LAST UPDATED NOVEMBER 9, 2020
In addition to capitalized, bolded and underlined terms defined elsewhere in this Agreement (including the Cover Sheet and the Initial Event Schedule), the following terms will have the following meanings when used in this Agreement:
1.1 “Affiliate” means with respect to any party, any other entity, whether or not existing as of the Effective Date, controlling, controlled by or under common control with such party. The term "control" (including, with correlative meaning, the terms "controlled by" and "under common control with"), as used with respect to any entity, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities, by contract or otherwise.
1.2 “Analytics Platform” means the online platform, created, operated and owned by Pollen and its Affiliates, that enables Client to access Campaign Analytics and other information related to Campaigns.
1.3 “Campaign(s)” means, as to an Event, Pollen’s marketing and sales campaign(s) for that Event to be performed by Pollen as described in the applicable Event Schedule and these General Terms.
1.4 “Campaign Analytics” means data and other information about Campaigns (e.g. sales and marketing metrics, including ticket sales to-date).
1.5 “Content” means any and all text, images, photographs, audiovisual works, sound recordings, musical works (including when embodied in sound recordings or audiovisual works) and/or any other works subject to protection under the laws of the United States or any foreign jurisdiction, including, without limitation, patent, trademark, trade secret and/or copyright laws, and any other content made available to Members by Client, or by Pollen on Client’s behalf, for the purpose of the Campaign.
1.6 “Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data
1.7 “Customer(s)” means, individually and collectively, consumers of Tickets for and/or Merchandise in connection with an Event via the Sales Platform.
1.8 “Data Subject” means an identified or identifiable natural person, including any Customer.
1.9 "Data Protection Legislation" means any applicable data protection, electronic marketing and privacy legislation (as amended), including Regulation (EU) 2016/679 and any national legislation supplementing and/or implementing the same.
1.10 “Event” means an event held by Client that is promoted through a Campaign, the details of which are set forth on an Event Schedule.
1.11 “Event Date” means the first date of an Event.
1.12 “Event Schedule(s)” an event schedule for a Campaign as the parties may execute from time to time, and any addenda, exhibits or supplements thereto. To avoid doubt, the Initial Event Schedule attached as Exhibit A to the Cover Sheet is an Event Schedule.
1.13 “Link(s)” means an Internet link to the Sales Platform provided by Pollen that a Member may provide an individual who is a potential Customer in connection with an Event.
1.14 “Losses” means any and all liabilities, damages, awards, settlements, losses, claims, suits, proceedings, assertions and expenses including, without limitation, court costs, reasonable third party legal and attorney fees and third party costs of investigation.
1.15 “Member” means any individual authorized by Pollen to promote Tickets and Merchandise.
1.16 “Merchandise” means, as to an Event, merchandise related to that Event.
1.17 “Personal Data” means any information relating to a Data Subject, including, for example, identifiers including that Data Subject’s 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
1.18 “Process(ing)” means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
1.19 “Processor” means a natural or legal person, public authority, agency or other body which, Processes Personal Data on behalf of the Controller.
1.20 “Sales Platform” means the online platform, including certain Internet subdomains and corresponding mobile applications, created, operated and owned by Pollen and its Affiliates, that enables Company Pollen that enables Customers to purchase Tickets for and/or Merchandise in connection with Events.
1.21 “Services” means, as to an Event Schedule, the services to be provided by Pollen in connection with those Events as expressly set forth in that Event Schedule. To avoid doubt, Campaigns are Services.
1.22 “Social Media” means Facebook, Twitter, Instagram, YouTube, Snapchat and other social media platforms.
1.23 “Sub-processor” means a natural or legal person, public authority, agency or other body which, through multiple tiers, Processes Personal Data on behalf of the Processor.
1.24 "Term" shall have the meaning set forth in clause 10.
1.25 “Territory” means the world, unless otherwise specified in an Event Schedule.
1.26 “Ticket(s)” means, as to an Event, tickets, vouchers, and other related services for that Event.
1.27 “Use” means to download, reproduce, publicly display, publicly perform, transmit, modify, create derivative works of and otherwise use in any and all media, whether now known or hereafter created.
2.1 Event Schedules. Pollen shall provide the Services with respect to Event(s) as set forth in the Event Schedule(s) in accordance with these General Terms and the applicable Event Schedule. Each Event Schedule will be substantially in the form of the Initial Event Schedule attached as Exhibit A to the Cover Sheet. Each Event Schedule is incorporated into this Agreement by reference, and is governed by the terms of the body of these General Terms. If there is a conflict between an Event Schedule and the body of these General Terms, these General Terms will control unless the Event Schedule expressly indicates it is overriding terms of the body of this General Terms, and expressly identifies those terms. Any changes to an Event Schedule (“Change Request”) must be mutually agreed to in writing by the parties. Each Change Request is hereby incorporated into the applicable Event Schedule by reference.
2.3 Authority to Act as Agent.
2.4 Additional Rights and Obligations.
3.1 A pricing table setting out the funds to be received by each party from the sale of Tickets and Merchandise through Pollen (the "Pricing Table") will be agreed and from time to time amended in writing by the parties. Both parties will make reasonable efforts to agree the Pricing Table as soon as possible after the date of the Event Schedule.
3.2 Client hereby authorizes Pollen to sell Tickets and Merchandise at the prices set out in the Pricing Table (defined in each Event Schedule and agreed for each Event).
3.3 The Client shall promptly inform Pollen of any amendments to the prices set out in the Pricing Table that may occur from time to time.
4.1 Pollen Commission. Pollen shall be entitled to the commission set out in the Event Schedule for each Ticket and item of Merchandise sold by Members or through the Sales Platform (the "Commission").
4.2 Card Transaction Processing. If applicable, the cost of processing transactions will be borne by the Client.
4.3 Late Payment. If Client fails to pay Pollen any undisputed sums when due, in addition to all other remedies available under this Agreement or at law (which Pollen does not waive by the exercise of any right under this Section), all such payments shall bear interest at a rate that is the lesser of (a) a rate per annum equal to 2.51% calculated on the basis of a 365 day year and the actual number of days elapsed and (b) the highest rate permissible under applicable law.
4.3 Member Rewards.
5.1 Client will be responsible for, and will pay in a timely manner, all taxes and charges related to the proceeds of the Tickets or products sold pursuant to this Agreement, excluding taxes on the income of Pollen. Client shall be responsible for all determinations with respect to the collection, payment and reporting of any sales, use or other similar taxes applicable to the sale of the Tickets or products pursuant to this Agreement. Client shall give Pollen reasonable advance notice if any such taxes are required to be collected by Pollen and its agents in connection with the sale of Tickets or products pursuant to this Agreement. When Pollen has the legal obligation to pay or collect any such taxes and charges, the appropriate amount will be included in the pricing table in the Event Schedule or invoiced to Client, excluding taxes on the income of Pollen, and paid by Client within thirty (30) days of the date of invoice. Pollen, the Client and their Affiliates and agents shall have the right to deduct and withhold taxes from any payments to be made hereunder if such withholding is required by applicable law. To the extent that any of the aforementioned amounts are so withheld and paid over to the appropriate taxing authority, such withheld amounts shall be treated for all purposes of this Agreement as having been delivered and paid to the recipient of payments in respect of which such deduction and withholding was made. Client will provide Pollen with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by Pollen to establish that such taxes have been paid.
5.2 Pollen and Client shall provide each other with any necessary tax forms, including IRS Form W-9 and any similar information, in connection with payments pursuant to this Agreement.
6. Customer Service (Transactional Support only).
6.1 Whilst Members are encouraged to answer their Customers’ queries about the purchase of Tickets and/or Merchandise in the first instance, Pollen will assist with any transactional queries only.
6.2 Pollen will direct all Customer queries concerning the Event and/or the Client to the Client.
7. License and Rights Granted.
7.1 Platform License. Subject to the terms and conditions of this Agreement, during the Term, Pollen hereby grants to Client the non-exclusive, non-sublicensable (except as provided for in an Event Schedule), revocable, non-transferable, limited right and license in the Territory to (i) access and utilize the Analytics Platform solely for the purpose of viewing Campaign Analytics; and (ii) receive and otherwise access the Services.
7.2 Trademark License. Subject to the terms and conditions of this Agreement, Client grants Pollen a non-exclusive, non-sublicensable (except as set forth in clause 7.3), limited, , non-transferable, worldwide right and license to Use Client’s trademarks, trade names, trade dress, service marks and logos (the “Client Marks”) solely to the extent (i) necessary to grant the sublicense set forth in clause 7.3; or (ii) necessary for Pollen to provide the Services, to Use the Client Marks on Pollen’s website and/or in Pollen’s marketing materials, solely to identify the Client as a customer of Pollen, and in all marketing materials relating to each Event. Except as set forth in this clause 7.2, nothing contained in this Agreement will grant or will be deemed to grant to Pollen or any Member any right, title or interest in or to the Client Marks. All uses of the Client Marks and related goodwill will inure solely to Client, and Pollen will obtain no rights or goodwill with respect to any of the Client Marks, other than as expressly set forth in this Agreement, and Pollen irrevocably assigns to Client all such right, title, interest and goodwill, if any, in any of the Client Marks.
7.3 Member Licenses. Notwithstanding anything contained elsewhere in this Agreement, Client acknowledges and agrees that Pollen may grant Members a non-exclusive, non-sublicensable, non-transferable, fully paid-up worldwide right and license to (i) reproduce, incorporate and otherwise Use Client Marks at Client’s direction pursuant to a Campaign, including in Member posts on Social Media that include Content, and (ii) post Content on Social Media.
7.4 No Implied Rights. This Agreement does not authorize or permit the use of the Analytics Platform, Sales Platform, or any Pollen or Client intellectual property or technology not expressly set forth herein, and no implied licenses are granted herein. The parties reserve all rights not expressly granted to the other party hereunder.
7.5 Third Party Contractors. Each party acknowledges that the other party may use third party contractors, consultants or partners to perform the Services or exercise its rights and under this Agreement (collectively, “Third Party Contractors”). Except as otherwise set forth in this Agreement, each party will remain solely responsible to the other party for its obligations and performance under this Agreement and will bear all liability associated with all its Third Party Contractors. For the avoidance of doubt, Members are not Third Party Contractors.
8. Intellectual Property
8.1 Ownership. The parties acknowledge and agree that, as between the parties, except for the licenses granted Clause 7 and except as otherwise set forth in this Clause 8, Pollen is the exclusive owner of and retains all rights, including all proprietary and intellectual property rights existing now or in the future, of the Analytics Platform and the Services, including any and all intellectual property or work product created in connection with this Agreement. Notwithstanding the foregoing, the parties acknowledge and agree that, as between the parties, Client is the exclusive owner of the Client Marks.
8.2 Feedback. Client or its representatives may provide suggestions and feedback to Pollen in connection with this Agreement, the Analytics Platform, the Services (including any Campaign), or otherwise (“Feedback”). Client hereby grants to Pollen a nonexclusive, royalty-free, fully-paid, perpetual, irrevocable, transferable and fully sublicensable right to use the Feedback in any manner and for any purpose.
9. Data Sharing & Confidentiality.
9.1 The parties hereby acknowledge that, Pollen shall be the Controller and Client shall be the Processor in respect of Personal Data. Furthermore, Client shall:
9.1.1 only process such Personal Data as is necessary to provide the Client Operations and fulfil its obligations under the Agreement or in accordance with Pollen’s written instructions from time to time;
9.1.2. be responsible for any breach by any Sub-processor appointed by Client of any of the obligations under this Clause 9;
9.1.3 not transfer Personal Data outside the United States without Pollen’s prior express written consent in each instance;
9.1.4 as to an Event, at the end of the Term for that Event, promptly delete or return to Pollen (at Pollen’s discretion) all Personal Data save to the extent that Client is legally required to retain any Personal Data;
9.1.5 promptly comply with any reasonable request from Pollen requiring Client to amend, transfer or delete Personal Data;
9.1.6 in the event that Client receives any complaint, notice or communication (from either a competent regulator or a data subject) which relates directly to the processing of Personal Data or to Pollen’s compliance with Data Protection Legislation, Client shall notify Pollen without undue delay and it shall provide Pollen and the competent regulator (if applicable) with reasonable co-operation and assistance in relation to any such complaint, notice or communication;
9.1.7 notify Pollen without undue delay upon becoming aware of any unauthorised or unlawful processing, loss of, damage to or destruction of any Personal Data;
9.1.8 ensure that all individuals, parties, employees or other persons / entities authorised by Client to process Personal Data, including any Sub-processors, are bound by industry standard confidentiality obligations which include keeping Personal Data confidential; and
9.1.9 take appropriate technical and organisational measures against the unauthorised or unlawful processing of Personal Data, and against the accidental loss or destruction of, or damage to Personal Data.
9.2 Pollen acknowledges and agrees that it is responsible for:
9.2.1 ensuring that all necessary consents and/or permissions are obtained, or that suitable conditions are satisfied (as set out in Data Protection Legislation) to enable the Client to process Personal Data under the Agreement; and
9.2.2 providing Data Subjects with any necessary notifications and any other information required under Data Protection Legislation in respect of the Client’s use of Personal Data under the Agreement.
10. Term & Termination.
10.1 This Agreement begins on the Effective Date set forth on the Cover Sheet and continues until the end of the six (6) month period beginning on the date of the last in effect Event Schedule expires or is otherwise terminated (the “Term”).
10.2 If a party materially breaches an Event Schedule or the body of these General Terms, the non-breaching party may terminate just that Event Schedule or this Agreement (including, to avoid doubt, every Event Schedule entered into under this Agreement), provided that the non-breaching party has given the breaching party written notice describing the breach in reasonable detail, and the breaching party fails to correct that breach within ten (10) days of its receipt of that notice. For the purposes of this clause 10, notice must be given by email to the following address: firstname.lastname@example.org.
The Client hereby represents and warrants that for the duration of the Term:
11.1 it will use its reasonable efforts to ensure that Tickets are not available at a cheaper price through any other agent than the price offered by Pollen;
11.2 it will use its reasonable efforts to ensure that no Ticket types will be made available through the Client's own website or ticketing agents other than those that Members are permitted to sell;
11.3 it will not employ any other peer-to-peer marketing agency or peer-to-peer ticket sales agent without the express written consent of Pollen;
11.4 it will endorse the marketing and sales activities undertaken by Pollen hereunder on the official website for the Event in question, clearly confirming that Pollen is an approved and authorised ticket agent for the sale of Tickets;
11.5 it will supply all relevant artwork and logos for any Event to Pollen for the purposes of online box offices and information packs for Members;
11.6 in the event of a cancellation of an Event for any reason or cause, which results in Pollen having to issue refunds to Customers, then the Client agrees to fully indemnify Pollen in respect of the refunds and to pay any costs associated with processing them.
11.7 in the event that Customers who present valid proof of purchase of Tickets are denied entry to an Event as a result of an error or mistake by the Client or its employees or other representative, Pollen shall continue to be entitled to retain any Commission in respect of such Customers' purchase of Tickets.
12. Warranty Disclaimers; Limitation of Liability.
12.1 OTHER THAN THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, (i) NEITHER PARTY NOR ANY OTHER PERSON PROVIDES ANY EXPRESS OR IMPLIED WARRANTIES IN CONNECTION WITH THE SERVICES, AND (ii) EACH PARTY HEREBY EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. THESE DISCLAIMERS SHALL APPLY EXCEPT TO THE EXTENT, IF AT ALL, THAT APPLICABLE LAW DOES NOT PERMIT THEM.
12.2 WITHOUT LIMITING THE INDEMNITY OBLIGATIONS OF THE PARTIES PURSUANT TO SECTION 13 AND OTHER THAN AS A RESULT OF A BREACH OF THE CONFIDENTIALITY OBLIGATIONS HEREUNDER, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES WILL POLLEN’S TOTAL AGGREGATE (I.E., NOT PER CLAIM) LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT OR OTHERWISE, EXCEED THE TOTAL COMMISSIONS RETAINED BY POLLEN DURING THE TWELVE MONTH PERIOD ENDING ON THE DATE THE FIRST SUCH LIABILITY AROSE. CLIENT ACKNOWLEDGES THAT MEMBERS ARE NOT EMPLOYEES OR AGENTS OF POLLEN, AND THEREFORE AGREES THAT POLLEN WILL HAVE NO LIABILITY FOR THE ACTIONS OR INACTIONS OF MEMBERS WHETHER PERFORMED OR NOT PERFORMED PURSUANT TO A CAMPAIGN OR OTHERWISE.
13.1 Client’s Indemnity. Client agrees to defend, indemnify and hold harmless Pollen, its subsidiaries, its Affiliates, successors, agents, attorneys and assigns, and the officers, directors, shareholders, contractors, members and employees of the foregoing (collectively, “Pollen Parties”), from and against any and all Losses arising out of any claim against any of the Pollen Parties that arises directly or indirectly out of: (i) any facts that, if true, would constitute a breach by Client of the Agreement; (ii) Client’s other use of Content; and (iii) Pollen’s use of Client Marks, provided that Pollen’s use of such marks was in compliance with the terms of the Agreement; (iv) any tax liability that is the responsibility of Client pursuant to Section 5.1; and (v) any Event, except to the extent caused by Pollen’s material breach of this Agreement.
13.2 Pollen’s Indemnity. Pollen agrees to defend, indemnify and hold harmless Client, its subsidiaries, its Affiliates, successors, agents, attorneys and assigns, and the officers, directors, shareholders, contractors, members and employees of the foregoing (collectively, “Client Parties”), from and against any and all Losses arising out of any third party claim against any of the Client Parties that alleges the Analytics Platform infringes any third party’s intellectual property right, where Client’s use of the Analytics Platform was in accordance with this Agreement.
13.3 Indemnification Procedures. The persons and entities entitled to be indemnified under this Section (individually and collectively, the “Indemnitee”) will (i) promptly inform the party providing indemnification (the “Indemnitor”) of each claim with respect to which it seeks indemnity, provided, however, that the failure of the Indemnitee to provide such prompt notice will not relieve the Indemnitor of its obligations under this Section except to the extent such failure of prompt notice has materially prejudiced the Indemnitor’s defense of such claim; (ii) furnish to the Indemnitor a copy of each written communication, notice or other action related to such claim, suit or proceeding, and (iii) give the Indemnitor the authority, information and reasonable assistance necessary to settle or litigate such claim, using counsel selected by the Indemnitor (provided, however, that the Indemnitee will have the opportunity to participate in the defense of such claim with counsel of its choice, at the Indemnitee’s sole cost). Any settlement of any such claim by the Indemnitor that imposes any requirements on the Indemnitee or which involves agreements other than the payment of money by the Indemnitor and receipt of a full release for the benefit of the Indemnitor and the lndemnitee will be subject to the Indemnitee’s written consent, not to be unreasonably withheld, conditioned or delayed.
14. Force Majeure. Neither party will be liable for any delay in performing any of its obligations under this Agreement if such delay is caused by circumstances beyond the reasonable control of the party so delaying (a “Force Majeure Event”), and such party will be entitled (subject to giving the other party full particulars of the circumstances in question and to using its best endeavors to resume full performance without avoidable delay) to a reasonable extension of time for the performance of such obligations. A Force Majeure Event may include, but will not be limited to: accidents; acts or regulations of public authority (whether federal, state or local) including failures or refusals to act; fires; riots or civil commotions; labor disputes; terrorist acts or threats; acts or declarations of war; diseases or epidemics; substantial interruptions in or substantial delays or failures of technical facilities; failures or substantial and extraordinary delays of necessary transportation services; war conditions; emergencies; acts of God; and other similar events.
15.1 Any notice or other document to be given under the Agreement shall be in writing and shall be deemed to have been duly given if sent by
to a party at the address or relevant number for such party, or such other address as the party may from time to time designate by written notice to the other party.
15.2 All such notices and documents shall be in the English language. Any notice, or other document, shall be deemed to have been received by the addressee 2 working days following the date of dispatch of the notice or other document by post or, where the notice or other document is given by hand or is given by email or other electronic media, simultaneously with the delivery or transmission.
16.1 The Agreement shall not be construed as creating any agency, joint venture or partnership between the parties. The relationship between the parties is that of independent contractors.
16.2 Pollen may freely assign this Agreement. Client may not assign this Agreement without Pollen’s prior, written consent.
16.3 The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement.
16.4 No waiver or amendment of any provision of the Agreement shall be effective unless agreed in writing by both parties. Any failure or delay by either party in enforcing or partially enforcing any provision of the Agreement shall not be construed as a waiver of any of its rights under the Agreement.
16.5 Each provision of the Agreement shall be construed separately, and notwithstanding that the whole or any part of any such provision may prove to be illegal or unenforceable, the other provisions of the Agreement and the remainder of the provision in question shall continue in full force and effect.
16.6 Headings are for information purposes only and shall not form part of the operative provisions of the Agreement.
16.7 This Agreement may be executed in counterparts.
16.8 This Agreement will be governed by the laws of the State of Delaware without reference to its conflict of law principles.
17. Dispute Resolution.
17.1 Mediation. In the interest of resolving disputes between Client and Pollen in the most expedient and cost effective manner, the parties will seek initially to resolve any dispute arising out of or in any way related to the Agreement (including, to avoid doubt, Client’s use of the Analytics Platform) by good faith mediation. Either party may initiate mediation by providing written notice to the other party, expressing a desire to mediate on a particular date with a particular mediator. The recipient of such notice will respond in writing within 10 business days. If, within 10 business days after receipt of the written notice, the recipient does not agree to attend mediation or fails without good cause to attend a scheduled mediation of the controversy, the party requesting mediation will be released from the obligation to mediate. If the parties cannot agree on a mediator within 20 days after the recipient’s receipt of notice, the parties agree to submit to binding arbitration in the interest of resolving the dispute.
17.2 Arbitration. If the parties cannot, for any reason, resolve a dispute via mediation pursuant to Section 17.1, then such dispute will be finally settled in accordance with the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in accordance with such Rules unless the parties agree on a sole arbitrator. The arbitration will be held in Wilmington, Delaware, and will be conducted in English. Notwithstanding the foregoing, such arbitration proceedings will in no way impair or limit the right of either party to seek injunctive relief without recourse to arbitration.
Personal Data Schedule
Customers of Pollen Members
Type of personal data:
Name, Email Address, Mobile Number, Transaction History
Purpose of processing:
Processing and dispatching: eTickets; Guestlist
Managing entry to the Event