AGREEMENT FOR THE PROVISION OF SERVICES BY COMPUTICKET IN RESPECT OF A SINGLE EVENT, OR IF APPLICABLE, SERIES OF EVENTS
The Company’s terms and conditions of rendering the services, set out in this agreement as well as the attachments, contain specific provisions to limit the Company’s liability, allocate risk or liability to the Client or constitute an acknowledgement of certain facts by the Client. These terms have been set out in bold letters. The Client should pay particular attention to these terms since they limit the Client’s ability to recover losses that the Client may incur in connection with the provision of the Company’s services and matters relating thereto.
1. RECORDAL AND AGENCY
1.1 Computicket (Proprietary) Limited ("Computicket") shall, in terms of this Agreement, provide the services set out in this agreement and the annexures hereto (the “Services”) to Client.
1.2 In providing the Services Computicket acts as agent for Client and accepts no responsibility or liability for or on behalf of or jointly or severally with Client whatsoever in respect of any loss, damages or injury suffered or sustained by any third party as a result of or arising from the Event; and
1.3 Client hereby indemnifies Computicket against any such third-party claim.
2. COMMENCEMENT AND DURATION OF AGREEMENT
2.1 This Agreement shall commence on the date accepted and remain open ended to allow the Client to load events (“Events”) via this website to sell via Computicket and its distribution channels.
2.2 Client may cancel this Agreement with Computicket in writing at any time, subject to the financial settlement of any or all fees and costs owed or due by Client to Computicket in respect of ticket sales made on behalf of Client via Computicket or its distribution channels.
2.3 Computicket may cancel this Agreement and/or remove an Event from the Computicket distribution channels with immediate effect, in its sole discretion and without notice or reasons provided to Client.
3. COMPUTICKET CHARGES
In consideration for the provision of the services, Client shall pay to Computicket:
3.1 A 4.5% (four point five percent) Commission which is inclusive of the bank charges on all ticket sales made via the self-service system, on the Client’s ticket price as sold to the public.
3.2 For any refund transactions, a R10 (ten Rand) administration fee and 2.5% (two point five percent) bank charge fee.
3.3 All charges for refunds as defined in Clause 3.2 are charged in addition to the Commission defined in Clause 3.1.
3.4 All fees charged by Computicket in terms of this Clause 3 and the other provisions of this Agreement will be exclusive of value-added tax prescribed by statute.
4. TICKET PRICES
Client agrees to announce or advertise all ticket prices at the price which a ticket purchaser shall pay for the ticket inclusive of the booking fees and commissions provided for in Clause 3 above.
5. BANK CHARGES
All bank charges are included in the booking fees and commissions provided for in Clause 3 above.
6. COMPLIMENTARY TICKETS
6.1 Computicket agrees that it shall, against receipt of written instructions from Client, issue complimentary tickets.
6.2 Client shall not be entitled under any circumstances to sell any tickets which are issued by Computicket as complimentary tickets on Client's instructions. If tickets issued as complimentary tickets are sold by Client, Computicket shall be entitled to recover from Client the full fees in terms of Clause 3.2 above which, but for the tickets being issued as complimentary tickets, would become due to Computicket.
6.3 Printing of physical tickets which are not to be sold by Computicket or via any of its distribution channels will incur a printing cost of R6.10 (six rand and ten cents) per ticket. A minimum order of 300 (three hundred) tickets is applicable.
7. CLIENT’S RESPONSIBILITIES
Should Client choose to share inventory with multiple ticketing providers for an Event, Client will ensure correct capacities, approvals and allocations are provided Computicket will accept no responsibility for any inventory discrepancies which may occur from split inventory and Computicket also accepts no liability for errors, omissions, duplicate sales or loss of sales on split inventory ticket sales, irrespective of whether this was caused by Computicket’ s negligence or fault.
8. FINANCIAL SETTLEMENT
8.1 The parties agree that, unless expressly agreed to the contrary, Computicket shall effect financial settlements of monies due to Client by Electronic Fund Transfer (EFT).
8.2 Client confirms that the banking details provided are correct and that it shall advise Computicket of any change in banking details at least seven (7) days prior to the date on which a settlement to the new banking account is required to be made.
8.3 Computicket will not, under any circumstances, advance monies to Client.
8.4 Client agrees that Computicket shall be entitled to deduct all fees and other charges due by Client to Computicket, of whatsoever nature, prior to effecting the financial settlement and payment of fees due by Computicket to Client.
8.5 Client agrees that the information provided by Computicket at the time of financial settlement will be the final record of information relating to ticket sales provided by Computicket to Client.
8.6 Computicket will provide to Client all relevant VAT invoices and computerised sales documentation at time of financial settlement.
8.7 Computicket shall by close of business on the Friday of the week following the date of the Event effect financial settlement (subject to set-off in terms of this Clause 8) in respect of all tickets sold in terms of this agreement, and this shall apply in respect of individual performances or series of Events where the context so dictates, so that final settlement in respect of amounts owing by Computicket to Client in respect of any Event or performance forming part of an Event will be due only on Friday of the week after the Event or performance.
8.8 Computicket shall not make any payments to third parties on behalf of Client.
9.1 Computicket shall account to Client in respect of all tickets sold on the basis agreed to in each separate Event. Computicket shall upon completion of an Event provide Client with a statement in respect of all tickets sold during the preceding Accounting Period in respect of an Event, indicating:
9.1.1 All sales effected during the Accounting Period concerned;
9.1.2 All booking fees and other charges and expenses recoverable by Computicket in terms of the Service Terms, incurred during the Accounting Period concerned or brought forward in terms of previous statements, if applicable; and
9.2 Payment of any monies due to Client by Computicket in terms of the Service Terms shall take place on the Friday following each Accounting Period and shall:
9.2.1 be made only once the Event has actually taken place; and
9.2.2 be accompanied by the relevant tax invoice in respect of Computicket’s charges and any other applicable charges and expenses.
9.2.3 If a public holiday falls on either a Monday, Tuesday or Wednesday, payment will take place on Friday of that week.
9.3 Computicket shall not be responsible for any inaccuracies in any preliminary information which Computicket may, from time to time, furnish to Client by telephone, facsimile, e-mail, website or any other method, in respect of any ticket sales and Computicket only accepts responsibility for the final statement which accompanies payment to Client in respect of each Event.
9.4 Computicket shall, within two business days after the time of payment to Client after an Event has taken place, furnish Client with all VAT invoices and computerized sales documentation pertaining to the Event which are in the possession of Computicket at such time.
9.5 In the event of a dispute between the Parties in regard to the number of tickets sold, the amount or calculation of any Computicket Charges due to Computicket or in regard to the amount of any deduction referred to in Clause 3, a certificate by Computicket's auditors in respect of the question in issue shall be final and binding on the parties. In regard to any other accounting matter, including stock on hand, shortage of funds or otherwise, such dispute shall be referred to a joint decision of Computicket's auditors and Client's auditors:
9.5.1 who shall act as experts and not as arbitrators;
9.5.2 who shall be entitled to take advice from any person considered by them to have knowledge with reference to the matter in dispute;
9.5.3 who shall be entitled to appoint an independent auditor to act as umpire if they are unable to determine the dispute between themselves;
9.5.4 who shall be entitled to award their fees, and the fees of any umpire, incurred in the determination of the dispute, and the costs of any person referred to in Clause 9.5.2 above, in such manner and against such of the parties as they may determine; and
9.5.5 whose decision, or the decision of the umpire, as the case may be, with reference to that dispute shall be final and binding on the Parties, unless in the case of manifest error.
9.6 All money held by Computicket for Client will be deposited into a bank account and all interest accrued will be deemed to be revenue for Computicket. Under no circumstances will this interest be paid over to Client or will Client obtain any entitlement, of whatsoever nature, to such interest.
9.7 All ticket sales information, which may be provided to Client by telephone, telefacsimile, electronic means (e-mail) or any other method is strictly “Subject to Audit” and is provided for information purposes only. Only the relevant information provided by Computicket at the time of financial settlement is to be regarded as the final and definitive statement.
10. COMPLIANCE WITH STATUTES
Client undertakes to comply with all statutes and legal requirements in regard to the staging and attendance of Event(s), those that may apply to Venues and those in regard to or in connection with the sale of the tickets to such Events.
11. COMMENCEMENT OF SALES
Client agrees that, notwithstanding any press releases or advertisements released or placed by it, Computicket shall not be obliged to commence the sale of tickets for the Event to the public until it has received all the information about the Event. If Computicket does commence ticket sales without the documentation requested, this must not be construed as a waiver of its right to cease any further sales of tickets until it has received the requisite documentation.
12. CANCELLATION OF EVENT
12.1 In the event of a cancellation of an Event, Computicket, in consultation with Client, is obliged to refund the full value of the ticket for the cancelled Event to the ticket holder.
12.2 Client agrees to pay to Computicket a refund fee as agreed upon for each ticket sold.
12.3 The refund fee shall be paid by Client to Computicket within seven (7) days of Computicket’s accounting to Client of the value of refunds transacted.
12.4 Computicket shall, in its discretion, be entitled to require Client to furnish security satisfactory to Computicket for any refund fees which may become due by Client to Computicket as a result of the cancellation of the Event or any performance constituting a part of the Event.
13. POSTPONEMENT OF EVENT
13.1 If an Event or performance is postponed, Computicket shall be entitled to offer to ticket holders either a refund of the face value of the ticket or a ticket at the same face value for the alternative event or performance on the date stipulated by Client.
13.2 Computicket may, in its own discretion, deem a performance cancelled if Client fails to confirm, in writing, an alternative date for the postponed performance or Eevent within 48 Hours of the announcement of the postponement.
13.3 Client agrees that, in the event of Computicket having to refund to ticket holders the face value of any tickets, or in the event of Computicket deeming a performance cancelled in terms of Clause 13.1 above, it shall pay to Computicket refund fees mutatis mutandis in accordance with Clause 12 above.
14. PROMOTION OR ADVERTISING OF EVENT BY COMPUTICKET
Computicket shall not under any circumstances be obliged in any way to advertise or promote the Event or performance for or on behalf of Client. It is specifically recorded and hereby agreed that Computicket shall only be responsible to distribute and sell tickets to the Event and not to promote or advertise the Event on behalf of the Client.
In the event of either Party breaching any of its obligations under this Agreement and failing to remedy such breach within a period of 5 (five) working days of receipt of a written notice from the other Party requiring it to do so, then the other Party shall be entitled, without prejudice to any other right which it may have in law, to cancel this Agreement or to claim specific performance and to claim proven damages in respect of such breach.
16.1 This Agreement shall be governed, interpreted and implemented in accordance with the laws of the Republic of South Africa.
16.2 Should any dispute (other than a dispute contemplated in Clause 9.5 or a dispute in respect of which urgent relief may be obtained from a court of competent jurisdiction) arise between the Parties in the widest sense in connection with this Agreement or which relates in any way to any matter affecting the interests of the Parties in terms of this Agreement, that dispute shall first be attempted to be resolved by the respective CEO’s of the Parties and unless so resolved within 5 (five) days of referral of the dispute to the CEO’s, be referred to and be determined by arbitration in terms of this Clause, provided that a Party to the dispute has demanded the arbitration by written notice to the other Party.
16.3 A dispute referred to in Clause 16.2 shall be finally resolved in accordance with the rules of the Arbitration Foundation of Southern Africa by an arbitrator of arbitrators appointed by the Foundation.
16.4 Without derogating from the provisions of this Clause 16 or Clause 9.5, the Parties consent and submit to the jurisdiction of the High Court of South Africa, (Johannesburg Local Division) in respect of all matters pertaining to this Agreement which may be referred to a competent court.
16.5 The provisions of this Clause:
16.5.1 Constitute an irrevocable consent by the Parties to any proceedings in terms hereof and no Party shall be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by such provisions; and
16.5.2 are severable from the rest of this Agreement and shall remain in effect despite the termination of or invalidity for any reason of this Agreement.
Client hereby warrants that it is authorised to use the works of art, logos, photographs, poster designs, graphics and any other material pertaining to Events, whether in its advertisements or otherwise and to provide it to Company for display and accordingly Client hereby irrevocably and unconditionally indemnifies Company against any loss, damages and claims which may arise, in whatsoever manner, from a breach of this warranty.
18. GOVERNING LAW
This Agreement shall be governed by the laws of the Republic of South Africa and Client shall be subject to the jurisdiction of the Courts of the Republic of South Africa.
Computicket and Client recognise and record that all information contained in this Agreement, and any negotiations and dealings between the parties in regard to the Event are of a confidential nature and shall not give rise to any implied agreement in regard to future events to be subject of negotiations or agreement between the parties of a similar nature to the arrangements set out herein. Furthermore, all dealings between the parties, particularly consideration and remuneration required to be paid by Client to Computicket, and procedures or technologies employed by Computicket, any business or marketing strategies suggested or implemented by Computicket and any special conditions agreed on are to be held in the strictest of confidence and not to be disclosed to any third parties without the written consent of Computicket.
20. LIMITATION OF LIABILITY
20.1 Client shall be solely responsible for any liability arising from or in connection with the Event and neither Computicket nor any of its employees or agents shall have any liability in respect thereof, save as provided for in this Agreement. Client hereby irrevocably and unconditionally indemnifies Computicket, its employees and agents against all claims, of whatsoever nature, arising from or connected with the Event or the provision of any of the Services.
20.2 Client undertakes to comply with all applicable laws and legal requirements in regard to the staging of the Event and in regard to or in connection with the sale of the tickets to the Event, warrants to Computicket that no third party's rights in connection with the Event will be infringed, and Client hereby irrevocably and unconditionally indemnifies Computicket against any loss, claim or liability, of whatsoever nature, arising from a breach of this undertaking or warranty.
20.3 Computicket shall not be liable to Client or anyone else in respect of any claim, loss or damages, of whatsoever nature, arising from or in connection with the Services and Client hereby irrevocably and unconditionally indemnifies Computicket in respect thereof, except where it can be proved that Computicket intentionally caused any such loss or damage.
20.4 Computicket shall not be liable to Client for any interruption or breakdown in any or all of the Services from whatsoever cause arising, including but not limited to:
20.4.1 any breakdown in a service provided by internet, electricity service providers etc.;
20.4.2 any failure in or unavailability of the connectivity services provided by any Internet Service Provider to Computicket's computers;
20.4.3 a temporary suspension in the operation of Computicket’s network, its website or Call Centre services, or any part thereof, for purposes of repair, maintenance or improvement, provided that Computicket shall give notice thereof to Client as soon as it is reasonably practicable in the circumstances to do so and Computicket shall restore the operation of Computicket’s network as soon as it is reasonably possible to do so;
20.4.4 any cause whatsoever beyond the control of Computicket.
20.5 Computicket shall not be liable to Client or anyone else in respect of any ticket that purports to be a Computicket ticket that is not sold through an official Computicket outlet and/or an official Computicket agent.
20.6 Computicket shall be entitled to display a prominent notice setting out the terms and conditions on which tickets are sold by Computicket from time to time.
20.7 Client shall be obliged, unless Computicket agrees to the contrary in writing, to bring to the attention of ticket purchasers its conditions relating to refunds, exchanges and reinstatements and Computicket will not in any circumstances be liable to any ticket holder for any loss, of whatsoever nature, that the ticket holder may suffer as a result of any postponement or cancellation of the Event.
20.8 In regard to the formatting of physical tickets, security features in the tickets and the design and the printing to be superimposed on tickets on issue, Computicket undertakes to take such precautions as in its sole discretion it considers to be reasonable to guard against forgery and/or abuse resulting in unauthorized access, or attempted access, to the Event by persons holding apparently valid tickets which in fact are not properly issued. Computicket further reserves to itself the right to alter the formatting, design and security features of tickets in its discretion. This sub-Clause does not derogate from the limitation of liability in Clause 20.9 below.
20.9 Without limiting the generality of the a foregoing, Computicket shall not be liable under any circumstances, for any indirect, consequential or special loss or damages suffered by Client or any other person arising from this Agreement, and Client hereby irrevocably and unconditionally indemnifies and holds Computicket harmless against any third party claim of that nature.
20.10 Client provides the indemnities, and agrees to the other limitations of liability, in this Clause 20 subject to there having been no gross negligence or wilful malfeasance on the part of Computicket in rendering any of the Services.
21. PROVISIONS OF THE CPA
21.1 Client warrants that it is conversant with the provisions of CPA and, in particular, with regard to the provisions thereof that have a bearing upon ticket sales. In particular, and without derogating from the a foregoing, the following provisions of the CPA are acknowledged, namely, section 17 (Consumer’s right to cancel an advanced reservation, booking or order; section 47 (Overselling and overbooking) and section 49 (Notice required for certain terms and conditions).
21.2 If any activities of an unusual character or nature or that could result in serious injury or death be part of or can in any other manner relate to, form part of or be present at an Event and/or a Venue, then Client is under an obligation to inform Computicket thereof and will also inform Computicket of any action to be taken (at the cost of Client) to comply with the provisions of section 49 of CPA and, in particular, with reference to drawing the fact, nature and potential effect of the relevant risk to the attention of the consumer in a manner and form that satisfies the requirements of sub-section (3) to (5) of section 49 as well as obtaining the consumers assent to the provision or notice.
21.3 Client shall solely be responsible for the compliance with the CPA and hereby irrevocably and unconditionally indemnifies Computicket, its employees and agents against all claims of whatsoever nature arising from non-compliance with CPA or any other actions and/or claims that may arise pursuant to the provisions thereof.
22.1 For the purposes of this agreement, including the giving of notices and the serving of legal process, the parties choose domicilium citandi et executandi ("domicilium") as follows:
Computicket: Computicket House, Greenacres Office Park
Corner Barry Hertzog and Victory Roads
Client: The physical address set out on the system.
22.2 A party may at any time change its domicilium by notice in writing to the other party provided that the new domicilium is a physical address in the Republic of South Africa, such new address being effective on receipt by the addressee of such written notice.
22.3 Any notice given in connection with this Agreement shall be delivered by hand to the domicilium chosen by the relevant party or sent by telefacsimile or electronic means (e-mail; provided, however, that any notice actually received by a party shall suffice notwithstanding that some other mode of delivery was used.
22.4 A notice given as set out above shall be deemed to have been duly
22.4.1 if delivered, on the date of delivery;
22.4.2 if sent by electronic means (e-mail), on the day that the electronic means (e-mail) is transmitted;
22.4.3 in any other case, when actually received.
Client agrees that, to the extent that any information is gathered relating to a purchaser of tickets through the agency of Computicket, including but not limited to the purchaser's identity, telephone numbers, address or any other contact details of banking details, Client shall not under any circumstances use the information for any purpose other than that purpose for which the information was given by the ticket purchaser and shall also not sell or transfer the said information to any third party for whatever reason without the prior written consent of the ticket purchaser.
24.1 This Agreement, together with its Annexures constitutes the entire agreement between the parties relating to its subject matter and no other representations, warranties, conditions, promises or the like whether written or oral not contained in the Agreement shall be binding on either party.
24.2 No indulgence by either party to the other or failure strictly to enforce the terms hereof shall constitute a waiver or be capable of founding an estoppel.
24.3 No amendment or consensual cancellation hereof shall have effect unless reduced to writing and signed by both parties.
24.4 The contra proferentem principle of interpretation which requires that an agreement, in case of ambiguity, is to be interpreted against the party responsible for the drafting of the agreement shall not apply against Computicket and Client specifically waives the benefit of that principle.
To the extent necessary, the signatories of this agreement warrant that they been duly authorised to sign this agreement on behalf of their principals.