1. ACCEPTANCE OF TERMS
This service provides owners and brokers of event tickets (“Tickets” or “tickets”) with the ability to manage their respective ticket inventory on a secondary market, execute sales of such tickets, process payments for such ticket inventory and related products and services, including any related Mobile Apps (as defined below) (collectively, the “Service”). The Service is owned and operated by Optimal Distribution Group, Inc. d/b/a Optimal Ticketing (“Optimal”). Optimal permits access to and use of this Service, subject to the terms and conditions in these Terms of Service, Supplemental Agreements (as defined below), and any other policies or terms referenced or published by Optimal (collectively, the "TOS"). Optimal may, at its discretion, update the TOS at any time. You can access and review the most current version of the TOS at the URL for this page or by clicking on the “Terms of Service” link within the Service or as otherwise made available by Optimal. These TOS apply to the Service and may be supplemented and/or superseded by a Vendor Agreement, Subscription Agreement, or similar agreement (each a “Supplemental Agreement” and collectively, the “Supplemental Agreements”).
PLEASE REVIEW THE TOS CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICE WITHOUT REGISTERING, YOU AGREE TO BE BOUND BY THE TOS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU ARE ENTERING INTO THE TOS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED AND LAWFULLY ABLE TO BIND SUCH ENTITY TO THE TOS, IN WHICH CASE THE TERM “YOU” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THE TOS, YOU MAY NOT ACCESS OR USE THE SERVICE.
THE TOS REQUIRES BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THE TOS OR YOUR ACCESS TO OR USE OFTHE SERVICE, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THE TOS (EACH, A “CLAIM”), AND YOU AGREE THAT ANY SUCH CLAIM SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 18 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
You represent and warrant that you are: (i) over eighteen (18) years of age or the age of majority in our jurisdiction, whichever is greater; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Service under the laws of your country of residence or any other applicable jurisdiction.
2. PRIVACY POLICY
In addition to the TOS, the Optimal Privacy Policy governs your access to and use of the Service. You may access the Privacy Policy by clicking on the “Privacy Policy” link within the Service or as otherwise made available by Optimal.
3. GRANT OF RIGHTS
(a) Optimal grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and view pages within the Service.
(b) To the extent that the Service provides access to any online software, applications or other similar components, then Optimal grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use such components only in the form within the online platform provided by Optimal.
(c) Optimal may make available mobile apps for access to and use of certain components of the Service (collectively, “Mobile Apps”). Your access to and use of Mobile Apps is subject to the applicable end user license agreement for each app.
(d) All rights granted to you under this TOS are subject to your compliance with the TOS in all material respects and may only be exercised for your personal, non-commercial use or internal business purposes. Your access to and use of the Service must further comply in all material respects with any usage guidelines posted by Optimal.
4. REGISTRATION
(a) You may request a demo, complete and submit the contact us form fields, and generally browse the Service without registering, but most, if not all, features may not be accessible unless you register. In registering for the Service, you agree to: (i) provide true, accurate, current and complete information about yourself as prompted by the applicable Supplemental Agreements (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Optimal reasonably suspects that you have done so, Optimal may suspend or terminate your account.
(b) You may not share your account credentials (username, password, etc.) with anyone; provided, however, that if you have signed up for and are accessing and using the Service on behalf of a company or other legal entity, then other employees of such company or other legal entity may provide their user credentials with such company or other legal entity. User credentials may only be used by You or, if are accessing and using the Service on behalf of a company or other legal entity, by other employees/agents of such company or other legal entity only to extent authorized by such company or other legal entity. You are fully responsible for all activities that occur under your account. You agree to notify Optimal immediately of any unauthorized use of your account or password or any other similar breach of security.
5. FEES/SUBSCRIPTIONS/ACH AUTHORIZATIONS
(a) The Service requires a paid subscription for access (“Subscription”). The written agreement for a Subscription separately provided to you and executed to access the Service (the “Vendor Agreement“) sets forth the business terms for the Subscription, such as (but not limited to) fees, duration of access, and contact information. Your Subscription is subject to these TOS and Supplemental Agreement.
(b) Any payment not received from you when due shall incur interest at the rate of one and a half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less.
(c) In the event of persistent Denials of Entry (defined below) or Broken Orders (defined below), Optimal reserves the right to modify Subscription Fees with one (1) day written notice to you. Fees assessed by third parties (i.e. ticket exchanges) for a Denial of Entry may, at the sole election of Optimal, be passed on to You. A Denial of Entry occurs when a venue does not allow the tick purchaser into the event. A Broker Order occurs when the ticket exchange discovers one or more reasons to cancel an order.
(d) Any and all amounts payable by you under the TOS are exclusive of any value added, sales, use, excise or other similar taxes (collectively, “Taxes”) or fees assessed by the applicable ticket exchanges (“Exchange Fees”). You are solely responsible for paying all applicable Taxes. In most cases, Exchange Fees will be absorbed by the end customer. In the event a third party (i.e. ticket exchange) does not permit the pass through of Exchange Fees, Optimal reserves the right to pass the Exchanges Fees on to You. If Optimal has the legal obligation to collect any Taxes, you shall reimburse Optimal upon invoice.
(e) Optimal processes your Inventory Payments (as defined below), Subscription, Taxes, Exchange Fees, and all other fees and expenses assessed to you related to the use of the Service (collectively the “Service Fees”) electronically through the ACH Network. By using the Service and providing Your bank account information to Optimal via the ACHCredit/Debit Authorization Form (“Your Bank Account” or “Your Bank Accounts”), You authorize Optimal to debit Your Bank Account and you authorize Optimal and its affiliates to debit Your Bank Account to collect any fees owed or other amounts due to Optimal or its affiliates or to credit or transfer funds to any of Your Bank Accounts maintained with Optimal or its affiliates. Your authorization to Optimal and its affiliates extends to any bank account that you link to Optimal services (i.e. any of Your Bank Accounts). Your authorization is in complete compliance with any applicable bank debit rules, including the debit scheme authorization and mandate language included below. Your authorization to debit any of Your Bank Accounts includes the specific mandate or authorization language for the specific debit scheme that covers your bank account (e.g. for US bank accounts the ACH/Nacha language will apply). The debit scheme language for each bank scheme is incorporated into your authorization to Optimal and its affiliates to debit any of Your Bank Accounts with the same force and effect as if you had signed a paper and obtained a hard copy containing the same terms.
(f) Your Subscription shall automatically renew monthly until terminated in accordance with these TOS. Uninstalling a Mobile App, removing or delisting Ticket inventory, or being inactive on the Service will not automatically cancel your Subscription. You must cancel your Subscription by submitting a written request to support@optimalticketing.com and complete the necessary forms and ticket inventory audit. At the time of cancellation or termination, Optimal reserves the right, in its sole discretion, to withhold from Inventory Payments (as defined below) otherwise due an amount equal to the value of Service Fees (as defined below) on Tickets for events which have not occurred at the time of cancellation/termination (“Offset Payment”). The applicable balance of any Offset Payment shall be released seven (7) business days after the occurrence of the Ticket’s actual event date (including rescheduled dates).
6. YOUR RESPONSIBILITIES
(a) You are responsible for providing access to Your Ticket inventory via online portals/accounts and provide user credentials for such accounts to Optimal.
(b) You are responsible for listing Your Ticket inventory on the Service for purchase.
(c) You are responsible for listing only legally acquired Tickets with the Service.
(d) You are responsible for listing Tickets on the Service which comply with the terms of service of the applicable ticket exchanges through which Your Tickets are sold.
(e) You are responsible for ensuring Your Bank Account maintains sufficient balances to permit the charges necessary to maintain your Subscription in good standing.
(f) There are multiple reasons for Denied Entry, but due to its unpredictable nature, You will be responsible for any penalties incurred. Optimal will communicate with the applicable ticket exchange in an attempt to remove any fees/penalties, but may require additional information from You, as outlined below. In no event is Optimal obligated to facilitate the resolution of a Denied Entry claim and it makes no express or implied warranties about its assistance, should it choose to provide it. Optimal will send all applicable information to the ticket exchange and will notify You of the outcome. Possible outcomes include: (1) the ticket exchange upholds the decision that the order was Denied Entry and You will incur the associated fees, (2) You provided proof showing the order was not Denied Entry, or (3) the ticket exchange may need further information to reach a decision, which will be Your responsibility to provide to Optimal.
(g) In the event tickets are digital and provided in the medium of PDF or mobile, You are required to send a scan report to Optimal within 7 days after You were made aware of the Denied Entry claim.
(h) You are responsible for shipping Hard Stock Tickets (defined below) to Optimal at an address provided at least 7 days prior to the ticketed event. Any Hard Stock Tickets received less than seven (7) days before the event may not reach the end customer timely. You will be responsible for any fees assessed for expedited shipping and may be required to ship the tickets to the end customer directly. If the end customer does not receive the ticket(s) prior to the event, You are responsible for the cost of the tickets, as well as any penalties incurred. Hard Stock Tickets are original paper tickets and/or wristbands printed or generated by the event venue or promoter which are mailed to your physical address.
(i) The preferred method of fulfilling a Will Call Ticket (defined below) is to change the stock type to mobile. If changing the stock type is not an option, Optimal will contact the venue to change the name on the ticket from You to the end customer’s name. If neither of these options are possible, You will be responsible for timely shipping the tickets to the end customer. If the end customer does not receive the ticket(s) prior to the event, You are responsible for the cost of the tickets, as well as any penalties incurred. A Will Call Ticket is a ticket for an event generated at the applicable venue by the venue or promoter for the end customer to retrieve at or prior to the ticketed event.
(j) The ticket exchange StubHub does not allow Will Call Tickets. You will need to remove all Will Call Tickets from StubHub.
(k) A Flagged Account (defined below) may require Optimal to temporarily suspend or, if persistent, terminate your Subscription. Often, a Flagged Account will result in assessed fees by the applicable ticket exchange for which you will be responsible. Flagged Accounts result when a ticket exchange is made aware of Season Ticket Holders or Over the Limit (OTL) transactions. If a sports team or promoter discovers that You are reselling tickets, they may flag the account and revoke season tickets. If season tickets are revoked, You are responsible for notifying Optimal within three (3) days in writing so any remaining season tickets can be removed. Over The Limit (OTL) occurs when mobile tickets will not transfer due to You purchasing more inventory than the venue or promoter allows. You are responsible for noting the ticket limit when buying inventory.
(l) A Broken Order (defined below) may require Optimal to temporarily suspend or, if persistent, terminate your Subscription. A Broken Order occurs when the applicable ticket exchange discovers one or more reasons to cancel an order. Often, a Broken Order will result in assessed fees, no less than 200% of the purchase price paid for the Ticket on the exchange, by the applicable ticket exchange for which you will be responsible. The most common examples of Broken Orders are:
In the event of a Broken Order, Optimal reserves the right to develop, propose, and execute resolution for the Broken Order which could include replacement tickets, partial refunds, and other resolutions determined in the sole discretion of Optimal (each a “Broken Order Resolution”). You are responsible for paying all costs associated with each Broken Order Resolution. You acknowledge and understand that, in some cases, a Broken Ticket Resolution may cost in excess of the fees that would otherwise be assessed by the applicable ticket exchange.
(m) If you do not request Optimal to price your inventory listed on the Service, you will be responsible for pricing each ticket in inventory.
7. OPTIMAL’S RESPONSIBILITIES
(a) Optimal will process the sale and exchange of your ticket inventory, collecting purchase proceeds and debiting your Service Fees on a weekly basis (generally, Thursday) via ACH transactions (collectively, “Inventory Payments”).
(b) Optimal will monitor your ticket inventory and related transactions on the Service for no additional fee. However, in the event you request or require administrative support outside of the Service (as determined by Optimal), such as support in resolving disputes, accessing inventory, exchange account related issues, manually managing ticket inventory, and similar services, Optimal reserves the right to charge an hourly rate not to exceed $250/hr in addition to the Subscription.
(c) Upon written request, and for an additional fee to be determined at the time of the request, Optimal, in its sole discretion, may price Your inventory on the Service with the ticket exchanges you select.
8. RESPONSIBILITY FOR CONTENT
(a) You acknowledge and agree that all information, data, data records, databases, text, software, music, sounds, photographs, images, graphics, videos, messages, scripts, tags and other materials accessible through the Service, whether publicly posted or privately transmitted (“Content”), are the sole responsibility of the person from whom such Content originated. This means that you, and not Optimal, are entirely responsible for all Content that you upload, post, email, transmit or otherwise make available through the Service (“Your Content”), and other users of the Service, and not Optimal, are similarly responsible for all Content they upload, post, email, transmit or otherwise make available through the Service (“User Content”).
(b) You acknowledge and agree that Optimal has no obligation to pre-screen Content (including Your Content and User Content), although Optimal reserves the right in its sole discretion to pre-screen, refuse or remove any Content. Without limiting the generality of the foregoing sentence, Optimal shall have the right to remove any Content that violates the TOS or that it deems objectionable.
(c) To the extent that you submit any Content, you represent and warrant that: (i) you have all necessary right and authority to grant the rights set forth in the TOS with respect to Your Content; and (ii) Your Content does not violate any duty of confidentiality owed to another party, or the copyright, trademark, right of privacy, right of publicity or any other right of any other party.
(d) Portions of the Service allow you to use the Service to access, collect, store, process and transfer your data to and from third-party platforms. You may be required to provide your login or other credentials to access such third-party platform. By accessing or using such portions of the Service, you represent and warrant that you are authorized to: (i) use the login or other credentials as contemplated under this Section 6(d); (ii) access the third-party platform and the applicable data; and (iii) provide the applicable data to Optimal for processing.
9. RIGHTS TO CONTENT
(a) Optimal does not claim ownership of Your Content. However, you grant Optimal and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Your Content (in any form and any medium, whether now known or later developed) as necessary to provide the Service. You acknowledge and agree that the technical processing and transmission of data associated with the Service, including Your Content, may require: (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connecting networks or devices.
(b) Except with respect to Your Content, you acknowledge and agree that, as between you and Optimal, Optimal owns all rights, title and interest (including all intellectual property rights) in the Service and all Content and other materials within the Service. The Service is protected by U.S. and international copyright and other intellectual property laws and treaties. Optimal reserves all rights not expressly granted to you.
(c) Except with respect to Your Content, you may not: (i) use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights to the Service, except as expressly permitted under the TOS; (ii) reverse engineer, disassemble, decompile or translate, or otherwise attempt to derive the source code, architectural framework or data records of any software within or associated with the Service; (iii) frame or utilize any framing technique to enclose any Content; (iv) access the Service for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Service or any products or services offered by Optimal; (v) rent, lease, lend, sell or sublicense the Service or otherwise provide access to the Service as part of a service bureau or similar fee-for-service purpose; or (vi) remove or obscure any proprietary notice that appears within the Service.
10. USER CONDUCT
In connection with your access to or use of the Service, you shall not:
(a) upload, post, email, transmit or otherwise make available any Content that: (i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful or otherwise objectionable; (ii) may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement); (iii) infringes any patent, trademark, trade secret, copyright or other proprietary right of any party; (iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages or any other form of solicitation; (v) contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware; or (vi) consists of information that you know or have reason to know is false or inaccurate.
(b) impersonate any person or entity, including Optimal personnel, or falsely state or otherwise misrepresent your affiliation with any person or entity;
(c) forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
(d) act in a manner that negatively affects the ability of other users to access or use the Service;
(e) take any action that imposes an unreasonable or disproportionately heavy load on the Service or its infrastructure;
(f) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
(g) use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Service or substantially download, reproduce or archive any portion of the Service;
(h) sell, share, transfer, trade, loan or exploit for any commercial purpose any portion of the Service, including your user account and password (except as expressly permitted under Section 4(b)); or
(i) violate any applicable local, state, provincial, federal or international law or regulation.
11. SUGGESTIONS
If you elect to provide or make available to Optimal any suggestions, comments, ideas, improvements or other feedback relating to the Service (“Suggestions”), Optimal shall be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Suggestions in any form and any medium (whether now known or later developed), without credit or compensation to you.
12. DEALINGS WITH ADVERTISERS AND OTHER THIRD PARTIES
Your dealings with advertisers and other third parties who market, sell, buy or offer to sell or buy any goods or services on the Service, including payment for or delivery of such goods or services and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the advertiser or other third- party. You agree that Optimal shall not be liable for any damage or loss of any kind incurred as a result of any such dealings.
13. LINKS AND EXTERNAL MATERIALS
The Service or users of the Service may provide links or other connections to other websites or resources. You acknowledge and agree that Optimal does not endorse and is not responsible for any content, advertising, products, services or other materials on or available through such sites or resources (“External Materials”). External Materials are subject to different terms of use and privacy policies. You are responsible for reviewing and complying with such terms of use and privacy policies. You further acknowledge and agree that Optimal shall not be liable for any damage or loss resulting from or arising out of use of or reliance on any External Materials.
14. MODIFICATIONS TO THE SERVICE
Optimal reserves the right at any time to modify or discontinue the Service (or any portion thereof) with or without notice, and Optimal shall not be liable to you or any third party for any such modification or discontinuance; provided, however, that in the event of discontinuance, you shall be entitled to receive a pro-rated refund for the unused portion of any active Subscription.
15. INDEMNIFICATION
You shall indemnify, defend and hold Optimal and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, “Optimal Parties”) harmless from and against any claim, demand, loss, damage, cost, liability and expense, including reasonable attorneys’ fees, resulting from or arising out of your: (a) violation of the TOS or any law or regulation; or (b) violation of any rights of another party.
16. DISCLAIMER OF WARRANTIES
(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OPTIMAL PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING, BUT, NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
(b) OPTIMAL PARTIES MAKE NO WARRANTY THAT: (i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICE WILL BE ACCURATE, RELIABLE, CURRENT OR COMPLETE.
(c) ALL CONTENT MADE AVAILABLE THROUGH THE SERVICE IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL INFORMATION BEFORE TAKING OR OMITTING ANY ACTION.
17. LIMITATION OF LIABILITY
(a) YOU ACKNOWLEDGE AND AGREE THAT OPTIMAL PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR COST OF COVER, OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS, EVEN IF OPTIMAL PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL OPTIMAL PARTIES’ TOTAL LIABILITY TO YOU FOR ALL CLAIMS, DEMANDS, LOSSES, DAMAGES, COSTS, LIABILITIES, EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES, ARISING FROM OR RELATING TO THE TOS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICE (COLLECTIVELY, “CLAIMS”) EXCEED THE GREATER OF FIFTY DOLLARS ($50) OR THE AMOUNT PAID BY YOU TO OPTIMAL FOR ACCESS TO THE PORTION OF THE SERVICE AT ISSUE WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM AROSE.
(b) CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
18. SUSPENSION AND TERMINATION
(a) If you violate the TOS, Optimal may immediately suspend your access to the Service, and such suspension shall remain in effect until you have remedied all violations. You shall not be entitled to any refund with respect to any period of suspension.
(b) A Subscription may be terminated as follows: (i) for any reason or no reason by Optimal or You with seven (7) days advanced written notice to the other party and a complete audit of Your Ticket inventory; or (ii) by either party in the event of a breach of the terms of this TOS; the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business.
(c) In the event of a termination under clause (b)(i) of this Section, Optimal reserves the right to assess a termination fee based on an hourly rate to be set by Optimal in its reasonable discretion appropriately reflecting the scope of the work to be performed by Optimal for You after termination.
(d) In the event of a termination under this Section: (i) You shall provide access Your Ticket inventory via online portals/accounts and provide Your user credentials for such accounts to Optimal and (ii) Section 5(f) Offset Payments may apply in Optimal’s sole discretion.
(e) Upon termination of the TOS or any Subscription for any reason: (i) Optimal, in its sole discretion, may remove and discard Your Content; and (ii) any provision that, by its terms, is intended to survive the expiration or termination of this TOS or any Subscription shall survive such expiration or termination.
19. GOVERNING LAW
The TOS shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws and the laws of the State of Florida, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to the TOS.
20. BINDING ARBITRATION AND CLASS ACTION WAIVER
(a) ALL CLAIMS (AS DEFINED IN SECTION 17) SHALL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THE TOS AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF YOUR CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
(b) The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
(c) WE EACH AGREE THAT ALL CLAIMS (AS DEFINED IN SECTION 17) SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
(d) Notwithstanding anything to the contrary, you and Optimal may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect our intellectual property rights, whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 20.
21. LEGAL COMPLIANCE
You represent and warrant that you are not: (a) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.
22. U.S. GOVERNMENT ENTITIES
This section applies to access to or use of the Service by a branch or agency of the United States Government. The Service includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in the TOS with respect to such items, and any access to or use of the Service by the United States Government constitutes: (i) agreement by the United States Government that that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (ii) acceptance of the rights and obligations herein.
23. NO THIRD-PARTY BENEFICIARIES
You agree that, except as otherwise expressly provided in the TOS, there shall be no third-party beneficiaries to the TOS.
24. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
If you believe that your work has been made available through the Service in a way that constitutes copyright infringement, please provide Optimal’s Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Service; (d) your address, telephone number and email address; (e) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Optimal’s Agent for Notice of Copyright Claims can be reached as follows:
Optimal Distribution Group, Inc. d/b/a Optimal Ticketing
Agent for Notice of Copyright Claims
1001 Yamato Road, Suite 300W
Boca Raton, FL 33431
Phone: 725-777-0494
Email: info@optimalticketing.com
25. MOBILE APPS
(a) Platform providers, such as Apple Inc. and Google Inc., that make the Mobile App available for download (“Platform Providers”) are not parties to these TOS. Platform Providers have no obligation whatsoever to furnish any maintenance and support services with respect to the app. In the event of any failure of the app to conform to the warranties herein, you may notify the applicable Platform Provider, and such Platform Provider may refund any purchases made through the app (if applicable). To the maximum extent permitted by applicable law, Platform Providers will have no other warranty obligation whatsoever with respect to the app. You acknowledge that Platform Providers are not responsible for addressing any claims relating to the app or your possession and/or use of the app, including but not limited to: (i) product liability claims; (ii) any claim that the app fails to conform to any applicable legal or regulatory requirement; (iii) third party claims of intellectual property infringement, and (iv) claims arising under consumer protection or similar legislation. Optimal, not the Platform Providers, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. Platform Providers are third party beneficiaries of these TOS, and Platform Providers will have the right (and will be deemed to have accepted the right) to enforce these TOS against You as a third party beneficiary thereof. You represent that You are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and you are not listed on any U.S. Government list of prohibited or restricted parties.
26. GENERAL PROVISIONS
The TOS and Supplemental Agreements constitute the entire agreement between you and Optimal concerning your access to and use of the Service. It supersedes all prior or contemporaneous oral or written negotiations and agreements between you and Optimal with respect to such subject matter. Supplemental Agreements may supersede or amend these TOS only by express written provision. In the event of a direct conflict of provisions between these TOS and Supplemental Agreements, the Supplemental Agreements shall control. The TOS may not be amended by You except in a writing executed by You and an authorized representative of Optimal. Optimal may assign and/or transfer the TOS, including Supplemental Agreements, for any reason, at any time, without notice in its sole discretion. For the purposes of the TOS, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” You may not assign or delegate any right or obligation under the TOS or Supplement Agreements without the prior written consent of Optimal. The failure of Optimal to exercise or enforce any right or provision of the TOS or Supplemental Agreement shall not constitute a waiver of such right or provision. If any provision of these TOS or Supplemental Agreement is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of the TOS and/or Supplemental Agreement. Any prevention of or delay in performance by Optimal hereunder due to labor disputes, acts of god, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay.
