SITE DEVELOPMENT AND MANAGED SERVICES TERMS AND CONDITIONS

DEFINITIONS.

“Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Venue Owner Materials; or (ii) Venue Owner’s and/or its Authorized Users’ use of the Managed Site, including, without limitation, any usage data or trends with respect to the Managed Site.

“Authorized User” means an employee or contractor whom Venue Owner has authorized to use the Managed Site.

“End User” means a third-party individual who accesses or uses the public portions of the Managed Site, including, without limitation, to purchase Tickets.

“Event” means a live performance or event at the Venue.

“Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyright rights, moral rights, trade secret rights, know-how and any other intellectual property or proprietary rights recognized in any country or jurisdiction in the world other than rights in trademarks, service marks and similar naming rights.

“Managed Site” means the website identified in the Order Form which SGF has customized and/or developed for Venue Owner in connection with SGF’s provision of the Development Services, and which SGF manages on behalf of Venue Owner in connection with SGF’s provision of the Managed Services.

“Order Form” means an order form or other ordering document agreed to in writing or electronically by you and SGF which references this Agreement and sets forth the applicable Services to be provided by SGF.

“Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.

“Services” means the Development Services and Managed Services, collectively.

“SGF Technology” means any technology, software, algorithms, formulas, techniques or know-how developed and owned by SGF.

“Specifications” means the functional specifications and performance requirements for the Managed Site, as specified in the Order Form.

“Ticket” means a ticket, seat or pass to an Event which an End User may purchase on or through the Managed Site.

“Venue” means the event space, theater, or venue owned or operated by Venue Owner and identified in the applicable Order Form.

“Venue Owner Dependent Materials” means any systems, data, software, information and any Venue Owner Materials provided by Venue Owner which are required by SGF to perform the Development Services or Managed Services, as applicable, including, but not limited to, those identified in the Order Form.

“Venue Owner Designated Contact” means the individual identified in the applicable Order Form, which may be updated by Venue Owner from time to time, designated to promptly grant approvals and otherwise make any necessary decisions with respect to the Development Services or Managed Services, as applicable.

“Venue Owner Marks” means Venue Owner’s trademarks, trade names, logos, service marks, and branding elements, as provided by Venue Owner to SGF hereunder.

“Venue Owner Materials” means any information, data, content and other materials, in any form or medium, that Venue Owner uploads, submits, posts, transmits or otherwise provides on or through the Managed Site.

DEVELOPMENT OF SITE.

Development. SGF will perform the development services described in this Agreement, as described in more detail in the applicable Order Form (“Development Services”) to customize and/or develop the Managed Site in accordance with the Specifications and the Order Form, as they may be modified from time to time in accordance with the terms of this Agreement.

Third-Party Services. The Managed Site as developed by SGF will be integrated with or rely on certain third-party services, integrations, features or functionalities, including, without limitation, third-party payment processors, services to send text message updates to End Users regarding End User Purchases, and third-party web hosting services (the foregoing collectively, “Third-Party Services”). SGF may source, coordinate, arrange, configure or manage such Third-Party Services in connection with its provision of Development Services in accordance with this Section 2 and its provision of Managed Services in accordance with Section 3, provided that Venue Owner acknowledges and agrees that SGF does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Managed Site that are caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Venue Owner is solely responsible for all costs and expenses arising from integration and maintenance of any Third-Party Services on or through the Managed Site.

Website Assets. In connection with its provision of Development Services, SGF will design the Managed Site to be customized or branded to reflect the business of Venue Owner (or otherwise as directed by Venue Owner) using the Venue Owner Marks and any other visual assets, materials or other instructions provided by Venue Owner, in accordance with the applicable Specifications and Order Form. Venue Owner hereby grants to SGF a non-exclusive, non-transferable (except as permitted under Section 13(f)), fully paid-up, royalty-free, limited license, during the Term, to use, reproduce, distribute and display the Venue Owner Marks solely in connection with SGF's provision of the Development Services and the Managed Services in accordance with this Agreement. SGF will use the Venue Owner Marks in accordance with any trademark usage guidelines or brand standards provided by Venue Owner to SGF before the Effective Date. SGF acknowledges and agrees that (a) as between the Parties, Venue Owner is and will remain the sole and exclusive owner of all right, title and interest in and to the Venue Owner Marks, including all associated goodwill; and (b) all goodwill arising from SGF’s use of the Venue Owner Marks hereunder will inure solely to the benefit of Venue Owner.

Change Requests. Venue Owner may from time to time request modifications to the Specifications or to the Managed Site. If such modifications, both individually and collectively, do not require SGF’s expenditure of significant additional time and effort, then SGF will communicate this to Venue Owner in writing, and the requested modifications will be incorporated into the Specifications. If such modifications require SGF’s expenditure of significant additional time and effort, either individually or collectively, then the Parties will negotiate in good faith appropriate revisions to the Order Form, including, without limitation, the amount of Fees due to SGF or the timeline for completion of the Development Services. Upon the Parties’ agreement to such revisions, the Specifications and the Order Form will be amended accordingly and SGF will perform the requested modifications.

MANAGED SERVICES.

Engagement. Venue Owner hereby engages SGF, during the Term and upon completion of the Development Services, to perform the following services to Venue Owner: (i) operate the Managed Site on behalf of Venue Owner for the purpose of promoting the Venue and allowing End Users to access the Managed Site to purchase Tickets to Events; (ii) track the inventory of available seats at Events at the Venue; and (iii) serve as the processor of End User Purchases as described in Section 3(c) (the foregoing (i), (ii), (iii) collectively, “Managed Services”).

Exclusivity. Venue Owner engages SGF to be Venue Owner’s exclusive provider of Managed Services during the Term. Accordingly, Venue Owner shall not during the Term engage any third-party providers to sell tickets to Events at the Venue, including, without limitation, any private events which offer tickets to the general public for sale. Notwithstanding the foregoing, the foregoing exclusivity obligation shall not apply to: (i) any resales of Tickets after the first primary sale; or (ii) any private Events held at the Venue during the Term which do not offer tickets to the general public for sale.

End User Purchases. In connection with its provision of the Managed Services, SGF will allow End Users to purchase Tickets to Events at the Venue on or through the Managed Site (each such transaction, an “End User Purchase”) and if the End User selects Tickets in a digital form, SGF will generate such Tickets using the Venue Owner Marks and other identifying information and send such Ticket to the End User using the contact information provided by the End User in connection with the End User Purchase. SGF is not responsible for delivering any physical Tickets to End User(s). SGF will remit (or cause to be remitted) to Venue Owner all funds collected from End Users arising from all End User Purchases using the method agreed upon by the Parties, less the per-Ticket fee (the “Ticketing Fee”) specified in the Order Form.

Access to and Use of Managed Site.

By Venue Owner.

Credentials and Authorized Users. SGF will provide Venue Owner with a username, account, and/or provide other access control or security credentials (“Credentials”) to enable Venue Owner or its Authorized Users to access the Managed Site. Venue Owner may permit Authorized Users to use the Credentials to access the Managed Site, provided that Venue Owner ensures each Authorized User complies with all applicable terms and conditions of this Agreement and Venue Owner is responsible for acts or omissions by Authorized Users in connection with their use of the Managed Site. SGF reserves the right to suspend or revoke Credentials and access to or use of the Managed Site in the event of any misuse, abuse, or failure to comply with the terms and conditions of the Agreement. Venue Owner: (a) is responsible for protecting all Credentials from disclosure to or discovery by third parties and any unauthorized use by third parties; (b) will not provide any Credentials to any third party; and (c) will remain fully responsible and liable for (and in no event will SGF be responsible or liable for) any use, including any misuse, abuse, or unauthorized use, of any Credentials or the Managed Site by Venue Owner or Authorized Users. Credentials are personal to Venue Owner or the applicable Authorized User and may not be shared or transferred without SGF’s express prior written consent. Venue Owner will, and will require all Authorized Users to, use all reasonable means to secure Credentials used to access the Managed Site in accordance with customary security protocols, and Venue Owner will immediately notify SGF in the event of any actual or suspected misuse, abuse, or unauthorized use of any Credentials.

Use; Venue Owner Materials. Subject to the terms and conditions of this Agreement, SGF hereby authorizes Venue Owner, during the Term, to use the Credentials to access and use the Managed Site to (i) upload, submit, post, transmit or otherwise provide Venue Owner Materials on or through the Managed Site; and (ii) as otherwise necessary in connection with operating the Venue or hosting any Event(s).

Use Restrictions. Venue Owner will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly: (i) use the Managed Site in any manner beyond the scope of rights and authorizations expressly granted in this Agreement; (ii) modify or create derivative works of the Managed Site or any SGF Technology, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Managed Site or SGF Technology, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease use of the Managed Site or SGF Technology to any other Person, or otherwise allow any Person to use the Managed Site or SGF Technology for any purpose other than for the benefit of Venue Owner in accordance with this Agreement; (v) use the Managed Site or SGF Technology in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Managed Site, or any data or content contained therein or transmitted thereby; (vii) access or search the Managed Site or SGF Technology (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Managed Site features provided by SGF for use expressly for such purposes; or (viii) use the Managed Site, or SGF Technology or any SGF Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Managed Site or SGF Technology.

By End User. Access to and use of the Managed Site by any End User, and the purchase of Tickets for Events by such End User, will be governed by a separate agreement between SGF and each such End User.

VENUE OWNER DEPENDENCIES. Venue Owner will: (i) ensure the Venue Owner Designated Contact promptly responds to SGF requests, and otherwise makes any necessary decisions required by SGF with respect to the Development Services or Managed Services; (ii) provide SGF with access to Venue Owner’s systems, sites and/or facilities as necessary for SGF to perform the Development Services or Managed Services, as applicable; and (iii) perform Venue Owner’s duties and tasks under the Order Form, and such other duties and tasks as may be reasonably required to permit SGF to perform the Development Services or Managed Services, as applicable (clauses (i) through (iii), collectively, “Venue Owner Dependencies”). Venue Owner will make available to SGF any Venue Owner Dependent Materials. SGF assumes that the Venue Owner Dependent Materials will be reliable, adequate and accurate for the purpose of providing the Development Services or Managed Services, as applicable, and therefore will not independently test, verify or audit such information.

CONFIDENTIAL INFORMATION.

Definitions. As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, any non-public areas of the Managed Site will be deemed Confidential Information of SGF. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.

Obligations and Permitted Disclosures. The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that SGF may use and modify Confidential Information of Venue Owner in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement; or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.

Duration. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

FEES.

Fees. Venue Owner will pay SGF the fees set forth in the relevant Order Form in accordance with the terms therein (“Fees”). Except for SGF’s own deduction, retention, or debit of Fees as described in the Order Form, all amounts are payable by Venue Owner without offset or deduction. SGF reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Term or then-current Renewal Term, upon sixty (60) days’ prior notice to Venue Owner (which may be sent by email); provided that if SGF provides such notice, Venue Owner may elect not to renew this Agreement by providing written notice to SGF no later than thirty (30) days after receipt of SGF’s fee change notice, and such non-renewal will be effective at the end of the then-current Term notwithstanding Section 8(a). Except as otherwise provided in the relevant Order Form, SGF will collect the Fees by deducting or retaining them from the funds collected from End Users on Venue Owner’s behalf, and/or by charging or debiting Venue Owner’s account or payment method through the payment processor, in each case as described in the Order Form. To the extent SGF instead issues an invoice for any Fees, Venue Owner will pay all amounts set forth on such invoice no later than thirty (30) days after the invoice date. If Venue Owner has signed up for automatic billing, SGF will charge Venue Owner’s selected payment method (such as a credit card, debit card, gift card/code, or other method available in Venue Owner’s home country) for any Fees on the applicable payment date, including any applicable taxes. If SGF cannot charge Venue Owner’s selected payment method for any reason (such as expiration or insufficient funds), Venue Owner remains responsible for any uncollected amounts. In accordance with local law, SGF may update information regarding Venue Owner’s selected payment method if provided such information by Venue Owner’s financial institution.

Payments. Payments due to SGF under this Agreement must be made in U.S. dollars by check, wire transfer of immediately available funds to an account designated by SGF or such other payment method mutually agreed by the Parties, or by deduction or debit as described in Section 6(a). All payments are non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. If Venue Owner fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and SGF may suspend Venue Owner’s access to the Managed Site and/or SGF’s provision of Development Services or Managed Services until all payments are made in full. Venue Owner will reimburse SGF for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.

Taxes. Venue Owner is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Venue Owner to SGF hereunder, other than any taxes imposed on SGF’s income. Without limiting the foregoing, in the event that Venue Owner is required to deduct or withhold any taxes from the amounts payable to SGF hereunder, Venue Owner will pay an additional amount, so that SGF receives the amounts due to it hereunder in full, as if there were no withholding or deduction.

OWNERSHIP.

Limited Rights. Venue Owner’s rights in the Managed Site will be limited to those expressly granted in this Agreement. SGF reserves all rights and licenses in and to the Managed Site and SGF Technology not expressly granted to Venue Owner under this Agreement.

Ownership. Subject to the terms of this Agreement, Venue Owner owns and reserves all right, title and interest, including, without limitation, all Intellectual Property Rights, in and to the Venue Owner Materials, Venue Owner Marks, and Venue Owner Dependent Materials. SGF owns and reserves right, title and interest, including, without limitation, all Intellectual Property Rights, in and to the SGF Technology, Aggregate Data, the Managed Site, and any improvements, modifications, or enhancements thereto. Venue Owner will not delete or in any manner alter the copyright, trademark or other proprietary rights notices appearing on the Managed Site without the express written permission of SGF.

TERM AND TERMINATION.

Term. The initial term of this Agreement begins on the Effective Date and expires at the end of the Term specified in the relevant Order Form (the “Initial Term”). Following the Initial Term, this Agreement may be renewed for additional periods of the same duration as the Initial Term upon written agreement of the Parties. The Initial Term and any renewal term are referred to herein as the “Term”.

Termination for Cause. Either Party may terminate this Agreement, effective upon written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.

Termination for Convenience. Venue Owner may terminate this Agreement for convenience upon thirty (30) days’ prior written notice to SGF provided that, upon delivery of notice of such termination, Venue Owner shall promptly pay SGF the Early Termination Fee.

Early Termination Fee. If Venue Owner terminates this Agreement for convenience under Section 8(c), Venue Owner shall promptly pay to SGF the Early Termination Fee set forth in the relevant Order Form (the “Early Termination Fee”). Venue Owner’s payment of the Early Termination Fee does not limit any other remedy of SGF hereunder or affect Venue Owner’s duty to pay all other Fees owed at the time of such termination. The Parties further agree that the Early Termination Fee is not a penalty, is fair, and represents a reasonable estimate of the anticipated loss that SGF would suffer arising from early termination of this Agreement for convenience. For clarity, the Venue Owner will not be obligated to pay the Early Termination Fee in connection with a Force Majeure Event which results in the permanent closure or destruction of the applicable Venue, provided that the Early Termination Fee shall apply to any other termination by Venue Owner under Section 8(c), including, without limitation, any such termination due to a rebranding of the Venue, change in sales methods, or relocation within one hundred (100) miles of the current address of the applicable Venue.

Survival. This Section 8(e) and Sections 5, 6, 7, 8(c) (with regard to Venue Owner’s payment obligations), 8(f), 9, 10, 11, 12, and 13 survive any expiration or termination of this Agreement.

Effect of Termination. Upon expiration or termination of this Agreement: (i) the rights granted to Venue Owner pursuant to Section 3 will terminate, and Venue Owner will cease all access to or use of the Managed Site; and (ii) Venue Owner will return or destroy, at SGF’s sole option, all SGF Confidential Information in its possession or control, including permanent removal of such SGF Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Venue Owner’s possession or under Venue Owner’s control, and at SGF’s request, certify in writing to SGF that the SGF Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Venue Owner’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Venue Owner to any refund.

INDEMNIFICATION.

SGF Indemnification. Subject to Section 9(b), SGF will defend Venue Owner against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Venue Owner’s use of the Managed Site infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Venue Owner against any damages and costs awarded against Venue Owner or agreed in settlement by SGF (including reasonable attorneys’ fees) resulting from such Claim.

Exclusions. SGF’s obligations under Section 9(a) will not apply if the underlying third-party Claim arises from or as a result of: (i) Venue Owner’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Venue Owner Materials, Venue Owner Marks, or Venue Owner Dependent Materials; (iii) modifications to the Managed Site by anyone other than SGF; or (iv) combinations of the Managed Site with software, data or materials not provided by SGF.

IP Remedies. If SGF reasonably believes the Managed Site (or any component thereof) could infringe any third party’s Intellectual Property Rights, SGF may, at its sole option and expense, use commercially reasonable efforts to: (i) modify or replace the Managed Site, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Venue Owner to continue use. If SGF determines that neither alternative is commercially practicable, SGF may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Venue Owner. The rights and remedies set forth in this Section 9 will constitute Venue Owner’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Managed Site.

Venue Owner Indemnification. Venue Owner will defend SGF against Claims arising from (i) any Venue Owner Materials, Venue Owner Marks, or Venue Owner Dependent Materials, including, without limitation, (A) any Claim that the Venue Owner Materials, Venue Owner Marks, or Venue Owner Dependent Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Venue Owner Materials, Venue Owner Marks, or Venue Owner Dependent Materials violates any applicable law, rule or regulation; (ii) any of Venue Owner’s products or services; and (iii) use of the Managed Site by Venue Owner or its Authorized Users in a manner that is not in accordance with this Agreement, including, without limitation, any breach of the license restrictions in Section 3(d)(i)(3), and in each case, will indemnify and hold harmless SGF against any damages and costs awarded against SGF or agreed in settlement by Venue Owner (including reasonable attorneys’ fees) resulting from such Claim.

Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.

REPRESENTATIONS AND WARRANTIES.

Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) it has full power and authority to enter into this Agreement; (ii) the execution, delivery and performance of this Agreement by it have been duly authorized by all necessary actions and do not violate its organizational documents; and (iii) it will comply with the laws applicable to that Party and the performance of their obligations under this Agreement and will provide information reasonably requested by the other Party to assist the other Party in its compliance obligations. 

Venue Owner Representations. Venue Owner represents and warrants that: (i) SGF’s use of the Venue Owner Materials, Venue Owner Marks, and Venue Owner Dependent Materials in accordance with this Agreement will not (A) result in the violation of any applicable law or regulation or (B) infringe or violate any Intellectual Property Rights or other rights of any third-party or cause a breach of any agreement or obligations between Venue Owner and any third party; and (ii) it has all rights and permissions required to submit the Venue Owner Materials and Venue Owner Marks to SGF for use in accordance with this Agreement.

SGF Representations. SGF represents and warrants that: (i) Venue Owner’s use of those aspects of the Managed Site provided by SGF (which for the avoidance of doubt excludes the Venue Owner Marks, Venue Owner Dependent Materials, Venue Owner Materials, and any Third-Party Services) in accordance with this Agreement does not infringe or violate any Intellectual Property Rights of any third party; and (ii) the Managed Site will operate during the applicable Term substantially as described in the Order Form (provided that the foregoing excludes any delays or unavailability arising from any of the Venue Owner Dependencies).

DEVELOPMENT SERVICES WARRANTY; DISCLAIMER. SGF warrants that the Development Services will be performed in a good and workmanlike manner consistent with applicable industry standards. This warranty will be in effect for a period of thirty (30) days from the completion of any Development Services. As Venue Owner’s sole and exclusive remedy and SGF’s entire liability for any breach of the foregoing warranty, SGF will promptly re-perform any Development Services that fail to meet this limited warranty. AS BETWEEN THE PARTIES, EXCEPT AS EXPRESSLY AGREED UPON BY THE PARTIES UNDER AN ORDER FORM, VENUE OWNER IS SOLELY RESPONSIBLE FOR ALL SERVICES ASSOCIATED WITH TICKETS AND EVENTS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE MANAGED SITE, DEVELOPMENT SERVICES, AND MANAGED SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND SGF MAKES NO WARRANTIES OR REPRESENTATIONS TO VENUE OWNER OR TO ANY OTHER PARTY REGARDING THE MANAGED SITE, DEVELOPMENT SERVICES, AND MANAGED SERVICES, ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER, OR ARISING FROM ANY TICKETS OR EVENTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SGF HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, SGF HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE MANAGED SITE, DEVELOPMENT SERVICES, OR MANAGED SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE.

LIMITATIONS OF LIABILITY.

Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILLFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF VENUE OWNER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PROVISION OF THE MANAGED SITE, DEVELOPMENT SERVICES OR MANAGED SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

Total Liability. EXCEPT IN CONNECTION WITH ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 9(a), IN NO EVENT WILL SGF'S TOTAL CUMULATIVE LIABILITY TO VENUE OWNER OR ITS AUTHORIZED USERS ARISING FROM ALL CLAIMS UNDER OR RELATED TO THIS AGREEMENT, OR THE PROVISION OF THE MANAGED SITE, DEVELOPMENT SERVICES OR MANAGED SERVICES EXCEED THE FEES ACTUALLY PAID BY VENUE OWNER TO SGF IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE APPLICABLE CLAIM MADE UNDER OR RELATED TO THIS AGREEMENT, LESS ALL AMOUNTS PAID BY SGF TO VENUE OWNER FOR ALL PAST CLAIMS OF ANY KIND MADE UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT SGF WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 12 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN SGF AND VENUE OWNER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.

GENERAL.

Entire Agreement. This Agreement, including the Order Form, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.

Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and (i) when sent by SGF, will be sent to the Venue Owner Designated Contact, and (ii) when sent by Venue Owner, will be sent to SGF at office@sgf.theater, or such other address as SGF designates. Such notices will be deemed given: (A) when delivered personally; (B) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; or (C) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid.

Waiver. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.

Severability. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.

Governing Law; Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the Parties irrevocably consent to the personal jurisdiction and venue therein.

Assignment. Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void. Notwithstanding the foregoing, SGF may assign or transfer this Agreement to a third party that succeeds to all or substantially all of SGF’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.

Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 (Confidential Information) or, in the case of Venue Owner, Section 3(d)(i)(3) (Use Restrictions), would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

Force Majeure. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God (“Force Majeure Event”).

Subcontracting. SGF may use subcontractors and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that SGF remains responsible for the performance of each such Subcontractor. Notwithstanding anything to the contrary in this Agreement, with respect to any Third-Party Services including any hosting (e.g. AWS) or payment vendors (e.g. PayPal), SGF will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of SGF.

U.S. Government End Users. The Managed Site was developed solely at private expense and is a “commercial product”, “commercial item”, or “commercial computer software” as defined in the Federal Acquisition Regulation 2.101 and other relevant government procurement regulations including agency supplements. Any use, duplication, or disclosure of the Managed Site by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement as consistent with federal law and regulations. If these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Venue Owner will immediately discontinue its use of the Managed Site.

Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.

No Third-Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the Parties and their respective successors and assigns.