminate this Agreement upon written notice to the other Party. In such case, the Client shall pay to Spektrix 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 and Sub-contracting
14.1 The Client shall not assign, delegate, sub-contract, 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, sub-contract, transfer 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 Clause 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 within ten (10) days of such proposal, Spektrix shall be entitled to terminate this Agreement immediately on notice. For the purposes of this Clause “change of control” shall occur where (a) there has been a change of ownership of shares in the Client resulting overall in more than 50% of the total voting rights conferred by all such shares being held directly or indirectly by a person who did not hold 50% of the voting rights as 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 Contracts (Rights of Third Parties) Act 1999
15.1 This Agreement is not intend any third party to have any rights or benefits under this Agreement. The parties therefore agree that no third party shall have the right to enforce any term of this Agreement.
16 No Partnership
16.1 Nothing in this Agreement shall create, or be deemed to create, a partnership or joint venture or relationship of employer and employee or principal and agent between the Parties to this Agreement. Neither Party shall have the authority to contract for or bind the other Party in any manner.
17 Export Control Compliance
17.1 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.
18 Variations
18.1 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 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 between the Parties. Spektrix shall notify the Client of any changes in accordance with this clause 18.1 and Client’s continued use of the Services will confirm the Client’s acceptance of the revised Agreement.
18.2 Any material change to the terms of this Agreement in accordance with clause 18.1 will be deemed accepted by the Client and binding on it unless Spektrix receives written notification within ten (10) 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.
19 Severability
19.1 If at any time any part of this Agreement is found to be invalid or unenforceable under applicable law, such determination if 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 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
20.1 No provision of the Agreement shall be waived unless agreed 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 construed as a waiver thereof. No waiver by any Party shall operate or be construed as a 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 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 communications 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 express or implied by statute, common 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 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 a Party’s liability for fraudulent misrepresentations.
22 Notices
22.1 Any notices or communications concerning this Agreement (except for communications relating to the Services for which email is sufficient) should be in writing and served by prepaid first class post or by courier and shall be deemed to have been given five (5) business days following posting or to have been given one (1) day after being sent by overnight courier and shall be directed to the Party at the address set forth in this Agreement or other address thereof of which the sending Party has received notice.
23 Law and Jurisdiction
23.1 This Agreement, and any dispute, controversy, proceedings or claim of whatever nature arising out of or in any way relating to this Agreement (including noncontractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales and shall be subject to the exclusive jurisdiction of the English and Welsh Courts.
Appendix A: Support Services
1 Classification of Problems
1.1 Emergency Problems - Problems which Spektrix will classify as Emergency Problems are as follows:
(a) total failure of the Services and a total inability to access Spektrix’s Application Web Site; or
(b) problems of a critical nature rendering a key component or purpose of the system inoperable and needing to be resolved very quickly. Examples include selling and printing tickets, retrieving information about orders, website functionality.
Non-Business Critical Classification – Any Problems which do not fall under the Emergency Problem classification referred to in paragraph 1.1 (a) and (b) above will be classified by Spektrix as Non-Business Critical Problems.
2 Error Correction
2.1 Subject to Section 4 of Appendix A (Excluded Services), if the Client shall discover that the Services fail to function in accordance with the Documentation then the Client shall within 7 days after such discovery notify Spektrix by email to support@spektrix.com of the defect or error (“Problem”) in question and provide Spektrix (so far as the Client is able) with a documented example of such Problem.
2.2 Spektrix will classify Problems which are notified to it as either an ‘Emergency Problem’ or a ‘Non-Business Critical Problem’ and the times by which Spektrix will respond to such problems are set out in Paragraph 3 below.
3 Response Times
3.1 Emergency Problem Response Times – Response times for Emergency Problems in accordance with paragraph 1.1 (a) and (b) above shall be within 30 minutes of receiving notification of an Emergency Problem, provided that Spektrix receives such notification between the hours of 9am and 9pm, Monday to Sunday.
3.2 Non-Business Critical Problem Response Times – If Spektrix receives notification of a Non-Business Critical Problem between 10am and 6pm, Monday to Friday excluding bank and public holidays, it will send out an email to the email address it has on file for the Client confirming that a ticket has been created and 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. If the Client has an urgent request, it should make Spektrix support staff aware by calling the support department on 020 7183 3586.
3.3 After receiving notification of either an Emergency Problem or Non-Business Critical Problem Spektrix shall use its reasonable endeavours to correct such Problem within a reasonable period of time. To the extent possible, upon fixing such Problem, Spektrix shall notify the Client that the Services and /or Spektrix’s Application Web Site have 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 in respect of:
4.1.1 incorrect use of Spektrix’s Application Web Site and Software or an operator error;
4.1.2 defects or errors caused by the use of Spektrix’s Application Web Site and Software on or with a system not approved in writing by Spektrix; and
4.1.3 requests for support made by users of the Client trying to buy tickets or other items from the Client via 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 shall be entitled to refuse to provide a Client with on-site and/or off-site support and training if in Spektrix sole opinion such level has been exceeded by that Client.
4.3 Spektrix shall make an additional charge in accordance with its standard scale of charges from time to time in force for any services which Spektrix agrees to provide:
4.1.4 at the request of the Client which are excluded from the Support Services; or
4.1.5 at the request of the Client but which Spektrix finds are not necessary. For the avoidance of doubt nothing in this paragraph shall impose any obligation on Spektrix to provide services in respect of any of the exclusions referred to in this Agreement.
4.1.6 Spektrix shall not unless otherwise expressly agreed in writing, provide the Client with:
4.1.7 consultancy services or advice beyond the scope of this Agreement;
4.1.8 support of any of the Client’s other systems.
5 Service Availability
5.1 Spektrix will aim to maintain service availability 100% of the time except for when:
5.1.1 planned maintenance needs to be performed in which case Spektrix will endeavour to give 48 hours’ notice of such maintenance and carry it out between midnight and 8 am.UK time; and
5.1.2 unscheduled maintenance needs to be performed in which case Spektrix will, to the extent possible, endeavour to give the Client at least 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 Data. 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 Data 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 Data, each acting reasonably and in good faith.
DATA PROCESSING TERMS
1 DEFINITIONS
“Data Controller” means the entity which determines the purpose and means of Processing of Personal Data.
“Data Processor” means the entity which Processes Personal Data on behalf of the Data Controller.
“Data Protection Laws” means all laws and regulations, including the United Kingdom Data Protection Act 2018 and Regulation (EU) 2016/679 (General Data Protection Regulation) (“GDPR”) and any successor legislation, applicable to the Processing of Personal Data under the Agreement, as amended or updated from time to time.
“Data Subject” means the identified or identifiable natural person to whom Personal Data relates.
“Personal Data” means any information relating to an identified or identifiable natural person which is submitted by the Client in respect of the provision and use of the Services. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Process” and “Processing” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Security and Privacy Policy” means the Security and Privacy Policy applicable to the specific Services purchased by the Client, as updated from time to time, and accessible via Spektrix Support Services or as otherwise made reasonably available by Spektrix.
“Spektrix” means Spektrix Limited, a company registered in England and Wales, with company number 06220078.
“Sub-processor” means any Data Processor engaged by Spektrix.
“Third Party Applications” means any applications or software products or services that interoperate with the Services but which are not provided by Spektrix.
2 PROCESSING OF PERSONAL DATA
2.1 The Parties acknowledge and agree that in respect of Processing of Personal Data: (i) the Client is the Data Controller; and (ii) Spektrix is the Data Processor; and (iii) Spektrix will engage Sub -processors pursuant to this DPA.
2.2 The Client shall, in its use of the Services, Process Personal Data in accordance with the requirements of the Data Protection Laws and shall ensure that any instructions provided to Spektrix for the Processing of Personal Data shall comply with Data Protection Laws.
2.3 The Client shall be responsible for ensuring the Personal Data 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 Data except as necessary to provide the Services, and shall only Process such Personal Data 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 Data 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 Data 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 Data are subject to confidentiality obligations, whether by contract or statute;
2.5.6 as soon as reasonably practicable, 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 Data. 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 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 Data 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 Data 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
4.1 The Client acknowledges and accepts that Third Party Applications may have access to Personal Data 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 Data 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 Data 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 Spektrix may transfer or provide access to Personal Data to its affiliate Spektrix Inc in the United States Spektrix Canada Ltd in Canada and Australia Pty Ltd and Spektrix Australia Pty Ltd in Australia in order to provide technical support services. Spektrix makes this data transfer in accordance with applicable Data Protection Laws (via the operation of EU and UK approved Standard Contractual Clauses).
5.2 Except as set out above, Spektrix shall not transfer Personal Data from the UK or the EEA to any other country outside of the EEA without prior written consent from the Client, except for transfers to and from: (i) any country which has a valid adequacy decision from the European Commission or the United Kingdom (as applicable); or (ii) any organisation which ensures an adequate level of protection in accordance with the applicable Data Protection Laws; or (iii) otherwise in accordance with the applicable Data Protection Laws.
6 LIMITATION OF LIABILITY
6.1 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.
APPENDIX 1: PROCESSING ACTIVITIES
Data Subjects
The Personal Data processed shall concern the following categories of Data Subjects:
Individual customers of the Client
Categories of data
The Personal Data 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 Data processed shall concern the following special categories of data:
Spektrix does not include standard data fields for special categories of Personal Data; 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 Data processed will be subject to the following basic processing activities:
The Personal Data 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 Data in accordance with the Client’s instructions from time to time and shall not process the Personal Data for any purpose other than those expressly authorised by the Client or as set out in the Agreement.