Terms of Service (Sellers, ZA)
Last updated: 28 Sept 2020
1. Definitions and Interpretation
Construction of agreement
This agreement comprises the following documents:
- The Covering Letter;
- the Schedules and Annexes; and
- these Standard Terms.
In the event of any inconsistency between the documents comprising this agreement, this agreement shall be interpreted according to the order in which the documents appear above.
Definitions and Interpretation
The Dictionary in clause 22 defines some of the terms used in this agreement and sets out the rules of interpretation which apply to this agreement
The Client grants to Koid the right to supply during the Term the Koid Services in respect of the Event, on the terms and conditions of this agreement.
This agreement commences on the Commencement Date and ends on the Expiry Date, unless terminated earlier under clause 10.
4. Koid’s Obligations
Koid must supply to the Client the Koid Services in respect of the Event in accordance with this agreement.
5. Client’s Obligations
The Client is solely responsible for performing, at its cost, its obligations under this clause 5.
Information Relating to Event
The Client must:
- At the earliest practicable time (and in any case no less than 10 Business Days before the day on which Koid is directed to commence selling the Tickets for the particular Event), notify Koid in writing of all information relating to the Event to which Tickets are to be made available through the System;
- Use reasonable endeavours to ensure that all information it gives to Koid relating to the Event and each Venue is accurate and complete; and
- If the Client receives or becomes aware of any alterations to the information referred to in paragraph (i) or (ii), immediately notify Koid of those alterations.
- Accurately maintain the number of Tickets available for sale or issue via the Koid Service for the Event and bear full responsibility for any Losses or Claims due to over-selling or over-issuing of Tickets to the Event;
- Only use the Koid Service for lawful purposes and only for the purpose of creating an Event page for its Event and selling/issuing Tickets to that Event;
- Not engage in any activity which interrupts or affects the Service;
- Follow any reasonable directions from Koid in relation to its use of the Koid Service;
- Comply with all reasonable rules, policies and procedures which may be published Standard Terms
- Comply with all applicable laws and regulations in relation to Tickets, the Event and this agreement;
- 10.Ensure that its refund policy and any terms and conditions (which are in addition to the standard Koid Terms and Conditions of Sale) governing its Event and Tickets are communicated to Purchasers prior to purchase;
- If client accepts donations in relation to Tickets or the Event and makes representations that the donation is deductible for income tax purposes, ensure that it is registered as a deductible gift recipient, provide accurate information to Purchasers of Tickets in relation to the deductibility of donations and provide receipts to Purchasers which comply with all relevant legal requirements. For the avoidance of doubt, no part of the Ticket price shall constitute a donation and Koid is not responsible for any donation amounts received by it in relation to the Event;
- 12.Notify Purchasers of Tickets if the Event is cancelled, altered, relocated, rescheduled or postponed;
- 13.Where required, provide refunds to Purchasers in accordance with clause 9 of this Agreement;
- 14.If it is not using its own Paygate account or its Merchant Account to receive Ticket proceeds, provide Koid with valid bank account details for receipt of Ticket proceeds;
- 15.Ensure that any advertising in relation to the Event and Tickets is accurate and not misleading;
- 16.Comply with all applicable privacy and spam laws with regard to any Purchaser information (including name, address, mobile number and email address) it obtains via Koid or the Service;
- 17.If it submits content to the Site or Koid Service, whether articles, images or other copyrightable material, ensure that the content it uploads does not infringe the copyright or other rights (including intellectual property rights) of third parties.
Use and promotion of Koid Services
The Client must:
- Only use the Koid Services for lawful purposes and follow any reasonable directions from Koid in relation to the use of the Koid Services;
- Provide all assistance reasonably requested by Koid to enable it to provide the Koid Services in accordance with this agreement;
- Include in its advertising of Event references to Koid and the Network;
- Not supply or use any Ticket stock in respect of the Event other than Ticket stock produced by Koid for use with the System;
- Not sell or permit to be sold any Consignment Tickets and/or Complimentary Tickets in respect of the Event without Koid’s prior consent.
- Cause a sufficient area at each venue to be allocated for use as a Box Office, including an adequate space for a public counter and telephone lines;
- Provide adequate and safe fittings, air-conditioning, lighting, furnishings (including counter and seats) and adequate security devices to secure the Box Office, the Koid Hardware and Software, all Tickets and all Ticket proceeds and credit card dockets;
- Not permit any person to access or use any part of the Koid Hardware and Software other than the Client’s employees who have been approved in writing by Koid or other persons authorised in writing by Koid;
- Ensure that the public have access to the customer counters and customer waiting areas in the vicinity of the Box Office during Box Office opening hours, including appropriate space for, and management of, queues to the Box Office;
- Take out and maintain at all times during the term adequate insurances in respect of the Box Office (including the Koid Hardware and Software) against loss, theft and damage and injury or death to persons;
- Except as expressly set out in this agreement, pay all costs associated with the Box Office, including all necessary electricity, telephone charges and regular cleaning costs.
- The Client will procure access for Koid and its Personnel during normal business hours the right of ingress and egress to or from the Box Office and such other areas of a Venue as it reasonably requires to perform its obligations under this agreement.
6. Koid Hardware and Software
Ownership and removal of the Koid Hardware and Software
At all times, the Koid Hardware and Software remains the sole property of Koid. At the end of the Event, Koid may remove the Koid Hardware and Software in accordance with clause 11.
Use of the Koid Hardware and Software
Koid grants to the Client a non-exclusive right to use the Koid Software. The Client must ensure that:
- The Koid Hardware and Software is only used for the sale of Tickets to Event using the System, and for no other purpose. Ensure information complete: Use reasonable endeavours to ensure that all information it gives to Koid relating to the Event and each Venue is accurate and complete; and
- The Koid Software is used and operated in a proper and skilful manner using only competent and appropriately trained and qualified personnel in compliance with any reasonable operating manual or specification which Koid provides from time to time;
- The Koid Software is not encumbered, moved or modified without Koid’s prior written consent, such consent not to be unreasonably withheld or delayed.
Loss or Damage to Koid Hardware and Software
If any part of the Koid Hardware and Software is damaged (other than by Koid or its Personnel or through fair wear and tear or any latent defect), the Client must pay to Koid the cost of restoring or replacing the Koid Hardware and Software to at least the same condition as it was before the damage occurred. The Client must apply any money received under any insurance or from any third party in connection with such damage in satisfying its obligations under this clause.
Payments relating to the Service are transacted at the Client’s election via one of the following options:
- The Koid payment processing gateway (Paygate); or
- Upon prior agreement with Koid, its own Merchant Account (such as Paygate) which will require a direct debit arrangement between it and Koid;
Third Party Merchant Accounts
8. Fees, Charges and Settlement
What Koid will charge purchasers of Tickets
Koid by default will charge purchasers of tickets a fee that covers both Koid Software Fee and Credit Card Fee as per the Ticketing Proposal / Ticketing Agreement. Koid at Client’s request can add additional charges or a reduced fee which will be added or deducted from ticket receipts accordingly.
Subject to clauses 8 and 9, on the Settlement Days in respect of the Event, Koid must pay to the Client the proceeds of Tickets to the Event sold through the System and received by Koid less any amount Koid is entitled to deduct under clause 8.
Additional Fees Koid will charge the Client
Where applicable, Koid will charge the Client the Fees set out in Koid’s fee schedule as amended from time to time. These amounts relate to optional services which the Client may elect to utilise, for example, printing off hard tickets for the Event.
Payment of Ticket proceeds
The Client has two options in relation to payment of the Ticket proceeds for the Event:
- If the Client elects to use the Koid Gateway for payment processing, subject to clauses 8 and 9, on the Settlement Day, Koid must pay into the Client’s nominated account the proceeds of Tickets to the Event(s) sold through the Koid Service and received by Koid less any amount Koid is entitled to deduct under clause 8.
- If Koid provides consent to the Client to use its own Merchant Account for payment processing, it will be responsible for collecting all proceeds from the sale of Tickets via the Koid Service and Koid will deduct its Fees and any other amounts payable by the Client to Koid under this Agreement or otherwise in accordance with the direct debit agreement in place between the Client and Koid.
Deduction of Amounts Owing
The Client irrevocably authorises Koid to deduct from amounts payable by it to the Client under this clause 8 or otherwise, and to apply to its own account, in and towards satisfaction of all Charges in respect of the Event and any other amounts which are or may become due by the Client to Koid.
Payment by Client of Other Amounts Owing
The Client must pay to Koid all Charges and other amounts owing under this agreement but not deducted under clause 8 within 7 days after Koid issues an invoice to the Client in respect of the amount due.
Any credit card charge backs or reversals received by Koid will be charged to the Client, including any fees charged to Koid by third parties in respect of the charge back.
- In the event of cancelled or rescheduled events, chargebacks, disputed transactions or any other circumstances that may pose significant exposure, risk, or liability to Koid, Koid reserves the right to hold any amount of Settlement funds for a period of ninety (90) days. If Settlements are insufficient, Client shall provide Koid sufficient funds to make refunds immediately upon notice thereof. Failure to comply with clause 8 shall entitle Koid to enforce default interest and contract default fees in accordance with clause 8.
Third Party claims against Koid
If, in Koid’s reasonable opinion, it is likely that a Claim by a party other than the Client will be made against it arising from the Event (including any cancellation of the Event):
- Koid will consult in good faith with the Client prior to taking any further action including, where appropriate, consultation at a CEO-level;
- The Client authorises Koid to retain a reasonable proportion of the Ticket proceeds (such proportion to be determined by the parties acting reasonably);
- If the Claim is settled or resolved by final determination of a court Koid may apply those monies in full or partial satisfaction of any liability which the Client has to Koid in respect of the Event;
- If it is determined finally by a court that the Client has no liability either to Koid or to the purchaser of any Tickets, Koid will release to the Client the Ticket proceeds which it retained pursuant to clause 8.
Title in Ticket Proceeds
Property in all proceeds from the sale of all Tickets sold via Koid Merchant vests legally in Koid at the time of purchase. Koid holds all monies payable to the Client from the proceeds of the sale of Tickets on trust at all times for the Client.
Default and Consequences of Default
Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (3%) per calendar month (and at Koid’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
- If the Client owes Koid any money the Client shall indemnify Koid from and against all costs and disbursements incurred by Koid in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Koid’s contract default fees, and bank dishonour fees).
- Without prejudice to any other remedies Koid may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Koid may suspend or terminate the supply of Services to the Client. Koid will not be liable to the Client for any loss or damage the Client suffers because Koid has exercised its rights under this clause.
Manner and Currency of Payments
All amounts payable under this agreement must be paid by electronic transfer in ZA Rands. Koid is not obliged to accept any currency in respect of Ticket sales other than ZA Rands.
9. Cancellation of Events
If the Event or part of a series of performances comprising the Event is cancelled or postponed the Client must notify Koid immediately to prevent the further sale or issue of Tickets for the cancelled or postponed Event.
If A Refund Is Payable
Unless otherwise set out in this Agreement, the Client is responsible for refunding purchasers of Tickets in accordance with all applicable laws, industry codes, the Koid terms and conditions of sale and any other lawful terms and conditions of sale notified to purchasers of Tickets by the Client during the purchase process. Koid will not be responsible or liable for any refunds, errors in issuing refunds or lack of refunds by the Client.
When Koid is responsible for refunds
Koid will only be responsible for refunding purchasers of Tickets who purchased their Tickets via the Koid Service in the limited circumstance where payments have been processed by the Koid Gateway. After settlement of Ticket proceeds has occurred, Client shall provide Koid sufficient funds to make refunds immediately upon notice thereof. Failure to comply with clause 9 shall entitle Koid to enforce default interest and contract default fees in accordance with clause 8.
The Client agrees to pay Koid in respect of the cancellation of the Event the Cancellation Fee which Koid shall be entitled to retain in all circumstances.
- Koid will notify purchasers of Tickets of any cancellations or postponements of the Event via email at its cost. If a valid email address is not provided by purchasers of Tickets, Koid will bear no responsibility to notify such purchasers of a cancellation or postponement of the Event.
- If Koid is required to notify purchasers of Tickets of a postponement or cancellation of the Event, otherwise than as contemplated under clause 9, the Client must reimburse to Koid the costs and expenses incurred by Koid in giving such notice.
10. Representations, Warranties and Indemnities
General representations and warranties
The Client warrants to Koid that:
- The entering into and performance of this Agreement will not result in any breach of, or constitute a default under, any other agreement to which it is a party, including, any agreement for the sale or other issue of tickets for the Event or the Venue; and
- The number of Tickets made available for sale or issue does not exceed legal, fire or council rules or regulations or other restrictions of the Venue or of governmental departments.
Each party represents and warrants to each other party:
- It is duly incorporated and validly existing under the laws of the place of its incorporation;
- It has full corporate power to execute, deliver and perform its obligations under this agreement; and
- The execution, delivery and performance of this agreement has been properly authorised by it.
- The Client indemnifies Koid for any Loss Koid may incur, or be liable for, arising from or in connection with any breach by the Client of this agreement or any negligent act, omission or default on the part of the Client or its Personnel in relation to the performance or nonperformance of its obligations under this agreement.
- The Client indemnifies Koid against any Loss (including legal fees and expenses) Koid may incur, or be liable for, arising from or in connection with any failure by the Client or its Personnel to comply with all legislation relating to the handling, treatment and use of Ticket purchaser information (including name, address, mobile phone number and email address) that it obtains via Koid or the Koid Service. The Client understands that this indemnity extends to any Loss suffered by Koid as a result of adverse publicity, which is related to the breach of any legislation. To avoid any doubt, the indemnity in clause 10 does not apply to the extent the indemnity is prohibited by law
Limitation of Liability
- Koid excludes, to the maximum extent permitted by law, all express or implied guarantees, warranties, representations or other terms and conditions relating to this agreement or its subject matter, not contained in this agreement. Nothing in this agreement excludes, restricts or modifies any right or remedy, or any guarantee, warranty or other term or condition implied or imposed by any legislation which cannot lawfully be excluded or limited. This may include the South African Consumer Law which contains guarantees that protect purchasers of goods and services in certain circumstances.
- If any guarantee, condition, term or warranty is implied or imposed in relation to this agreement by applicable law (including the South African Consumer Law) and cannot be excluded, restricted or modified (Non-Excludable Provision), and Koid is able to limit the Client’s remedy for a breach of the Non-Excludable Provision, then Koid’s liability for breach of the Non-Excludable Provision is limited to one or more of the following at Koid’s option:
- In the case of services, the supplying of the services again, or the payment of the cost of having the services supplied again; and
- In the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of the goods, the payment of the cost of replacing the goods or acquiring equivalent goods, or the payment of the cost of having the goods repaired. This clause states, subject to Koid’s obligations under the Non-Excludable Provisions and to the maximum extent permitted by law, the entire aggregate liability of Koid and exclusive remedy of the Client (including for any Loss or damage sustained by the Client in connection with this agreement, whether arising in contract, tort (including negligence), statute, equity or otherwise).
- The limitation in this clause and the relevant exclusion does not apply in relation to liability:
- for personal injury (including sickness or death);
- for loss, damage to or loss of use of, any real or personal property; or
- for fraud, dishonesty or wilful misconduct.
- Subject to Koid’s obligations under the Non-Excludable Provisions, Koid’s liability for Consequential Loss is excluded.
- For the purposes of clause 11.3(iv), Consequential Loss means any special, indirect, consequential or punitive loss or damage. For clarity, this does not include loss or damage which may fairly and reasonably be considered to arise naturally from the usual course of things, from the breach or other act or omission in question (the remedy for which loss or damage is limited as described in clause 11.3(ii)).
- Koid cannot guarantee that the Site will be error-free, uninterrupted, nor that it will provide specific results from use of the Site or any content, search or link on it. The Site and its content are delivered on an ‘as-is’ and ‘as-available’ basis.
Koid’s Right To Terminate
Koid may terminate this Agreement and the Client’s use of the Koid Service immediately if:
- An Insolvency Event occurs in relation to the Client;
- The Client breaches any of its obligations under this Agreement; or
- The Client fails to pay any money due to Koid when it falls due.
- Koid believes that continuation of the contract by hosting Client’s events may damage Koid’s brand or risk Koid’s credit card processing facilities.
- Koid believes Client is complicit with users processing fraudulent sales.
Effect of Termination
Termination of this agreement is without prejudice to accrued rights and obligations of a party and any provisions which are intended by their nature to survive termination.
Removal of Koid Hardware and Software
At the end of the Event, the Client must permit Koid to enter the Box Office to remove all Koid Hardware and Software, Ticket stock, advertising and other property of Koid.
12. Force Majeure
Each party is excused from performing its obligations under this agreement to the extent that it is prevented, hindered or delayed in performing such obligations by reason of any cause beyond its reasonable control which it cannot overcome by reasonable measures.
As soon as practicable after an event referred to in this clause occurs, the party affected must notify the other party of the nature and extent of the event.
Subcontracting and delegation
Koid may subcontract or delegate any of its rights or obligations under this agreement in its discretion, provided that such subcontracting or delegation will not relieve Koid of its obligations under this agreement.
All information which a party obtains or of which it is or becomes aware relating to the management, profitability, operation and the business dealings, arrangements and understandings between either of the parties and each other or either of the parties and Venues or other persons in respect of the Event must be held and maintained by such a party in strict confidence.
Information remains confidential
Each party must use its best endeavours to ensure that the information set out in clause 15 remains confidential and is not transmitted or disclosed to any person except to the extent necessary to enable each party to perform and observe the obligations and conditions arising from this agreement and that upon the Expiry Date or the earlier termination of this agreement each party must deliver up to the other or cause to be destroyed, the information in that party’s possession provided by the other party.
Disclosure of information
The parties shall not disclose any information of the other party which is confidential to any person without the consent of the other parties (which shall not be unreasonably withheld) provided always that such obligation shall not apply to:
- Disclosures required by law or a requirement of any regulatory body court or tribunal; information which is in or comes into the public domain other than as a result of a breach of this agreement; or
- Disclosures to the financial accounting or legal advisers of the parties where reasonably required and provided appropriate confidentiality undertakings are obtained,
- and no party shall use any such confidential information other than for the purpose for which it was provided to that party.
15. Tax, Costs and Expenses
Unless otherwise specified, all amounts expressed in this agreement are exclusive of VAT. VAT at 15% will be payable at the same time as the consideration to which it relates.
Koid will issue tax invoices in respect of any supplies made by Koid pursuant to this agreement.
Subject to clause 16, each party must pay any Tax incurred by that party which arises from signing, delivering and performing this agreement.
Costs and expenses
Each party must pay its own costs and expenses of negotiating, preparing, signing, delivering, stamping, registering and performing this agreement and any other agreement or document entered into or signed under this agreement.
Payment of Tax
Client is solely responsible for determining which, if any, sales, use, amusement, value added, goods and services, consumption, excise and other taxes, duties, levies and charges (collectively, “Taxes”) apply to the use of the Services and in doing so agree that it is their sole responsibility to, and that they will, collect, remit and report the correct amounts of all such Taxes to the applicable governmental authorities. If Client does collect Taxes on the Services, those Taxes will be treated like Additional Event Fees and Koid will pay such amounts to you at the same time as the underlying Ticket Receipts.
Koid cannot give you legal or tax advice, so please be sure to check with your own tax advisor about any applicable Taxes. In the event that a governmental authority requires Koid to pay any Taxes attributable to your use of the Services, you agree to promptly and fully reimburse Koid for such Taxes upon demand and all costs, penalties, interest and expenses related thereto.
Additionally, in the event that a governmental authority requires Koid to provide proof that Taxes attributable to your use of the Services were collected, remitted, and reported to the respective government authority, you agree to promptly furnish the requested proof upon Koid’s request within five (5) days of the request.
The Client appoints Koid as its agent to sell Tickets for the Event through the Network. The Client acknowledges that:
- Koid provides ticketing services to a range of venues and promoters and has ongoing business dealings with other venues and promoters;
- this agreement in no way restricts, and the Client agrees not to interfere with, Koid’s other business dealings; and
- Koid is not obliged to disclose to it the confidential information of another promoter.
The Client acknowledges that this agreement is an arms-length commercial contract which sets out in full Koid’s duties and obligations as agent. The Client irrevocably and unconditionally releases Koid from any further duties or obligations which may be implied at law. This agreement does not create a fiduciary relationship or a relationship of employment or partnership between the parties or an agency in which Koid is the principal.
17. Obligation to act in good faith
Koid and Client must act in good faith in respect of this agreement. Neither Koid nor the Client may do anything which will circumvent the operation of this agreement or deprive either Koid or the Client of its rights under this agreement.
18. Privacy and use of Customer Data
- Koid may collect and use the personal information of purchasers of Tickets. Each party agrees to comply at all times with all relevant laws with respect to the collection and use of such information.
19. Payment Card Industry Data Security
The Client acknowledges that Koid is required to comply with the Payment Card Industry Data Security Standard (Version 3.2.1, released May 2018, as amended from time to time) (PCI Data Security Standards).
The Client will use reasonable commercial endeavours to adhere to and be compliant with the PCI Data Security Standards.
The Client acknowledges that it is responsible for the security of cardholder data of Customers that the Client possesses or otherwise stores, processes or transmits on behalf of Koid, or to the extent that they could impact the security of the Customer’s Cardholder Data Environment (as defined by the PCI Data Security Standards).
Any notice or other communication given under this agreement including, but not limited to, a request, demand, consent or approval, to or by a party to this agreement: Must be in legible writing and in English and emailed to firstname.lastname@example.org
If a provision of this agreement, or a right or remedy of a party under this agreement is invalid or unenforceable in a particular jurisdiction:
- It is read down or severed in that jurisdiction only to the extent of the invalidity or unenforceable; and
- It does not affect the validity or enforceability of that provision in another jurisdiction or the remaining provisions in any jurisdiction.
- This clause is not limited by any other provision of this agreement in relation to severability, invalidity or unenforceable.
Amendments and Waivers
- This agreement may be amended only by a written document signed by the parties. A waiver of a provision of this agreement or a right or remedy arising under this agreement, including this clause, must be in writing and signed by the party granting the waiver.
- A single or partial exercise of a right does not preclude a further exercise of that right or the exercise of another right. Failure by a party to exercise a right or delay in exercising that right does not prevent its exercise or operate as a waiver. A waiver is only effective in the specific instance and for the specific purpose for which it is given.
The rights and remedies of a party under this agreement do not exclude any other right or remedy provided by law.
No provision of this agreement merges on completion or termination of this agreement.
Continuing indemnities and survival of indemnities
Each indemnity contained in this agreement is a continuing obligation despite a settlement of account or the occurrence of any other thing, and remains fully effective until all money owing, contingently or otherwise, under an indemnity has been paid in full. Each indemnity is an additional, separate and independent obligation and no one indemnity limits the generality of another indemnity. Each indemnity survives termination of this agreement.
Each party must do all things necessary to give full effect to this agreement and the transactions contemplated by this agreement.
This agreement supersedes all previous agreements about its subject matter and embodies the entire agreement between the parties. The Client acknowledges that no representations or warranties in connection with the Koid Services have been made by Koid or anyone on behalf of Koid other than as set out in this agreement.
The Client acknowledges that monetary damages alone would not be adequate compensation to Koid for the Client’s breach of its obligations under this agreement (and clause 1.1 in particular) and that specific performance of those obligations is an appropriate remedy, particularly having regard to the unique nature of the rights granted to Koid under this agreement.
Third party rights
Only Koid and the Client has or is intended to have a right or remedy under this agreement or obtain a benefit under it.
The parties acknowledge that they have received legal advice about this agreement or have had the opportunity of receiving legal advice about this agreement.
This agreement may be signed in any number of counterparts and all those counterparts together make one instrument.
Governing law and Jurisdiction
The laws of South Africa govern this agreement. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of South Africa and waives any claim or objection based on absence of jurisdiction or inconvenient forum or immunity in relation to this agreement in any jurisdiction for any reason.