Definitions. The “Content Channels” mean the websites, mobile applications, blogs, emails, newsletters, social media posts, and other content channels operated and/or utilised by Eventbrite. “Featured Content” means the artwork, text, graphics and media files featuring Advertiser and Advertiser’s events for publication in Content Channels. “Promoted Listings Services” means Eventbrite’s incorporation, display, and publication of Featured Content in Content Channels, in the manner specified by the Advertiser when purchasing Promoted Listings Services through the promoted listings platform available within the Eventbrite website (“Promoted Listings Platform”) or as otherwise mutually agreed upon by Eventbrite and Organiser in writing. Eventbrite may partner with a third-party vendor to offer the Promoted Listings Platform. Unless otherwise expressly stated in writing or in the Promoted Listings Platform, the Promoted Listings Services do not include any guaranteed number of impressions, sales, leads generated, or leads closed. “Confidential Information” means any non-public business or technical information of Eventbrite, including, without limitation, information relating to business processes, operations, product and services plans, costs, prices, marketing plans, business opportunities, personnel, research, development or know-how, which: (i) if disclosed in writing, is identified or marked as “confidential” by Eventbrite at the time of disclosure; or (ii) if disclosed in any other manner, under the circumstances of disclosure or due to the nature of the information, a person exercising reasonable business judgment would understand such information to be confidential or proprietary.
In order to use the Promoted Listings Platform, Advertiser must provide Eventbrite with a valid credit card. Advertiser acknowledges and agrees that Eventbrite will charge Advertiser’s credit card the full amount Advertiser indicates as its total budget (“Budgeted Amount”) for any given use of the Promoted Listings Services at the time such Budgeted Amount is initially submitted to Eventbrite. In the event Eventbrite is unable to deliver a number of impressions equal to the Budgeted Amount, determined in Eventbrite’s sole discretion, Eventbrite may refund any unused portion of the Budgeted Amount, or allow Advertiser to apply such amount to a future use of the Promoted Listings Services. All fees payable under this Agreement are net amounts and are payable in full, without deductions for any sales, use, excise, value-added, withholding or similar taxes or duties that may be applicable. Eventbrite may, without prejudice to any other rights or remedies, at its option, charge Advertiser interest on any past due payments at one and one half (1.5%) percent per month, calculated in US dollars, or the maximum rate permitted by law, whichever is less, and additionally charge all expenses of recovery.
3. Featured Content.
Advertiser agrees to (i) deliver to Eventbrite any materials required by Eventbrite to publish the Featured Content; and/or (ii) approve the Featured Content submitted by Eventbrite at least ten (10) business days prior to the scheduled date of publication of the Featured Content. In the event that Advertiser fails to provide such materials or approve any Featured Content as required under this Section: (a) Eventbrite may, at its discretion, modify the date of the Featured Content’s publication or terminate the Promoted Listing Services for such Featured Content; (b) Eventbrite will not be liable to Advertiser or any third party for any delay or failure in the performance of the Promoted Listings Services; and (c) to the extent that Eventbrite is required to expend time, effort, or resources in order to complete or finalize the Featured Content, Advertiser agrees to reimburse Eventbrite for such costs, as invoiced to Advertiser on a time and materials basis. Content requested by Advertiser from Eventbrite is to be submitted in web-optimised jpg format with pixel dimensions necessary for optimal resolution within the Content Channel, or as otherwise specified by Eventbrite. Any files that are submitted that do not meet Eventbrite’s basic specifications may be subject to editing fees. Eventbrite reserves the right to reject any content Advertiser submits for Featured Content and Eventbrite has final approval rights over all Featured Content. The Featured Content will be distinguished in the Content Channels as paid or prompted content, and Eventbrite retains full discretion over the content surrounding the Featured Content. Advertiser acknowledges that absent a written agreement otherwise, Featured Content may be displayed in proximate distance to substantially similar or competing content sponsored by a third party.
4. Intellectual Property; Licence.
As between Advertiser and Eventbrite: (i) Advertiser owns and retains all right, title and interest in and to the content it provides to Eventbrite for the Featured Content, and all intellectual property rights therein; and (ii) Eventbrite owns and retains all right, title and interest in (a) any content it provides to the Featured Content excluding any of Advertiser’s intellectual property rights therein; and (b) to the Content Channels, and all intellectual property rights therein. Advertiser hereby grants to Eventbrite a royalty-free, worldwide, non-exclusive licence to use, perform, distribute, display, transmit, modify, and reproduce the Featured Content as reasonably required to enable Eventbrite to perform the Promoted Listings Services.
5. Term and Termination.
The term of this Agreement will begin on the Effective Date, and unless earlier terminated, will automatically expire upon the earlier of (a) each party’s fulfillment of its obligations as requested by the Advertiser within the Promoted Listings Platform; or (b) Eventbrite’s termination or suspension of the Promoted Listings Services. Either party may terminate this Agreement if the other party breaches any material term hereof and fails to cure such breach within thirty (30) days following written notice to such party. Upon the expiration or termination of this Agreement: (i) all amounts Advertiser owes to Eventbrite that have not yet been paid will become immediately due and payable; and (ii) Eventbrite’s obligation to perform the Promoted Listings Services will immediately expire. If Advertiser terminates (or attempts to terminate) this Agreement for any reason other than Eventbrite’s breach, Advertiser will still owe Eventbrite all fees stated in the Promoted Listings Platform, and all such fees will become immediately due and payable, even if the Promoted Listings Services associated with such fees have not yet been performed. Eventbrite may terminate any entry in the Promoted Listings Platform at any time by providing written notice to Advertiser.
6. Representation and Warranties.
(a) Each party represents and warrants to the other that (i) it is duly organised, validly existing and in good standing under the laws of the state of its formation; (ii) it has all requisite power and authority to enter into this Agreement and to carry out the transactions stated in this Agreement; (iii) the entering into and performing of this Agreement will not result in any breach of, or constitute default under, any agreement to which it is a party; and (iv) the undersigned for each party has the full right, legal power and actual authority to bind such party to this Agreement.
(b) Advertiser represents and warrants that (i) it owns, or has obtained, all rights, title, and licences (including, without limitation, any third party permissions and consents) necessary to provide the Featured Content to Eventbrite, and to enable Eventbrite to perform the Promoted Listings Services without the requirement of paying any additional fees, royalties, or compensation to any third party; (ii) it’s Featured Content complies with all applicable laws, rules, and regulations; (iii) it’s Featured Content complies with the terms of this Agreement and Eventbrite’s Promoted Listings Content Guidelines; and (iv) Advertiser in good faith intends for the event advertised within the Featured Content to take place as stated in such Featured Content, and Advertiser agrees to notify Eventbrite immediately if it knows, or has reason to believe, that the foregoing representation and warranty may no longer be accurate. Advertiser acknowledges and agrees that, as between Advertiser and Eventbrite, Advertiser will be solely responsible for the events or services Advertiser is Promoted Listings under this Agreement, and that Eventbrite will have no liability with respect thereto.
7. Disclaimer of Warranties.
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, EVENTBRITE EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THIS AGREEMENT, THE PROMOTED LISTINGS PLATFORM, THE CONTENT CHANNELS, AND THE PROMOTED LISTINGS SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. EVENTBRITE MAKES NO GUARANTEES CONCERNING THE ULTIMATE VALUE TO ADVERTISER OF THE PROMOTED LISTINGS SERVICES.
Advertiser agrees to indemnify, defend, and hold harmless Eventbrite from and against all claims, proceedings, demands, damages, costs, expenses, or losses (including, without limitation, court costs and attorneys’ fees) arising out of or in connection with: (i) Advertiser’s breach of this Agreement; (ii) Advertiser’s Featured Content; (iii) displaying Advertiser’s Featured Content in the Content Channels; and (iv) the events or services which are the subject of the Featured Content (including, without limitation, any warranty, liability, misrepresentation or false advertising. an event being materially not as described, personal injury, property damage, or other damages or losses which are based upon or arise out of Advertiser’s events or services).
9. Limitation of Liability.
EVENTBRITE’S TOTAL LIABILITY UNDER THIS AGREEMENT FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID TO EVENTBRITE BY ADVERTISER PURSUANT TO THE PROMOTED LISTINGS PLATFORM ENTRY(IES), LESS ANY AMOUNTS PAID TO ANY EVENTBRITE’S PROMOTED LISTINGS FULFILLMENT PARTNER, GIVING RISE TO THE LIABILITY. IN NO EVENT WILL EVENTBRITE, OR ITS PROMOTED LISTINGS FULFILLMNET PARTNER, BE LIABLE UNDER THIS AGREEMENT FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) RELATED TO THIS AGREEMENT OR THE USE OR QUALITY OF THE PROMOTED LISTINGS SERVICES, OR FOR THE COST OF PROCURING SUBSTITUTE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT EVENTBRITE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Advertiser acknowledges and agrees that this Agreement and its terms constitute Eventbrite’s Confidential Information. Advertiser covenants and agrees that Advertiser will hold in confidence and will not disclose this Agreement or its terms to any other person or entity, other than those employees, contractors or agents of Advertiser having a need to know such information in connection with exercising Advertiser’s rights or fulfilling Advertiser’s obligations under this Agreement and only insofar as such persons are bound by nondisclosure obligations consistent with this Agreement. Advertiser covenants and agrees that it will not use any Confidential Information except for the purposes of exercising Advertiser’s rights or fulfilling Advertiser’s obligations under this Agreement. Advertiser will use commercially reasonable efforts to maintain the confidentiality of the Confidential Information in its possession.
11. Governing Law and Dispute Resolution.
This Agreement will be governed by and construed in accordance with the laws of California excluding its conflicts of law rules. In the event of any dispute arising under this Agreement, the parties will, for 30 days following written notice of the dispute, use good faith efforts to resolve the dispute by mutual agreement before commencing legal action. Any legal action or proceeding arising out of this Agreement will be brought in the federal or state courts located in San Francisco, CA, and the parties hereby irrevocably consent to personal jurisdiction and venue in San Francisco.
The relationship created by this Agreement is that of independent contractors, and nothing contained in this Agreement will be deemed or construed as creating any partnership, joint venture, employment relationship, agency or other relationship between the parties. This Agreement (including the Insertion Order) constitutes the entire agreement between Eventbrite and Advertiser concerning its subject matter and supersedes all prior and contemporaneous agreements, proposals, discussions and communications (oral and written) on the subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision should be modified by the court and interpreted so as best to accomplish the objectives of the original provision, and the remaining provisions of this Agreement will remain in effect. The failure by Eventbrite to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Advertiser may not assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without Eventbrite’s prior written consent, and any attempt by you to do so without such consent shall be void and of no effect.