General Terms and Conditions of Sale
BandSquare is a French société par actions simplifiée (simplified company) with a share capital of €1,000, registered in France in the Pontoise Trade and Companies Register under number 797 485 042, whose registered office is located at Essec Ventures, Cergy (95000), represented by its Chairman, Chloé Julien.
BandSquare is a platform that brings fans and artists together (hereinafter the “Platform”) accessible at www.BandSquare.com and operated by BandSquare.
The following Services are proposed on the Platform:
· information services;
· promotion of events (hereinafter the “Event”) in two forms:
· Events sold as unconditional sales, called “Confirmed Events”;
· Events sold as participative sales, called “Participative Events”;
· sales of electronic tickets for these Events on the BandSquare.com website using Digitick’s white label online ticketing system (hereinafter the “Ticketing Solution”); and
· database management, for data collected following these Events.
Through the Platform, Producers of Artists and/or Events can create a fully customisable “Online page” for themselves and for each of their artists, to enable them to provide information on, promote and sell these Events and/or these Artists to adults (hereinafter the “Customers’), who may purchase barcoded Tickets online, to be printed at home or downloaded onto a mobile telephone for the chosen Events.
BandSquare uses a Ticketing Solution published by its partner, Digitick. The Producer is informed of the foregoing and accepts that the general terms and conditions apply for the customisation of Confirmed Events from the administrative section of its Personal Area, for the issuing and checking of Tickets and for the obligation to report the system and archive data.
Accordingly, one of BandSquare’s role is to act as an intermediary for the marketing and sale of Events hosted by persons (hereinafter the “Artists”) on behalf of Producers.
The Producer has contacted BandSquare in order to take advantage, directly and for several of its Artists, of the services available for the promotion, marketing and sale of electronic tickets on the BandSquare platform.
Services provided by BandSquare
BandSquare makes a dedicated Online Page (for each Artist) available to the Producer and its Artists on the Platform, through which the Producer can access Services, such as the implementation of publicity, promotional and selling campaigns for its Events.
The Producer will be entitled to use the promotional services available on the Platform, to create dedicated Personal Areas for each of its Artists.
The terms governing the creation and administration of Accounts and Areas created by the Producer for each of its Artists on the Platform are set out in these General Terms and Conditions of Sale. The Producer and the Artists it represents expressly accept these General Terms and Conditions of Sale by ticking the relevant box during the registration process on www.bandsquare.com.
The Producer can be entitled to use the ticketing services integrated into the platform to market events produced by the Producer and/or by its Artists within the framework of the Campaign development process.
Terms governing the creation and administration of one or more Accounts
BandSquare will make an online administration area available to the Producer, accessed using a username and password on www.BandSquare.com. In this area, the Producer may customise the entire Campaign and its Events, access databases and consult Campaign statistics.
The customisation steps carried out for each operation will be treated as a valid authorisation given to BandSquare to sell the Tickets, in its name but on the Producer’s behalf, in accordance with the defined criteria and in accordance with the provisions of Clause 7 hereof, it being specified that for each Event, the Producer will determine, at its own discretion, the number of Tickets that may be sold by BandSquare, in its capacity as a sales agent (commissionaire), and the retail price of the Tickets (hereinafter the “Retail Price”). The Retail Price stated includes BandSquare’s fees but does not include handling costs (which are defined as the Customer’s contribution to the costs incurred to create a BandSquare account and issue an e-ticket).
Each Personal Area may be accessed and used as soon as this Agreement has been signed and throughout the term of the subscription to the Service. The Producer acknowledges and accepts that the subscription to the Service will be renewed each month, provided that the corresponding payment is properly paid.
The Producer warrants that it holds all rights, in particular the proprietary rights to exploit the works forming part of the Events, the right to distribute Tickets for the Events and all permissions required for the organisation of the Events (such as permissions from talent agents, broadcasters, producers or tour organisers for example), the Tickets for which will be sold via BandSquare. In this respect, the Producer shall hold BandSquare harmless from and against any action or claim by a third party.
If the Producer delegates Ticketing Services to a third party (Promoter), it shall be fully liable for the agreement with the Promoter and BandSquare may not be held liable in connection with the said agreement.
The Producer acknowledges (i) that BandSquare has no control over the information published and (ii) that it is fully and solely liable for all content posted online on the Website.
In this respect, the Producer undertakes to use the Website for the sole purpose of promoting the Artist’s work and undertakes not to do anything or be involved in anything that could harm BandSquare such as (but not limited to) the following acts:
· posting publications online that are illegal, harmful, threatening, improper, a nuisance, criminal, defamatory, privacy infringing, hateful, racist or unethical or that have paedophile-orientated or pornographic content;
· identity theft, involving a private individual or a legal entity;
· posting any item online that is not owned by the Producer or that it is not allowed to post online under a law or contractual undertakings, including any infringing items such as patents, trade marks, trade secrets, copyright, privacy rights or image rights or other third-party proprietary rights;
· posting publications online containing computer viruses or other codes, files or computer programs designed to interrupt, destroy or restrict the operation of any software, computer hardware or telecommunications equipment;
· soliciting, collecting or publishing personal data or attempting to solicit, collect or publish personal data relating to other Website users or any other third party.
The Producer undertakes to indemnify BandSquare in the event that third parties take action against it in relation to all or part of the publications and information currently or previously posted in its Personal Area.
The Producer acknowledges that in its capacity as a hosting company and intermediary, BandSquare has no control over the content posted by the Producer and/or the Artists in their Personal Areas.
BandSquare disclaims all liability for the content of the Personal Area and, in particular, the customisation of the Events being sold.
BandSquare is the maker of the Database within the meaning of Article 341-1 et seq. of the French Intellectual Property Code (Code de la Propriété Intellectuelle) and holds all exploitation and proprietary rights relating to the Database.
The Producer is not granted any right to use these elements other than the rights expressly stated in this Agreement.
Personal data policy
The Producer and BandSquare will have access to data on the purchasers of Tickets for its Events along with data on people who have pre-booked.
In this respect, the Producer and BandSquare undertake to maintain the confidentiality of the personal data presented in the Database, all of the foregoing in accordance with French Data Protection Act No. 78-17 of 6 January 1978 as amended.
The Producer also undertakes not to use the personal data of Customers who have purchased Tickets for any purpose other than the promotion of the Artist directly associated with the tickets purchased by these Customers and to use it in strict compliance with the provisions of Article 121-20-5 of the French Consumer Code (Code de la Consommation) introduced by the French Act of 21 June 2004 to support confidence in the digital economy.
Pursuant to the Opt-In rules set out in the French Postal Services and Electronic Communications Code (Code des Postes et des Communications Electroniques), BandSquare will state, in the Database, which Customers have informed BandSquare that they do not wish to receive or no longer wish to receive commercial offers from the Producer. Moreover, the Producer acknowledges and accepts that BandSquare is the sole operator and owner of the Database appearing on the Platform.
The price payable depends on the package chosen during the registration process. The Producer acknowledges and accepts that the applicable price only covers the functionalities available in the chosen package.
BandSquare is and shall remain the exclusive holder of the intellectual property rights relating to the Personal Area that it makes available to the Producer for the customisation of the Campaign, available on the bo.BandSquare.com website.
The Producer represents that it holds the intellectual property rights relating to the logos, trade marks, designs, images and text etc. that it provides to BandSquare for publication on the BandSquare.com website. In this respect, the Producer shall hold BandSquare harmless from and against any action taken by a third party, in particular any infringement proceedings, due to this use of the trade marks and distinctive signs by BandSquare.
The data, files and other documentation made available to BandSquare by the Producer for the performance of the Agreement shall remain the exclusive property of the Producer or the third parties that made these elements available to BandSquare.
BandSquare undertakes not to in any way reproduce, modify or use these elements for any purpose other than the performance of the Agreement without first obtaining the Producer’s written permission.
For the term of this Agreement and after the expiry hereof, each Party to this Agreement undertakes, in its name and in the name of its employees, to treat the other Party’s documents, systems and know-how, of which it may become aware in connection with the performance of this Agreement, as confidential and to only use them for the purposes of this Agreement.
This duty of confidentiality does not apply to information that has fallen into the public domain or if the other Party authorises the disclosure of the information in writing.
The Producer and BandSquare shall not directly or indirectly harm or damage the other Party’s image or reputation.
SALE OF TICKETS ON BANDSQUARE.COM
Authorisation given to BandSquare to act as an undisclosed agent for ticket sales
The Producer grants BandSquare the right to sell Tickets in accordance with the provisions set out below in its name but on the Producer’s behalf, and this right is hereby accepted by BandSquare, within the framework of the provisions of Article L. 132-1 of the French Commercial Code (Code de Commerce). Accordingly, for all purposes of this Agreement, the Producer will act as the principal and BandSquare as the sales agent. By signing up for the services provided on the BandSquare platform, the Producer is automatically deemed to grant an authorisation to act as an undisclosed agent for ticket sales.
Temporary exclusive rights for ticket sales
The Producer shall grant BandSquare exclusive rights solely for ticket sales and the Producer undertakes to ensure, for each Event on which BandSquare works, that each marketed date is preferably sold exclusively on BandSquare for at least the first two weeks of sales.
BandSquare undertakes to apply the general and special marketing rules (dates, times, prices, special instructions for certain Events etc.) requested by the Producer.
If, for any given Event, BandSquare sells all of the Tickets that the Producer, through the customisation of the said Event, had authorised it to sell on the Producer’s behalf on www.BandSquare.com, BandSquare undertakes not to mark the Event as “sold out” but to state “sold out on BandSquare” and to inform the Producer thereof.
BandSquare, through Digitick, its Ticket issuing partner, undertakes to issue Tickets in accordance with the customisation settings implemented by the Producer in the Personal Area and in the administrative area of the Digitick account of the Producer or the person responsible for arranging ticket sales.
The Producer undertakes to inform BandSquare of any ticket sales launch as swiftly as possible, whether or not the launch was made on the BandSquare platform.
The Producer undertakes to provide all information required for the sale of the Tickets for the Events it organises, in an accurate manner and in its Personal Area provided by BandSquare. Moreover, the Producer will be solely liable for the accuracy of the information describing the Event provided during the set-up process on Digitick.
When setting-up an Event, the Producer undertakes to state any proof of age or other proof required for admission to the Event venue for the different prices it proposes and BandSquare undertakes to inform its users thereof.
The Producer undertakes to comply with all tax regulations governing the Events it organises. To this end, the Producer shall state, when setting-up the Event online and under its own liability, the VAT rate to be applied by BandSquare for Ticket sales. The Producer undertakes to inform BandSquare of any changes to the applicable VAT rate due to the number of performances of the relevant show.
For Confirmed Events:
· The Producer undertakes to accept all Tickets purchased on the BandSquare network.
· The Producer is solely liable for the implementation of the Events for which BandSquare sells Tickets.
For Participative Events:
· The Producer shall inform BandSquare as soon as the Event is confirmed so that BandSquare can debit Customers and issue Tickets in accordance with the terms and conditions of sale stated on the Website.
· When the Producer confirms an Event, it shall inform BandSquare of the exact place and date of the Event.
No minimum guarantee or covering of unpaid or unsold tickets
The Producer is informed and accepts that BandSquare is not bound by any minimum or pre-determined guarantee for Ticket sales. Accordingly, the Producer will solely bear the risk of unsold tickets (tickets remaining from the quota allotted to BandSquare that have not been sold) and/or unpaid tickets (tickets issued where the bank card could not be debited or the payment by bank card is challenged, even after the concert has taken place, in particular for fraud).
The Parties expressly agree that the Producer undertakes to cover all rejected payments, in particular by credit card, and the corresponding bank charges.
Definitive cancellation of an Event by the Producer and Ticket refunds
If an Event is definitively cancelled, BandSquare shall refund the Retail Price of the Ticket directly to Customers, using, in the following order of precedence:
a) the funds that BandSquare holds, that have yet to be transferred to the Producer;
b) once this initial sum has been exhausted, funds handed over by the Producer forthwith upon request, prior to the refund made by BandSquare. Two months after the cancelled Event, BandSquare shall provide the Producer with a breakdown of the Tickets refunded, a list of the Tickets still to be refunded and all sums collected in connection with the said list. As of the said date, the Producer will replace BandSquare in its refund obligations.
The Parties agree that for each refunded Ticket, the Producer will pay BandSquare a sum of €1, in addition to its Fees, to cover the bank charges incurred for the refund and the cost of processing the cancellation.
BandSquare’s fees based on ticket selling prices
Whenever a statement of account is produced in accordance with Clause 15 below, BandSquare will send the Producer an invoice setting out the amount of commission payable.
The Producer will unilaterally determine the selling price, inclusive of all taxes, of the Tickets. The selling price defined will include BandSquare’s fees (hereinafter the “Fees”). All prices are stated and payable in the currency of the country of the Event venue, inclusive of all taxes.
BandSquare’s Fees are set at 10% of the Retail Price of the ticket, with a minimum charge of €1.80 incl. taxes if the Retail Price of the ticket is less than €18, excluding handling costs, which constitute a contribution to the cost of creating an account on BandSquare.com and issuing an e-ticket, to be borne by the purchaser.
Authorisation to issue invoices on the BandSquare.com sales channel
BandSquare, as the Producer’s sales agent and within the framework of its appointment as a sales intermediary, shall issue invoices to purchasers in the name and on behalf of the Producer. In this respect, BandSquare undertakes to comply with all legislation applicable in this field.
The Producer may submit a challenge to BandSquare in relation to the invoices issued in its name and on its behalf, within 15 (fifteen) days.
The Producer undertakes to immediately inform BandSquare of any changes in the information relating to its identity (registered office, amount of its share capital, etc.).
Statements of account
The Producer expressly authorises BandSquare to collect the proceeds of the sale of Tickets marketed on BandSquare.com, in its name and on its behalf, and to retain the sums collected until the said sums are subsequently transferred to the Producer in accordance with the provisions set out below.
BandSquare undertakes to pay the total amount of Ticket sales collected by BandSquare, on the Producer’s behalf, to the Producer within two (2) business days following the end of each Event, after deducting its Fees and handling costs. BandSquare will transfer the said sum to an account held by the Producer with a reputable bank, to the exclusion of any other account.
The Parties expressly agree that their reciprocal debts may be set off against each other, provided that they are certain, liquid and due and payable, in accordance with the regulations in force.
BandSquare shall deduct the following directly from the amount to be transferred to the Producer: the amount of the Fees defined in Clause 14.2 of this Agreement and, where applicable, if the Event is definitively cancelled, the amount of the cancellation fee set out in Clause 5.3 of this Agreement.
The sum to be transferred will be calculated on the basis of a statement of account, to be treated as an invoice for sales from the Producer to BandSquare and an invoice for purchases by BandSquare from the Producer, in accordance with the provisions of Article 289 I 2° of the French General Tax Code (Code Général des Impôts) and Article 242 nonies of Schedule 2 of the said code, and will correspond to the total amount excluding taxes of sales concluded by BandSquare less the amount of BandSquare’s Fees, all of the foregoing being subject to VAT at the applicable rate.
In this respect, the Producer expressly authorises BandSquare to fulfil its invoicing obligations on its behalf and in its name through the statement of account constituting an invoice, for the term of this Agreement.
The statement of account constituting an invoice issued by BandSquare, as stated above, must clearly state the taxable amounts and include all mandatory invoicing information along with the following statement:
“Document constituting an invoice issued by BandSquare in the name and on behalf of [Producer’s name]”.
BandSquare shall retain the original statement of account and send the duplicate to the Producer.
The Producer may challenge a statement of account within 15 (fifteen) days of receipt. If its challenge is valid, the Producer shall issue a corrected invoice in accordance with the provisions of Article 289 I 5° of the French General Tax Code. This invoice must include, in addition to the mandatory invoicing information required under Article 242 nonies A of Schedule 2 of the French General Tax Code, the number of the initial invoice and the following statement: “corrected invoice”.
VAT base and applicable rate
For VAT purposes, BandSquare is treated as a “buyer-retailer” of services, in its capacity as a sales agent and pursuant to Article 256 V of the French General Tax Code. Accordingly, it is liable to pay VAT on the VAT-exclusive amount of the Retail Price. The Producer will state the applicable VAT rate prior to the launch of Ticket sales.
Producer’s tax obligations
The Producer retains full liability for its invoicing obligations and the consequences thereof as regards VAT and/or the entertainment tax (impôt sur les spectacles). In particular, the Producer is responsible for ensuring that the correct VAT rate is applied to takings from ticket sales. To this end, the Producer undertakes to state the applicable VAT rate and, particularly, to immediately inform BandSquare of any changes to this rate due to the number of performances of the relevant show.
The Producer shall remain liable to pay VAT and any other tax levied on the operations concerning the Events.
In this respect, the Producer undertakes:
· to pay the VAT stated on the invoices issued by BandSquare and/or the entertainment tax to the French Tax Office;
· to immediately request the duplicate invoice if it does not receive it;
· to report any changes in the information relating to its identity.
Subject to the VAT payable by BandSquare on the amount of its Fees, the Producer will be responsible for paying all other taxes, duties or levies applicable to the Events and shall indemnify BandSquare from and against the payment of such taxes, duties or levies.
This agency agreement may be terminated at any time by both Parties by letter sent by registered post.
> No-breach termination: in the event of an early termination, the Parties shall send the other Party a letter by registered post with acknowledgement of receipt giving one month’s prior notice.
In such a case, the other Party may not claim any compensation, in any form whatsoever, and the sums owed under this Agreement will remain due and payable.
> Breach of contract: either Party may terminate this Agreement early in the event of a failure to fulfil any one of the obligations set out herein and/or any one of the obligations associated with the relevant line of business.
Save in the event of conflicting provisions in this Agreement, providing for an immediate termination in cases where it is not possible to cure the breach, the Agreement will be terminated early fifteen days after formal notice given by registered post with acknowledgement of receipt to the defaulting Party, stating the intention to enforce this express termination clause, that goes unheeded.
If the Agreement is terminated on the ground of a Party’s breach, the defaulting Party shall provide the other Party with all documents in its possession concerning the work carried out under this Agreement.
Ceasing trading: this Agreement may also be terminated early in the event of the compulsory winding-up or administration of one of the Parties in accordance with the statutory and regulatory provisions in force, and subject, where applicable, to any applicable mandatory public policy provisions.
Liability and force majeure
Neither Party may be held liable for the occurrence of a force majeure event, in any circumstances whatsoever.
In particular, they may not be held liable: in the event of storms, strikes, changes in regulations relating to the Events, a decision by a competent authority relating to safety and discipline (in particular, a “behind closed doors” decision), a failure affecting BandSquare’s platform used to collect the proceeds of Tickets for reasons beyond its control or the occurrence of any other force majeure event disrupting the proper performance of this Agreement.
More specifically, BandSquare disclaims all liability in the event that the Producer is unable to access its online administration area or Customers are unable to access the online purchasing area due to problems connected to the Internet network or for any other cause beyond BandSquare’s control.
Likewise, BandSquare disclaims all liability for any incorrect customisation by the Producer resulting in too many Tickets being sold. For the purposes hereof, “incorrect customisation” means: …
BandSquare may not be held liable to the Producer for any loss of profits, loss of anticipated savings, loss of business, loss of chance, loss of turnover, operating losses, lost time, lost customers or damage to its reputation, lost data or damaged data (including the corruption and recovery of all data) or any indirect damage, howsoever caused and whether foreseeable or unforeseeable.
If one of the events referred to above occurs, the other Party expressly waives any right to compensation of any kind whatsoever.
Enforceability of electronic documents
The Parties may rely on the following, in particular to prove any act, fact or omission: programs, data, files, recordings, operations and other elements (such as tracking reports or other statements) that are electronic or produced in an electronic format.
The Producer undertakes not to challenge the admissibility, validity, enforceability or probative value of the above-mentioned electronic elements or elements produced in an electronic format, on the ground that are electronic. Unless proven otherwise, these elements are valid and enforceable between the Parties in the same way, on the same terms and conditions and with the same probative value as any document issued, received or archived on paper.
This Agreement cancels and supersedes all written and oral agreements, handed over or exchanged between the Parties, prior to the signing hereof, relating to the same subject matter.
Each clause of this Agreement, including the recitals and its appendices, expresses the entire obligations of the Parties and constitutes a determinative condition of the Agreement without which the Parties would not have entered into this Agreement, subject to the validity provisions set out below.
Accordingly, no indication or document may give rise to an obligation in respect of this Agreement unless formally recorded in a supplemental agreement signed by both Parties.
In the event that interpretation problems arise between clause headings and the content of the clauses, clause headings should be disregarded.
Changes to the legal personality of the Parties
The Parties may not terminate or amend this Agreement in the event of a merger, partial asset contribution, demerger or any similar transaction affecting them.
If any one of the clauses of the Agreement is declared invalid or unenforceable under a rule of law or a law in force or by any court whatsoever, it will be deemed null and void but this will not affect the validity of the Agreement.
However, if the invalidity or unenforceability of a clause of the Agreement has a serious negative effect on the legal and/or economic balance of the latter, the Parties agree to meet in order to replace the said clause with a valid clause, that is as close as possible to the invalid clause from a legal and economic standpoint.
If a Party fails to enforce any provision of this Agreement, on a permanent or temporary basis, this may not be construed as a waiver of the said Party’s rights arising from the said provision, under any circumstances whatsoever.
This Agreement is personal to the Producer and BandSquare.
Accordingly, it may not be transferred or assigned to a third party, private individual or legal entity, in any manner whatsoever, in whole or in part, without the other Party’s prior written consent.
Neither the Producer nor BandSquare are entitled to assign all or part of this Agreement.
Governing law and jurisdiction
The validity, interpretation and performance of this Agreement will be governed by French law and the Parties expressly intend to refer to this law. Accordingly, French law will be the sole applicable law notwithstanding any conflict of law rules that may apply.
Any dispute relating to the existence, validity, interpretation, performance or termination of this Agreement, that the Parties fail to settle amicably after notice given by a Party of its claim against the other Party, shall be subject to the exclusive jurisdiction of the Courts of competent jurisdiction in Paris. This express jurisdiction clause also applies in the event of multiple defendants and for any application, including interlocutory applications, along with in cases involving third party notices or claims for indemnity and even for emergency or protective measures, in expedited or ex parte proceedings.