Eventarc Ticket and Merchandise sale agreement

The use of the online ticket sales service known as Eventarc which is provided by EVENTARC PTY LTD – Australian Company Number 134 120 193 (“Eventarc“) is governed by the terms and conditions set out below (“this Agreement“). Without limiting the way in which you may be bound by this Agreement, by signing a document agreeing to be bound by this Agreement, by clicking a button on your computer screen including your acceptance of this Agreement, or by proceeding to use the Services you (the “Client“) will be deemed to have accepted and will be bound by the terms and conditions of this Agreement.

1. ENGAGEMENT OF EVENTARC

1.1
The Client hereby engages Eventarc to provide the following Services in accordance with this Agreement:

(a)
the provision of a Purchase Page on which Customers of the Client may purchase Tickets to Events held by the Client, purchase Merchandise in respect of those Events and pay Donations to the Client;

(b)
processing of payments for Donations paid by Customers and of Tickets and Merchandise purchased by Customers;

(c)
collection of the Customer Payments for Tickets and Merchandise sold to Customers and any Donations paid by Customers;

(d)
payment of the Customer Payments to the Client, less amounts payable to Eventarc by the Client under this Agreement;

(e)
processing of refunds payable to Customers where required under clause 8 below; and

(f)
any other goods and services in addition to the above which are separately agreed between the parties in writing (“Additional Services“).

1.2
The actual Tickets and Merchandise to be sold by Eventarc pursuant to this Agreement and the description of Donations to be paid by Customers will be separately agreed between the parties and are at all time subject to Eventarc’s written approval. Eventarc may refuse to sell specific Tickets, Merchandise or to solicit Donations for particular Events.

2. ACCOUNT SETUP

2.1
The Client agrees to create an Account with Eventarc in order to use the Services.

2.2
The Account will be created using Eventarc’s online sign up process, or any other method specified by Eventarc from time to time.

2.3
The Account will permit the Client to login to Eventarc’s Portal to manage their Account and other details involving their relationship with Eventarc.

2.4
The Client agrees to keep confidential and secure any username or password used to access the Account.

2.5
The Client warrants that all information provided to Eventarc in the setup of the Account is true and correct in every detail.

2.6
The Client agrees that it will only use the Account and the Portal for the purposes of using the Services and for no other purpose.

3. THE PURCHASE PAGE

3.1
Eventarc will provide the Client with a Purchase Page which Customers may use to purchase Tickets and Merchandise and to pay Donations.

3.2
The Client may incorporate the Purchase Page into the Client’s website. The Client will however comply with all technical requirements of Eventarc in relation to the use of the Purchase Page as part of the Client’s website. Although the Purchase Page may be incorporated as part of the Client’s website, the actual Purchase Page will be hosted on Eventarc’s servers and will contain a Eventarc URL.

3.3
The Client will only customise the Purchase Page in accordance with Eventarc’s instructions provided from time to time.

3.4
The Client acknowledges that a failure to comply with Eventarc’s guidelines in relation to the customisation and use of the Purchase Page may cause errors in the Purchase Page and result in a failure of the provision of the Services.

3.5
Eventarc may as part of any Additional Services, where separately agreed between the parties, customise the Purchase Page on behalf of the Client.

4. PROCESSING THE PURCHASE

4.1
If a Customer purchases Tickets or Merchandise through the Purchase Page, or makes any Donation through the Purchase Page, then subject to the Customer providing correct credit card details, name and address and any other information or security requirements required by Eventarc from time to time, Eventarc will charge the Customer for the following amounts (“Customer Payment“):

(a)
the price of the Tickets and/or Merchandise;

(b)
the amount of any Donation paid by the Customer;

(c)
any delivery charges or delivery fees imposed by Eventarc or the Client on the delivery of the Tickets or the Merchandise;

(d)
any booking fees imposed by Eventarc in addition to the Customer Payment;

(e)
any Taxes which may be levied on the sale of the Tickets or Merchandise to the Customer or on any Donation paid by the Customer; and

(f)
any other fees and charges of Eventarc or the Client imposed by Eventarc or the Client on the Customer at the time of purchase.

4.2
The Customer Payment will be collected from the Customer by:

(a)
charging the Customer’s credit card for the full amount of the Customer Payment; or

(a)
where separately agreed by the parties in writing, processing the payment using an Alternate Payment Method.

4.3
The Client acknowledges and agrees that the Customer Payment may not be collected from a Customer if:

(a)
the Customer provides incorrect credit card details or fails to provide any other information required by Eventarc from time to time in relation to validating the Customer’s identity, security, fraud prevention or any other information required by a third party to complete the transaction;

(b)
the Customer fails to comply with any requirements specified by Eventarc from time to time in relation to the processing of payments using an Alternate Payment Method;

(c)
the Customer’s credit card provider or the person who otherwise honours payments made by the Customer via his or her credit card fails to pay Eventarc the full amount of the Customer Payment or the provider of the Alternate Payment Method fails to pay Eventarc the full amount of the Customer Payment;

(d)
the Client fails to comply with one or more of its obligations arising under this Agreement;

(e)
the Services are temporarily unavailable due to any routine or emergency maintenance required to any software or hardware which Eventarc uses to provide the Services;

(f)
the Services are suspended pursuant to clause 9; or

(g)
an event contemplated by clause 14.2 occurs.

5. DELIVERY OF TICKETS AND MERCHANDISE

5.1
Within 7 days following the conclusion of each week, Eventarc will supply the Client with a report setting out the purchases made by Customers during that week in respect of both Tickets and Merchandise and the amount of any Donations paid by Customers. The report may be delivered to the Client electronically or may be made available to the Client via the Portal.

5.1
Eventarc will deliver Tickets to Customers via electronic means which may include, without limitation, displaying the Tickets onscreen for Customers to print, emailing a copy of the Tickets to the Customers or delivery of the Tickets to Customers via SMS.

5.1
Eventarc will deliver a receipt to the Customer in respect of their purchase via electronic means which may include, without limitation, displaying the receipt on screen for the Customer to print or emailing the receipt to the Customer.

5.1
The Tickets provided by Eventarc will entitle a Customer to entry to the Event but will not entitle the Customer to a particular seat at the Event. Where separately agreed between Eventarc and the Client in writing, Eventarc will allocate individual seats at the Event to each Ticket purchased by a Customer in accordance with a seating plan agreed to between the Client and Eventarc. The allocation of seats will occur in accordance with algorithms and methods of allocation specified by Eventarc from time to time.

5.1
The Client will be responsible for the delivery and supply of Merchandise to Customers. Eventarc will have no obligation or responsibility to deliver or supply Merchandise to Customers.

6. Eventarc FEES

6.1
The Client agrees to pay Eventarc:

(a)
the following fees and charges (“Fees“):

(i)
Eventarc’s fees and charges which Eventarc advises the Client will apply from time to time in relation to the provision of the Services; and

(ii)
any other amounts which the Client is obligated to pay to Eventarc pursuant to this Agreement; and

(b)
all Transaction Costs.

6.2
The amount of the Fees and Transaction Costs payable by the Client will be calculated and determined by Eventarc. In the absence of any manifest error, Eventarc’s calculation of the Fees and Transaction Costs will be conclusive and final.

6.3
Unless expressly stated by Eventarc to the contrary, the Fees and Transaction Costs payable are expressed to be exclusive of all Taxes. Upon payment of the Fees and Transaction Costs, the Client will pay Eventarc an additional amount to ensure that after the deduction of any Taxes levied in respect of the Fees or Transaction Costs, Eventarc receives no less than the amount of the Fees and Transaction Costs.

6.4
The Fees and Transaction Costs will be paid in accordance with clause 7.

7. PAYMENT OF THE CUSTOMER PAYMENTS AND COLLECTION OF FEES

7.1
Unless an event organiser uses PayPal or there is a separate agreement between the parties in writing, the Customer Payments received by Eventarc from Customers will be paid into Eventarc’s own bank account.

7.2
If the Customer Payments are received by Eventarc into its bank account then:

(a)
within 14 days of the event ending, Eventarc will pay the Client the amount of the Customer Payments received from each Customer during sales for the event, less:

(i)
any Fees payable by the Client to Eventarc in relation to Eventarc’s provision of the Services; and

(ii)
any Transaction Costs; and

(b)
if the amount of the Customer Payments held by Eventarc in its bank account are not sufficient to pay the entire amount of the Fees and Transaction Costs owing to Eventarc (as provided for under clause a), then any amount of the Fees and Transaction Costs which remain unpaid after deduction from the Customer Payments pursuant to clause 7.2a, will be due and payable to Eventarc within 7 days of the date of an invoice of Eventarc requesting payment.

7.3
If the Customer Payments are not received by Eventarc into its bank account, then the Client will pay Eventarc’s Fees and Transaction Costs within 7 days of the date of an invoice of Eventarc requesting payment.

7.4
Within 7 days following the end of a calendar month, Eventarc will provide a report to the Client showing all sales of the Tickets and the Merchandise made during that calendar month (and such report may be provided by email or made available in the Portal).

8. PROCESSING OF REFUNDS

8.1
The Client will be responsible for processing all refunds of any Tickets or Merchandise purchased by Customers or of any Donations paid by Customers.

8.2
Eventarc may however refund an amount paid to it by a Customer if:

(a)
Eventarc is required by law or considers that it is required by law to do so;

(b)
Eventarc determines that issuing a refund to the Customer will avoid any dispute or increased costs to Eventarc;

(c)
Eventarc otherwise issues the refund to the Customer in accordance with any refund policy specified by Eventarc from time to time;

(d)
the order placed by the Customer is found to be fraudulent;

(e)
the Customer placed a duplicate order in error;

(f)
the Customer requests a refund before having received the Tickets or Merchandise; or

(g)
in Eventarc’s sole opinion, Eventarc considers that it is likely that the order for the Tickets or Merchandise or the Payment of the Donation will result in a credit card charge back.

8.3
Eventarc’s determination as to whether a refund is required by clause 8.2 is final and conclusive and may not be challenged by the Client.

9. SUSPENSION OF THE SERVICES

9.1
Without limiting Eventarc’s other rights arising under this Agreement, Eventarc may suspend the Client’s use of the Services at any time, with or without notice to the Client if:

(a)
Eventarc considers that the Client has breached any of its obligations to Eventarc under this Agreement;

(b)
the Client is using the Services to sell Tickets or Merchandise to an Event, or to solicit donations in respect of an Event, which in Eventarc’s sole and absolute opinion is offensive, immoral, unethical or is likely to bring Eventarc into disrepute;

(c)
the Client is using its Account or the Services for illegal means or in a manner which Eventarc in its sole discretion considers offensive, unlawful, harassing, libellous, defamatory, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable; or

(d)
in Eventarc’s sole and absolute opinion, the provision of the Services to the Client is resulting in an unreasonable load on Eventarc’s servers or Eventarc’s other services.

9.2
The Client agrees:

(a)
Eventarc may suspend the Services where permitted under clause 9.1 at any time including without limitation, following the release for sale of Tickets, Merchandise and/or Donations to the Event;

(b)
in addition to the powers of Eventarc described in clause 9.1, Eventarc may suspend the Services at any time or for any reason, with or without notice to the Customer, provided that such suspension does not occur following the release for sale via the Services of Tickets, Merchandise or Donations in respect of an Event;

(c)
Eventarc’s suspension of the Services may, in Eventarc’s sole discretion, apply to only some of the Services and/or for a fixed or indefinite period of time; and

(d)
Eventarc may in its sole discretion reactivate the Services for the Client at any time following their suspension.

10. PRIVACY

10.1
Eventarc will collect personal information of Customers including their name, contact details and payment details (including, without limitation, credit card details) (“Customer Information“). Eventarc will pass onto the Client the name and contact details of each Customer, together with a description of the Tickets and Merchandise they have purchased but Eventarc will not pass on payment information.

10.2
The Client agrees that it will only use the Customer Information for the purposes of this Agreement and for the purposes of interacting with Customers in relation to their purchase of Tickets and Merchandise or their payment of any Donation. Unless separately agreed between the Customer and the Client, the Client must not use the Customer Information for any other purpose.

10.3
Each party warrants to the other party that they will comply with all privacy laws and data protection laws (including, without limitation, the Privacy Act 1988 (Cth)) in relation to the storage, use and transfer of Customer Information.

11. RELATIONSHIP OF THE PARTIES

Eventarc is the independent service provider and contractor of the Client and is not the partner, agent or employee of the Client. Neither party has the power to bind the other in relation to any obligation owing to a third party. The Client agrees that any agreement for the sale of Tickets and Merchandise or for the soliciting of Donations will be between it and the Customer and that Eventarc will only be obligated to process the payment of the Customer in accordance with this Agreement.

12. GENERAL OBLIGATIONS OF THE CLIENT

The Client agrees that:

12.1
it will not use the Services for any illegal or fraudulent purpose or for any purpose other than the sale of Tickets and Merchandise to Customers;

12.2
it will comply with all laws which must be complied with in relation to the sale and supply of the Tickets and the Merchandise to Customers;

12.3
it will comply with any export restrictions which may apply to the export of Tickets or Merchandise to locations outside Australia or the territory in which the Client is located;

12.4
it warrants that it will not, by engaging Eventarc to provide the Services, place Eventarc in breach of any law or obligation owing to a third party;

12.5
it will not undertake any act or cause any omission which will bring Eventarc, its brand or its other customers and clients into disrepute;

12.6
it will not use the Services in a manner that may lead to the suspension of the Services under clause 9.1;

12.7
it will provide Eventarc with all information requested by Eventarc which Eventarc requires to provide the Services; and

12.8
it will undertake all tasks requested of it by Eventarc which are necessary to enable Eventarc to provide the Services.

13. TERM AND TEMINATION

13.1
This Agreement will commence on the date that it is entered into by the parties and will terminate 12 months thereafter (“Initial Term“).

13.2
At the conclusion of the Initial Term, this Agreement will automatically renew for successive terms of 12 months each (each a “Renewal Term“) unless terminated by a party prior to the conclusion of the Initial Term or Renewal Term (as the case may be). Such termination may only occur by the party providing the other party written notice of its intention to terminate this Agreement and such notice is given at least 30 days prior to the conclusion of the Initial Term or Renewal Term (as the case may be).

13.3
This Agreement may be terminated by a party at any time for any reason whatsoever on the provision of 30 days written notice to the other party.

13.4
This Agreement may be terminated by a party immediately on written notice to the other party if:

(a)
the other party is in default or breach of this Agreement; and

(b)
the party has provided the defaulting party with 7 days written notice of the default or breach and where the breach or default is capable of rectification, the defaulting party fails to rectify the breach or default within the period of the notice.

13.5
Upon the termination of this Agreement:

(a)
Eventarc will within 7 days following termination, withdraw the use of the Services from the Client and cease to process any sales of Tickets or Merchandise or the payment of Donations;

(b)
Eventarc may withhold a reasonable amount of the Customer Payments payable to the Client (with such amount to be determined by Eventarc in its sole discretion) on account of credit card charge backs, refunds, payments due to third parties on behalf of the Client or other Transaction Costs which may be incurred by Eventarc following termination;

(c)
Eventarc will pay to the client any Customer Payments collected from Customers in accordance with clause 7, less any amounts withheld by Eventarc under clause b and less any amounts (including Fees and Transaction Costs) owing to Eventarc by the Client under this Agreement; and

(d)
within 12 months following termination of this Agreement, Eventarc will pay to the Client the amount withheld under clause b less any portion of that amount used by Eventarc to satisfy refunds, credit card charge backs, payments due to third parties or other Transaction Costs incurred by Eventarc on behalf of the Client which are incurred by Eventarc following termination.

13.6
Clauses 6, 8, 10, 11, 13.5, 14, 15, 16 and 17 will survive the termination of this Agreement.

14. LIMITATION OF LIABILITY AND IMPLIED TERMS

14.1
The Client acknowledges that Eventarc has made no warranties that the Services will be error free.

14.2
The Client agrees that Eventarc will not be liable or responsible for any failure in, or delay to, the provision of the Services or in Eventarc complying with its obligations under this Agreement where such failure or delay has a arisen as a direct or indirect result of:

(a)
fire, earthquake, storm, flood, hurricane, inclement weather or other act of God, war, terrorism, explosion, sabotage, industrial accident or an industrial strike;

(b)
denial of service attacks, telecommunications failure, hardware failure or the failure of software provided by a third party to function in accordance with its specifications;

(c)
a significant demand is placed on Eventarc’s services which is above the usual level of demand and which results in a failure of Eventarc’s software and hardware to function correctly;

(d)
the failure of any third party (including without limitation, any bank or other financial organisation) to fulfil any obligations to Eventarc; or

(e)
any other circumstances or event similar to the above which are beyond the reasonable control of Eventarc.

14.3
The Client acknowledges that Eventarc has not made and will not make any express or implied warranties in relation to the Services or any other goods or services provided by Eventarc under this Agreement, other than those warranties contained in this Agreement. Subject to clauses 14.5 and 14.6, any term that would be implied into this Agreement, including without limitation any condition or warranty, is hereby excluded.

14.4
Subject to clauses 14.5 and 14.6, the Client agrees that Eventarc will not be liable in respect of any claim by the Client (whether contractual, tortious, statutory or otherwise) for any direct, special, incidental, indirect or consequential damages or injury including, but not limited to, any loss of profits, contracts, revenue or data arising out of or in connection with the provision of the Services or the provision of any other goods or services under this Agreement and whether as a result of any breach or default, by Eventarc. The maximum liability of Eventarc under this Agreement for any and all breaches of this Agreement will not exceed the amount of the Fees paid for the Services by the Client.

14.5
If the Trade Practices Act 1974 (Cth) (or analogous legislation) applies to this Agreement and permits the limitation of liability for breach of warranty implied by statute, the liability of Eventarc is limited, at the option of Eventarc, to:

(a)
in the case of goods, any one or more of the following:

(i)
the replacement of the goods or the supply of equivalent goods;

(ii)
the repair of the goods;

(iii)
the payment of the cost of replacing the goods or of acquiring equivalent goods; or

(iv)
the payment of the cost of having the goods repaired; and

(b)
in the case of services:

(i)
the supplying of the services again; or

(ii)
the payment of the cost of having the services supplied again.

14.6
Any of the terms and conditions of this Agreement which limit or exclude any term, condition or warranty, express or implied, or the liability of Eventarc will apply to the extent permitted by law and will not be construed as excluding, qualifying or limiting the Client’s statutory rights or remedies arising by virtue of the breach of any implied term of this Agreement where such exclusion, qualification or limitation would be prohibited by statute.

15. CLIENT INDEMNITY

The Client indemnifies Eventarc, its agents, officers and employees (“Indemnified“) against any loss, cost, expense or damage (including legal costs on a full indemnity basis) which Eventarc suffers or incurs as a direct or indirect result of:

(a)
any breach of the Client’s obligations and warranties given under clauses 12 or 16.4;

(b)
any act of the Client described in clauses b and c; or

(c)
any other breach of this Agreement by the Client.

16. INTELLECTUAL PROPERTY

16.1
The Client acknowledges that Eventarc is the owner of all Intellectual Property Rights which subsist in the Works. The Client acknowledges that it has no Intellectual Property Rights in the Services or in any Works.

16.2
Apart from the extent permissible under the Copyright Act 1968 (Cth), the Client may not copy or reproduce the Services or the Works or disassemble, modify or reverse engineer the Services or the Works.

16.3
For the purposes of providing the Services, Eventarc licenses the Client to incorporate the Purchase Page into its website but to make no other use of the Purchase Page.

16.4
Nothing in clause 16.1 is intended to transfer ownership to Eventarc of any Client Works which the Client or a third party were the owner of at the time of their supply to Eventarc. The Client warrants that it has the necessary rights in the Client Works to permit Eventarc to incorporate the Client Works into the Purchase Page. The Client hereby grants Eventarc a worldwide, royalty free, non-exclusive licence to incorporate and publish the Client Works as part of the Purchase Page.

17. CONFIDENTIALITY

17.1
Each party will keep confidential the Confidential Information of the other party and will only use that Confidential Information for the purposes of this Agreement.

17.2
A party may disclose or use Confidential Information of the other party:

(a)
where the Confidential Information used or disclosed is in the public domain (other than through a breach of this Agreement);

(b)
where the disclosure is required by law;

(c)
where the disclosure is made to the other party’s employees or contractors solely for the purposes of this Agreement and only where such employees or contractors are under an obligation of confidentiality on terms no less restrictive than this clause 17; or

(d)
where the Confidential Information is disclosed to the party’s legal or professional advisors solely for the purposes of seeking advice and only where such advisors are under an obligation of confidentiality on terms no less restrictive than this clause 17.

18. DEFINITIONS AND INTERPRETATION

18.1
In this Agreement, the following terms will have the following meanings, unless the context otherwise requires:

Account means an online account with Eventarc
Additional Services has the meaning given in clause f
Alternate payment method means a method of payment (other than payment by credit card) which is accepted by Eventarc from time to time
Amendment Date has the meaning given in clause 19.1
Client means the person so identified in this Agreement as the “Client
Client Works means any logo, artwork or other works which the Client supplies to Eventarc for inclusion in the Purchase Page
Confidential Information means all information of a confidential or sensitive nature in relation to Eventarc or the Client, including, without limitation, information relating to the Services and their underlying processes and technology and information relating to the business of Eventarc
Customer means a customer of the Client who purchases a Ticket or Merchandise or who makes a Donation via the Purchase Page
Customer Information has the meaning given in clause 10.1
Customer Payment has the meaning given in clause 4.1
Donation means a donation by a Customer to a Client in respect of an Event which Eventarc agrees to collect pursuant to this Agreement
Event means an event held by the Client
Fees has the meaning given in clause 6.1
Indemnified has the meaning given in clause 15
Initial Term has the meaning given in clause 13.1
Intellectual Property Rights means all intellectual property rights of any type whatsoever throughout the world including all rights which subsist in copyright, patent rights, trademark rights, designs and plant breeder rights, whether or not such rights are registered or able to be registered
Merchandise means merchandise or other goods sold by the Client in relation to an Event, in respect of which Eventarc agrees to process the sales for pursuant to this Agreement
Portal means Eventarc’s online portal with which Clients can access their Accounts and view information provided by Eventarc
Purchase Page means a purchasing web page or series of web pages on which Customers may purchase Tickets and/or Merchandise and/or pay Donations
Renewal Term has the meaning given in clause 13.2
Services means the services provided by Eventarc which are described in clause 1.1
Taxes means any applicable duties, sales taxes, GST, VAT or other taxes which may be levied in respect of a transaction contemplated by this Agreement
Ticket means a ticket to an Event for which Eventarc agrees to process the sales for in accordance with this Agreement
Transaction Costs means the following transaction costs incurred by Eventarc or payments made by Eventarc on behalf of the Client or amounts which Eventarc may in the future become liable for in respect of the provision of the Services:

(a)
any Taxes which Eventarc is required to pay or withhold in respect of amounts payable by Eventarc to the Client or in respect of amounts collected by Eventarc on behalf of the Client;

(b)
any amounts paid by Eventarc on behalf of the Client to third parties (including, without limitation, any Taxes);

(c)
any refunds paid under clause 8; and

(d)
credit card charge backs levied in respect of amounts previously collected by Eventarc from Customers or other third parties
Eventarc means HUGEOBJECT PTY LTD – Australian Company Number 111 807 142
Works means any deliverable, item or thing embodied as a result of or by the Services and includes, without limitation, the Purchase Page, any software, content, data, Customer Information or other information displayed to or used by the Client or a Customer in their use of the Services
18.2
In the interpretation of this Agreement, unless the contrary intention appears:

(a)
a reference to this Agreement means a reference to an agreement between Eventarc and the Client on the terms and conditions of this document and includes an amendment or supplement to, or replacement or novation of this Agreement;

(b)
the words “includes” or “including” mean “includes without limitation” or “including without limitation”;

(c)
a reference to a person includes a reference to a corporation, firm, association or other entity, and vice versa;

(d)
the singular includes the plural and vice versa;

(e)
a reference to any gender includes a reference to all other genders;

(f)
a reference to any legislation or to any provision of any legislation includes a reference to any modification or re-enactment of or any provisions substituted for such legislation or provisions;

(g)
an agreement, representation or warranty made by two or more persons is made by them jointly and by each of them severally;

(h)
where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning; and

(i)
headings are inserted for convenience only and do not affect the interpretation of this Agreement.

19. MISCELLANEOUS

19.1
Eventarc may amend the terms and conditions of this Agreement at any time. Such amendments will take effect from the date of their notification to the Client (“Amendment Date“). The Client agrees that without limiting the ways in which it may be bound by such amendments, it will be deemed to have agreed to such amendments by making use of or accessing the Services after the Amendment Date.

19.1
Unless otherwise requested in writing by the Client, Eventarc may use the Client’s corporate identity (if applicable) as part of promoting the Services and Eventarc’ other software in the market place.

19.1
Any notice given under this Agreement must be in writing and must be signed by the party or its agent giving the notice. A notice is taken to be received:

(a)
in the case of a notice delivered by hand, when so delivered;

(b)
in the case of a notice sent by preā€‘paid post, on the third day after the date of posting;

(c)
in the case of a notice sent by facsimile, upon the receipt by the sender of a transmission report from the despatching facsimile machine which confirms that the facsimile has been successfully sent; or

(d)
in the case of a notice sent by email, upon the receipt by the sender of a confirmation from the recipient or the recipient’s email server that the email has been received by the recipient.

19.1
This Agreement supersedes all prior representations, arrangements, understandings and agreements between the parties relating to the subject matter of this Agreement and sets forth the entire and exclusive agreement and understanding between the parties relating to the subject matter of this Agreement.

19.1
A provision of or a right created under this Agreement may not be waived except in writing signed by the party or parties to be bound by the waiver. No single or partial exercise by any party of any right, power or remedy under this Agreement will preclude any other or further exercise of that or any other right, power or remedy. The rights, powers or remedies provided in this Agreement are cumulative with and not exclusive of any rights, powers or remedies provided independently of this Agreement.

19.1
If any provision of this Agreement is judged invalid or unenforceable for any reason whatsoever by a court of competent jurisdiction, such invalidity or unenforceability (unless deletion of such provision would materially adversely affect one of the parties) will not affect the operation or interpretation of any other provision of this Agreement to the intent that the invalid or unenforceable provision will be treated as severed from this Agreement.

19.1
Eventarc may assign its rights and novate or transfer obligations which arise under this Agreement. The Client must not assign, novate or otherwise transfer its rights or obligations under this Agreement without the prior written consent of Eventarc (which may be withheld).

19.1
Each provision of this Agreement capable of having effect after termination and each representation and warranty made in this Agreement will survive the execution, delivery and termination of this Agreement and the performance of all obligations under this Agreement and will not merge on termination.

19.1
The parties acknowledge and agree that no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or part of it.

19.1
This agreement is governed by, and must be construed in accordance with, the laws of the State of Victoria, Australia and the parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Victoria, Australia and their Courts of Appeal.