Merchant Agreement

Last Updated: January 6, 2020

 

NOTE: To learn more about Fete Finder’s Legal Terms, take a look here.

 

Merchant Agreement

This Merchant Agreement and the rights and obligations contained in this Merchant Agreement are in addition to and are incorporated into the Fete Finder Terms of Service by reference. Nothing in this Merchant Agreement will be deemed to modify, waive, amend or rescind any other term of the Terms of Service. Please read this Merchant Agreement carefully: it contains important information about payment and refund terms and requirements, event prohibitions, rights you provide to us, and other rights, representations and liabilities. Further, any terms herein are governed by the dispute resolution terms (and subject to all other terms of the Terms of Service, including the arbitration provisions set forth in Section 8 of the Terms of Service. We recommend that you read those Terms, as they may affect your rights.

 

1. Who We Are.

1.1 Fete Finder.

Welcome to Fete Finder! We are a ticketing and carnival information platform that is dedicated to bringing the soca/caribbean community together through our love of music, the culture and each other. While also gathering and sharing each others’  experiences throughout the soca/ caribbean community . Through our platform and services, we enable people all over the world to create, discover, share and register for caribbean events.

 

1.2 The Services.

Fete Finder’s products, features and offerings are available (a) online through our Fete Finder website ; (b) through mobile applications, webpages, application programming interfaces, and subdomains (“Applications”). (a), and (b) are collectively referred to as “Fete Finder Properties” or our “Services”. Fete Finder is a Maryland limited liability corporation with its principal place of business at address, Reg. No. (“Fete Finder,” “us,” “we” or “our”). When this Merchant Agreement mentions “Fete Finder,” “we,” “us,” or “our,” it refers to FeteFinder, LLC. and its Affiliates, and subsidiaries, and each of its and their respective officers, directors, agents, partners and employees. An “Affiliate” of any entity means any person or entity that controls, is controlled by, or that is under common control with, such entity, whether as of the date of your agreement to this Merchant Agreement or thereafter. For purposes of this Agreement, “control” means ownership or control, directly or indirectly, of more than 20% of the outstanding voting stock of an entity or otherwise possessing the power to direct the management and policies of an entity. 

 

1.3 Promoters and Patrons.

When this Merchant Agreement uses the term “Promoter” we mean event creators using the Services to create, list or promote events for Patrons using our Services (a) to consume information about, or purchase tickets for events from Promoters (“Patrons”), or (b) for any other reason. Promoters, Patrons and third parties using our Services are all referred to in these Terms collectively as “Users”, “you” or “your”.

 

2. Our Merchant Agreement.

2.1 Purpose.

The following policy sets forth the terms and conditions upon which Promoters can use the Services to create, promote and/or collect sales proceeds for selling tickets and/or registrations to an event (this “Merchant Agreement”). By accepting the Terms of Service, you agree to the terms of this Merchant Agreement without modification and enter into a binding contract with Fete Finder, which will be applicable when and if you use the Services to create, promote and/or collect sales proceeds for selling tickets and/or registrations to an event.

 

3. Additional Registration Information.

3.1 Additional Information.

As part of the creation of a paid event or at any time following such creation, you may be required by Fete Finder to provide additional information (beyond the information required to register for the Services) about yourself, the entity you represent (if any) and the principals/beneficial owners of the entity you represent (if any) (collectively, “Additional Registration Data”). As an example, the Additional Registration Data may include current address, doing business as (DBA) names, description of products, website address, bank account or other payment account information, Tax Identification Numbers, date of birth, passport or drivers license number, country of origin, copies of government identification documents and other personal information. This information may be used to verify your identity, the validity and/or legality of your transactions and/or whether you qualify to use the Services for paid events. You agree to: (a) provide this information in a timely, accurate and complete manner and (b) maintain and promptly update this information in a timely manner to ensure it remains accurate and complete at all times.

 

3.2 Disclosure Authorization.

Promoter agrees that Fete Finder is permitted to share Registration Data (as defined in the Terms of Service), Additional Registration Data and information relating to your events and transactions on the Services with our Payment Processing Partners (as defined below), the Card Schemes (as defined below) and Alternative Form of Payment Frameworks (as defined below) and with your bank or other financial institution, in each case to the extent your transactions or events involve such third parties. In addition, you authorize Fete Finder to verify your Registration Data and Additional Registration Data and conduct due diligence on you through third parties, including third party credit reporting agencies.

 

3.3 Failure to Provide.

We reserve the right to suspend your Fete Finder account or to withhold any amounts due to you in the event that we reasonably believe that your Registration Data or Additional Registration Data is inaccurate or if you fail to provide all Registration Data or Additional Registration Data within the timeframes requested.

 

4. Payment Methods; Payment Process.

4.1 Overview.

(a) Payment Methods.

There are two types of payment processing options Promoters may elect to use to collect sales proceeds for tickets or registration they sell to Patrons: (i) “Facilitated Payment Processing” or “FPP,” which consists of Promoters directly receiving all sales proceeds (for the avoidance of doubt, including, without limitation, ticket face value, Fete Finder Service Fees, Fete Finder Payment Processing Fees, taxes, and royalties) from ticket, registration and merchandise (or other item) sales and donations solicited via the Services (collectively, “Event Registration Fees”) using third party payment services, such as PayPal®; and (ii) “Fete Finder Payment Processing,” “EPP,” or the “EPP Service,” in which Fete Finder acts as Promoter’s limited payments agent for the purpose of processing Event Registration Fees using its Payment Processing Partners (as defined below).

(b) Fete Finder’s Role.

For the avoidance of doubt, Fete Finder does not and will not provide banking, deposit taking, stored value, insurance or any other financial services to a Promoter other than, for Promoters who elect EPP, serving as a limited payments agent as set forth below. To provide the EPP Service, Fete Finder utilizes third party gateways, payment processors, merchant acquirers and/or merchant acquiring banks with which we have relationships (collectively, “Payment Processing Partners”) and both Promoters and Fete Finder are subject to the rules and regulations of such Payment Processing Partners. Additionally, in certain instances, for you to participate in the EPP Service, you must have entered into a separate agreement with our Payment Processing Partner (the “Payment Processor Agreement”). For convenience, Fete Finder shows you a balance of proceeds for your events in your Fete Finder account, however, that balance merely reflects the amount of Event Registration Fees collected by a third party payment service (FPP) or by our Payment Processing Partners (EPP), and in the case of EPP, represents only a general unsecured claim against Fete Finder and not a store of value or a deposit/current account.

(c) Confirmations.

Upon an order being placed by a Patron and confirmed through Fete Finder, Fete Finder generates a confirmation message and issues a unique confirmation number for such Patron’s order. Promoter agrees to unconditionally accept, honor and fulfill all ticketing, registration, merchandise and donation commitments that have been confirmed by Fete Finder through the Services. Promoter agrees it is Promoter’s responsibility to verify a Patron’s confirmation number and/or any event restrictions prior to the applicable event.

(d) Fees.

Regardless of the payment processing option elected, Promoter agrees to pay Fete Finder all applicable service fees for each ticket, registration or other item sold or donation solicited via the Services (the “Fete Finder Service Fee”). To the extent Promoter uses EPP, Promoter also agrees to pay Fete Finder the additional Fete Finder Payment Processing fee (the “Fete Finder Payment Processing Fee”) for each ticket, registration or other item sold or donation solicited via the Services. The Fete Finder Service Fee and the Fete Finder Payment Processing Fee vary by country and processing currency. The current fees can be found here. Note that these fees are subject to change from time to time with respect to transactions that occur following the change. In addition, Promoter may from time to time request additional Services from Fete Finder, including without limitation marketing and promotion services, which Fete Finder may provide at its discretion and the terms of which will be covered by a separate written agreement. Fees for such ancillary Services (the “Ancillary Fees”) will be disclosed to Promoter prior to Promoter’s acceptance of such Services. The Fete Finder Service Fee, the Fete Finder Payment Processing Fee and Ancillary Fees are referred to herein as the “Fees.” In addition to such Fees, Fete Finder may also charge you, at Fete Finder’s standard rates, for research, including, but not limited to, (i) research required to respond to any third party or government subpoena, levy or garnishment on your account, and (2) research and activities necessary to verify and execute any payee change, whether pursuant to the Uniform Commercial Code (as discussed further below) or court order.

Fete Finder may charge various fees to Patrons that are not passed on to Promoters, related to ticket sales, processing, handling, and access to various Fete Finder content and services. We have sole discretion to set and assess such fees.

 

4.2 Facilitated Payment Processing.

(a) Independent Relationship.

When using FPP, Promoters and Patrons effect the applicable payment transaction through a third party service and are bound by the applicable terms of use governing such service. Promoter will collect all Event Registration Fees through the applicable third party service and Fete Finder accepts no (and disclaims all) obligation or liability with respect to such collection or the performance or nonperformance of such third party service.

(b) Invoices.

Invoices for Fees are sent to Promoters monthly for Fees incurred in the previous month, provided that our failure to send a timely invoice will not excuse payment obligations. All invoices are due and payable within thirty (30) days of delivery of the invoice.

 

4.3 Fete Finder Payment Processing.

(a) Underwriting.

If you have requested EPP, then upon receipt of Additional Registration Data and if applicable your separate acceptance of the Payment Processor Agreement, Fete Finder will determine, in its discretion (which may be based on input from our Payment Processing Partners), whether you are qualified to use EPP. If you are not qualified to use EPP, but you are otherwise qualified to use the Services, Fete Finder will notify you and you may switch to FPP unless the reason that you do not qualify for EPP is that your event is a Prohibited Event, you are a Prohibited Merchant and/or your transactions are Prohibited Transactions, in each case as such terms are defined in Section 5 of this Merchant Agreement. For risk management and security reasons and to meet the requirements imposed by our Payment Processing Partners, we may from time to time in our discretion impose a transaction limit on the amount of any given transaction that you process through EPP and you authorize us to reject any transaction over that limit. We may also from time to time in our discretion impose a reserve requirement on you under Section 4.3(f).

(b) Payment Process.

When using EPP, payment processing occurs directly through our Payment Processing Partners, and you understand and agree that within five (5) business days after the successful completion of an event, Fete Finder will on your behalf cause our Payment Processing Partners to pass along to you all Event Registration Fees related to such event that have been processed by our Payment Processing Partners, subject to (i) deduction of all applicable Fees then due; (ii) our right of setoff against any debts or other amounts owed to us or any of our Affiliates by you or any of your Affiliates under this Merchant Agreement, the Terms of Service or other applicable agreement for Services provided by Fete Finder or any of its Affiliates; (iii) any other deductions authorized pursuant to this Merchant Agreement; and (iv) any reserves established as set forth in subsection (f) below. Such payouts will be made only to the payout information designated by the Promoter on the Services under “Payments & Payouts.” Payouts are made by ACH, or for Promoters with Event Registration Fees in USD only. In addition, EPP may allow you to accept payments from card based payment networks, such as Visa®, MasterCard®, American Express® and Discover® (collectively, the “Card Schemes”), and non-card based payment networks such as direct debit and other alternative forms of payment (the “Alternative Form of Payment Frameworks”). Except to the extent that the Commercial Entity Agreement (as defined below) is applicable to you, and notwithstanding the Payment Processor Agreement you may have entered into with our Payment Processing Partner, or a Card Scheme, you are not a direct party to any agreement with any Payment Processing Partner, Card Scheme or Alternative Form of Payment Framework, nor are you a third party beneficiary of any such agreement. In addition, by accepting a particular Card Scheme payment type (e.g., MasterCard, Visa, American Express), you are authorizing the owner of that Card Scheme and its affiliates to use your name, address and website URL in any media from time to time. You agree that, regardless of the delivery option used by Fete Finder to make a payout to you, you will not request or use any information related to that payout method for any purpose that you know or should know to be fraudulent, erroneous or otherwise in violation of this Merchant Agreement.

For ACH transactions, if any bank account number you provide to us, including a bank account number you provide as part of your Additional Registration Data is inaccurate, you agree that we are still entitled to make payment to that account number, even if the bank account is not owned by you. You agree that we may rely solely on the bank account number you provide to us as the proper identification of your bank account, even if the bank account number identifies a different account from your account. You also agree to reimburse us for any losses or expenses we incur as a result of our reliance on any bank account number you provide to us.

You agree that we may, from time to time, in our sole discretion, without notice to you, (a) setoff against your or your Affiliate’s reserve as defined under Section 4.3(f), (b) setoff against any Event Registration Fees you receive and any other fees for Services provided to you or any of your Affiliates by Fete Finder or any of its Affiliates (including for any Fete Finder fees or any other amounts you owe to Fete Finder under this Merchant Agreement, the Terms of Service, or any other agreement between you and us), or both (a) and (b), based upon the level of refunds, disputed charges, chargebacks, customer complaints, allegations of fraud, changes in your or your Affiliate’s credit profile or the underlying event(s)’ risk profile, fraudulent conduct by you, any of your Affiliates or anyone acting on your behalf, or breaches of the Terms of Service, including this Merchant Agreement or any other applicable agreement for Services provided by Fete Finder or any of its Affiliates. We may exercise such setoff rights before we make any payout to you. We are not liable to you for any claims resulting from our decision to exercise our setoff rights. We may also exercise any of our rights and remedies under Section 4.5 of this Agreement regarding recovery of such amounts due and owing to us from you.

You understand that we may also debit your Event Registration Fees if Fete Finder is served with legal process seeking to attach or garnish any of your funds or property in Fete Finder’s possession.

You also understand that, as provided under Section 9-406 of the Uniform Commercial Code, we may be required, upon receipt of a notice of assignment and payment direction from your secured party (lender), to pay all or a portion of your Event Registration Fees as directed by your secured party. If we receive such a notice and direction, we will, after deducting our fees and expenses of compliance as provided above, make payments to your secured party as so directed without notice to you.

(c) Appointment as Agent.

With respect to any events for which Promoter uses EPP, Promoter hereby appoints Fete Finder as Promoter’s limited payment agent for the purpose of facilitating the receipt of payments made by Patrons for such events through our Payment Processing Partners, and the disbursement of those payments to Promoter. Promoter agrees that a payment made by a Patron that is processed by Fete Finder will be considered the same as a payment made by a Patron directly to Promoter and Promoter will sell or provide all advertised goods and services to the Patron as if Promoter had directly received the Event Registration Fees from such Patron, regardless of whether the Event Registration Fees have yet to be or are ever received from Fete Finder. Promoter agrees that Fete Finder, in its role as limited payments agent, is authorized to (i) enable Patrons to transfer or upgrade a ticket and/or registration (if such transfers are permitted by Promoter during the event registration process); (ii) hold, disburse and retain proceeds on Promoter’s behalf pursuant to this Merchant Agreement, or otherwise instruct our Payment Processing Partners to do so; (iii) issue refunds to Patrons as set forth in Section 4.4 below; and (iv) manage credit card chargebacks as set forth in subsection (g) below. In accepting appointment as the limited agent of Promoter, Fete Finder assumes no liability for any acts or omissions of Promoter and Promoter understands that Fete Finder’s obligation to pay Promoter is subject to and conditional upon Patrons’ actual payment of Event Registration Fees. Promoter further authorizes Fete Finder to delegate its obligations under this Merchant Agreement to certain of its affiliated entities both within and outside the United States, provided, that Fete Finder will remain liable for the discharge of its obligations under this Merchant Agreement by such affiliated entities.

(d) Advances.

Promoter agrees that all Event Registration Fees for a given event are earned by Promoter only following the conclusion of the applicable event. Fete Finder, in its discretion, may determine to advance a portion of Event Registration Fees to Promoter prior five (5) business days after the successful completion of an event, on such terms and conditions set forth in (i) this Merchant Agreement; (ii) the applicable agreement for Services entered into by you and Fete Finder; and/or (iii) such terms that Promoter and Fete Finder agree to in a separate agreement. Promoter agrees that any payments made by Fete Finder of Event Registration Fees prior to the fifth (5th) business day after the end date of the successful completion of the applicable event are merely advances of amounts that may become due to Promoter under this Merchant Agreement. If Fete Finder decides to advance a portion of Event Registration Fees to Promoter, Promoter acknowledges and agrees that Fete Finder may at any time (x) terminate or suspend Promoter’s right to receive such advance payments; and/or (y) alter the terms (i.e. frequency, reserve rate and maximum aggregate cap) of such advance payments made to Promoter. In addition, Promoter agrees that Fete Finder may demand back such advances (or any portion thereof) from time to time in its discretion based upon the level of refunds, disputed charges, chargebacks, customer complaints, allegations of fraud, changes in Promoter’s credit profile or the underlying event(s)’ risk profile, or breaches of the Terms of Service, including this Merchant Agreement. Upon receipt of notice of any such demand, Promoter will thereupon promptly pay back to Fete Finder the portion of any such advance demanded. Promoter acknowledges and agrees that Fete Finder has the right to withhold funds as set forth in Sections 4.3(b) and 4.5(a) of this Merchant Agreement. Promoter also acknowledges and accepts its obligations under Section 4.3(g) and 4.4(c) of the Merchant Agreement, including its obligations to reimburse Fete Finder for refunds and credit card chargebacks.

(e) Cancellations; Nonperformance.

No payments will be made to Promoter with respect to any event that is cancelled or with respect to which Fete Finder believes there is a risk of cancellation or nonperformance, unless Fete Finder receives adequate security (as determined by Fete Finder in its discretion) for Promoter’s obligations under this Merchant Agreement. In addition, no Event Registration Fees for a given event will be settled to Promoter until that event is successfully completed. If payments have already been settled to a Promoter for a cancelled event, Promoter will immediately refund to a payment address designated by Fete Finder all such payments upon cancellation of such event for the purpose of effecting refunds if refunds are being made under Section 4.4. You are responsible for complying with the requirements of Section 4.4 and the requirements of the Promoter Refund Policy Requirements which are in addition to and are incorporated into the Terms of Service by reference. If you do not remit funds due to Fete Finder that are sufficient to cover refunds due to Patrons for an event cancellation or nonperformance, including, but not limited to, any mandatory refunds under Section 4.4(c) below, then you acknowledge and agree that the amount of such funds shortfall will become due and owing from you to us under these Terms of Service, including this Merchant Agreement, until you have satisfied the amount in full and such amounts are also subject to the provisions of Sections 4.4(f) and 4.5 of this Agreement.

(f) Reserves and Fete Finder Right of Setoff.

Fete Finder reserves the right to retain a certain percentage of Event Registration Fees and any other fees for Services provided to you or any of your Affiliates by Fete Finder or any of its Affiliates (with such percentage being determined by Fete Finder in its discretion) to fund a reserve (i) at any time as we determine in our discretion to be necessary based upon the level (or expected level) of refunds, disputed charges, chargebacks, customer complaints, allegations of fraud or changes in Promoter’s credit profile or the underlying event(s)’ risk profile; and (ii) as otherwise necessary to secure the performance of your obligations under the Terms of Service, including this Merchant Agreement, or to protect Fete Finder against fraudulent or erroneous activity. Fete Finder’s right to hold a reserve will continue following the applicable event(s) and until either (A) Promoter and any of its Affiliates have discharged all obligations under the Terms of Service or other applicable agreement for Services provided by Fete Finder or any of its Affiliates and the applicable periods for refunds, disputed charges, chargebacks, and complaints have passed or (B) Promoter and any of its Affiliates have otherwise provided Fete Finder or any of its Affiliates with adequate security (as determined by Fete Finder or its Affiliates in their discretion) for its obligations under the Terms of Service or other applicable agreement for Services provided by Fete Finder or any of its Affiliates, whether matured or unmatured, contingent or non-contingent, or liquidated or unliquidated. Further, the reserve is subject to the right of setoff as set forth in Section 4.3(b). In the event that the exercise of our or our Affiliates’ setoff right does not fully cover the amount of funds due and owing from you or any of your Affiliates to us or any of our Affiliates under the Terms of Service or other applicable agreement for Services provided by Fete Finder or any of its Affiliates, including this Merchant Agreement, then such amount of funds will be deemed due and owing to us until you have satisfied the amount in full.

(g) Chargebacks; Reversals.

Any credit card chargebacks or other transaction reversals initiated against Fete Finder or its affiliates for any reason (except to the extent they are caused solely by Fete Finder’s negligence or willful misconduct) with respect to a Promoter’s event and all related credit card association, payment processing, re-presentment, penalty and other fees and expenses incurred by Fete Finder or its affiliates in connection with such chargebacks will ultimately be the responsibility of Promoter, and Promoter agrees to promptly and fully reimburse Fete Finder for such amounts on demand. As part of Fete Finder’s activity as limited payments agent, Fete Finder will use commercially reasonable efforts to manage the re-presentment of such chargebacks and reversals on behalf of Promoter and Promoter hereby authorizes Fete Finder to do so and agrees to use reasonable efforts to cooperate with Fete Finder in such re-presentment. However, Fete Finder will have no obligation to re-present any chargeback that it believes in its discretion it is more likely than not to lose or that relates to a transaction that should be refunded in accordance with the Promoter’s refund policy or the provisions of Section 4.4(c) below. Understanding the nature of the Payment Scheme Rules (as defined below) and the discretion that they provide to the Card Schemes and Alternative Form of Payment Frameworks, both parties agree that Fete Finder’s loss of any chargeback that has been re-presented by Fete Finder will not in any way limit Promoter’s obligation to reimburse Fete Finder and its affiliates under this paragraph.

(h) Currencies.

Fete Finder only provides the Fete Finder Payment Processing Service for certain currencies and for Promoters in certain locations listed here. In addition, Event Registration Fees collected in a currency may only be paid out to Promoter in the currency in which they are collected. Fete Finder does not provide currency conversion services. Finally different payment options or payment methods may be available to you depending on the currency in which you collect Event Registration Fees and your location as detailed here.

(i) Payment Scheme Rules.

The Card Schemes and Alternative Form of Payment Frameworks require that you comply with all applicable bylaws, rules and regulations published by them from time to time (collectively, the “Payment Scheme Rules”). We may be required to change this Merchant Agreement in connection with amendments to the Payment Scheme Rules. Depending on what payment methods you elect to use in EPP, you may be subject to different Payment Scheme Rules. You agree to comply with any applicable Payment Scheme Rules as in effect from time to time. These Payment Scheme Rules, include without limitation, a requirement to submit only bona fide transactions, limits on how you use the Card Scheme logos and trademarks and authorization to use certain of your information to show that you participate in the Card Schemes. The Payment Scheme Rules are publicly available from the websites of the related Card Schemes and Alternative Form of Payment Frameworks.

(j) Special Payment Terms.

The following additional terms apply to the extent you use the corresponding payment option:

 

i. Pay by Invoice. You may elect to add “pay by invoice” as an option to your EPP Service. If you use pay by invoice you must supply bank account information requested by Fete Finder, which information will be displayed on invoices and order confirmations delivered by Fete Finder to the applicable Patron after completion of a transaction on the Services. Promoter will then collect the funds from the Patron and then mark the ticket/registration as “paid” in a designated area of the Services. Once marked as paid, Fete Finder will cause the Patron’s ticket to be validated such that when scanned with one of Fete Finder’s Applications it will show as valid. It is Promoter’s sole responsibility to provide accurate bank account information, collect all amounts from Patrons, process refunds (if applicable) off the Services, and accurately mark tickets/registrations as paid or unpaid on the Services in the designated area. For the avoidance of doubt, with “pay by invoice” the payment transaction is effected solely between Promoter and the applicable Patron.

 

4.4 Refunds.

(a) Refund Policy and Process.

Regardless of what payment method is selected, Promoter agrees to communicate a refund policy to Patrons with respect to each event posted on the Services that meets the requirements of the Promoter Refund Policy Requirements and to administer such policy in accordance with its terms. The Promoter Refund Policy Requirements are incorporated by reference into this Merchant Agreement. All refunds for EPP transactions must be processed through Fete Finder, unless otherwise agreed by Fete Finder. For EPP transactions, Promoter can issue refunds to Patrons directly through the Services within certain windows permitted by our Payment Processing Partners. If the refund is outside such windows, then it will need to be processed manually by Fete Finder. Fete Finder may determine in its discretion not to process any refunds which are manual, in which case they will be processed directly by Promoter. Consistent with the Patron Refund Policy Requirements, refunds that you are responsible for due to the cancellation or nonperformance of an event are subject to the following refund requirements:

 

(i) In the event of a full or partial event cancellation, Promoter agrees to issue refunds to Patrons either by using backup funding sources within the Fete Finder platform (e.g. additional security sources), or by remitting funds due for refunds back to Fete Finder so that refunds can be processed by Fete Finder on the Promoter’s behalf.

(ii) Promoter agrees that no refunds will be made outside of the Fete Finder platform (e.g. offline), and EPP refund transactions may only be employed for bona fide event refunds, and not for other money transfers, including without limitation cash advance transactions.

(iii) If Promoter elects to remit funds back to Fete Finder so that Fete Finder can process refunds on Promoter’s behalf, Promoter must remit funds to Fete Finder that are sufficient to cover refunds due to Patrons within 5 days of the cancellation of the event.

(iv) Promoter agrees to notify Patrons of the event cancellation as soon as reasonably possible and prior to the event start time.

(v) Promoter will be the main point of contact for Patrons with refund requests, and Promoter will instruct the Patrons not to contact Fete Finder with refund requests.

(vi) Promoter will provide clear instructions and contact information to Patrons so that Patrons can make refund requests, or, alternatively, Promoter will turn on the in-product refund request function within the Fete Finder platform and respond to any Patron refund requests received.

(vii) Promoter acknowledges that Fete Finder reserves the right to charge the Promoter for the cost of chargebacks related to the cancelled event, and such amounts are also subject to the provisions of Sections 4.4(f) and 4.5 of this Agreement.

(viii) If the Promoter cancels only part of a multi-day event, then Promoter agrees to refund a pro-rata monetary value portion of the purchase price of a multi-day ticket based on the corresponding monetary value of the portion of the multi-day event that was cancelled. For example, if Promoter sells a 3-day ticket to a festival for $150, and cancels 1 day of the festival, the Promoter must provide a $50 refund to Patrons for the cancelled day.

(ix) If the Promoter is offering Patrons an “other make good” refund in lieu of purchase price refund, then such offer must be of equal or greater value to the value of the ticket for the cancelled event and such value must be clearly communicated to the Patrons. Promoter agrees that it will be fully liable for the cost of chargebacks received related to purchases even if an “other make good” refund is given.

(b) Refund Disputes.

Regardless of what payment method is selected, all disputes regarding refunds are between Promoter and its Patrons. In the event of a dispute, Fete Finder may try to mediate, but ultimately it is Promoter’s obligation to settle the dispute. Notwithstanding the foregoing, with respect to EPP transactions, Fete Finder will have the right to make refunds on Promoter’s behalf as set forth in subsection (c) below.

(c) Mandatory Refunds.

Notwithstanding the foregoing, Promoter authorizes Fete Finder to make refunds in the following situations (i) Promoter specifically authorizes the refunds at the time; (ii) the event description presented to a Patron at time of purchase is significantly different from the actual event; (iii) Attendees are unable to attend the event due to failure of the Promoter to adequately plan for capacity, ingress or egress, or attendance will otherwise subject the Patron to safety concerns; (iv) Fete Finder believes in its discretion that specific orders should be refunded under the Promoter’s posted refund policy or Fete Finder’s Promoter Refund Policy Requirements, including without limitation, that they are required by applicable local, state, provincial, national or other law, rule or regulation or the Payment Scheme Rules; (v) Fete Finder believes in its discretion that the refund request, if not granted, will lead to a chargeback that Fete Finder is more likely than not to lose; (vi) Promoter failed to list a refund policy on the applicable event page and Fete Finder believes in its discretion that a refund would be reasonable under the circumstances; (vii) Fete Finder believes in its discretion that specific orders are fraudulent (e.g., made with stolen credit cards or otherwise not bona fide transactions); or (viii) Fete Finder believes in its discretion that the order is a duplicate. Promoter also authorizes Fete Finder to make refunds of any and all orders (including those for unrelated events) if (A) Fete Finder believes in its discretion that Promoter has engaged in any fraudulent activity or made any misrepresentations; (B) Fete Finder believes in its discretion that there is substantial risk of nonperformance by Promoter with respect to the applicable event or future events; (C) Fete Finder believes in its discretion that it is likely to receive complaints, refund requests, transaction reversals and/or chargebacks with respect to a substantial amount of orders; or (D) Fete Finder believes in its discretion that Promoter is a Prohibited Merchant, has used the Services to process Prohibited Transactions or to manage Prohibited Events or that failing to make the refunds would otherwise expose Fete Finder to legal liability. Because all sales are ultimately made by Promoters, Promoter hereby agrees to promptly and fully reimburse Fete Finder and its affiliates upon demand for refunds that Fete Finder makes pursuant to this Merchant Agreement, other than to the extent that the necessity for such refunds is caused by Fete Finder’s negligence or willful misconduct. Promoter acknowledges and agrees that chargebacks will result in losses to Fete Finder in excess of the amount of the underlying transaction and that by refunding transactions in advance of a chargeback Fete Finder is mitigating such losses and its damages with respect to Promoter’s breach of this Merchant Agreement. If you do not remit funds to Fete Finder that are sufficient to cover mandatory refunds as described by this Section 4.4(c) for an event cancellation or nonperformance, then you acknowledge and agree that the amount of such funds shortfall will become due and owing from you to us under the Terms of Service, including this Merchant Agreement, until you have satisfied the amount in full and such amounts are also subject to the provisions of Sections 4.4(f) and 4.5 of this Agreement.

 

4.5 Non-Exclusive Remedies; Taxes.

(a) Non-Exclusive Remedies.

If Promoter fails to pay to Fete Finder or any of its Affiliates any amount owed pursuant to the Terms of Service (including without limitation this Merchant Agreement) or any other applicable agreement for Services provided by Fete Finder or any of its Affiliates when due and following a late payment notice being delivered by Fete Finder, such amount will bear interest calculated from the date due until paid in full at a rate equal to the lesser of (i) one percent (1%) per month, compounded monthly; and (ii) the maximum amount permitted by applicable local, state, provincial, national or other laws, rules or regulations. In the event any amounts are owed by Promoter or any of its Affiliates to Fete Finder or any of its Affiliates under the Terms of Service (including without limitation this Merchant Agreement) or any or other applicable agreement for Services provided by Fete Finder or any of its Affiliates, Fete Finder or its Affiliates may, without limiting its other rights and remedies and to the extent permitted by applicable local, state, provincial, national or other laws, rules or regulations (A) withhold any amounts due to Promoter or any of Promoter’s Affiliates, whether for a particular event or for any other event that Promoter or any of Promoter’s Affiliates lists through the Services or other applicable agreement for Services provided by Fete Finder or any of its Affiliates, and use the withheld amount to setoff the amount owed by Promoter or any of Promoter’s Affiliates to Fete Finder or any of its Affiliates; and/or (B) send an invoice to Promoter or any of its Affiliates for such amounts to the extent Promoter’s or any of its Affiliate’s outstanding balance is insufficient to cover these costs, in which case Promoter or any of its Affiliates will pay Fete Finder or any of its Affiliates such invoiced amounts within thirty (30) days after the date of the invoice. If payment for any amounts due to Fete Finder or any of its Affiliates hereunder is not made by the Promoter or any of its Affiliates when due and after receiving a late payment notice from Fete Finder or any of its Affiliates, Fete Finder or any of its Affiliates reserves the right, in its discretion and without limiting its other rights and remedies, to suspend or terminate Promoter’s or any of the Promoter’s Affiliate’s registration for any Services provided by Fete Finder or any of its Affiliates (including any and all accounts that Promoter or any of a Promoter’s Affiliates may have). In addition, any such unpaid amounts due and owing to Fete Finder or any of its Affiliates are subject to collections in accordance with Section 4.5(b).

(b) Collections; Costs of Recovery.

Fete Finder reserves the right to pursue any late and unpaid amounts due and owing to Fete Finder or any of its Affiliates for collections if such amounts are not paid within thirty (30) days after the date of the invoice. In addition, Promoter agrees to promptly and fully reimburse Fete Finder or any of its Affiliates upon demand for all out-of-pocket costs and expenses, including without limitation, reasonable attorneys’ fees and expenses, incurred by Fete Finder or any of its Affiliates in collecting past due amounts or any other amounts due and owing from Promoter or any of its Affiliates under this Merchant Agreement, the Terms of Service or any or other applicable agreement for Services provided by Fete Finder or any of its Affiliates. Promoter and any of its Affiliates agree that if Fete Finder or any of its Affiliates must seek collections for past due amounts and Promoter or any of its Affiliates does not respond or pay in full after receiving a collection notice, Fete Finder or any of its Affiliates reserves the right to pursue outstanding balances through judicial proceedings, and such actions are expressly excluded from any arbitration provisions set forth in the Terms of Service.

Use or any or other applicable agreement for Services provided by Fete Finder or any of its Affiliates.

(c) Taxes.

(i) You are solely responsible for determining which, if any, sales, use, amusement, value added, consumption, excise and other taxes, duties, levies and charges (collectively, “Taxes”) apply to your use of the Services and to sales you make using the Services. You agree that it is your sole responsibility to, and that you will, collect and remit the correct amounts of all such Taxes to the applicable governmental authorities (“Tax Authorities”). Fete Finder does not represent, warrant or guarantee that any tax tools or tax calculators (“Tax Tools”) provided to you will meet all tax requirements that may be applicable to you or that such Tax Tools will result in your collection or remittance of all applicable Taxes, which Taxes may vary based on the nature of your event, the nature of your tax status (individual, entity, business, Patron, etc.), your location, the location of your Patrons, credits and deductions for which you may qualify and other factors, and you hereby release Fete Finder from any and all liability with respect to your use of the Tax Tools. None of such Tax Tools should be considered legal or tax advice. If you do collect Taxes and use Fete Finder Payment Processing, Fete Finder will pay such amounts to you at the same time as the underlying Event Registration Fees. You are responsible for remitting all such Taxes to the appropriate Tax Authorities. If you use any Tax Tools that require you to input a tax registration number, you represent and warrant that such tax registration number is true and correct. Fete Finder 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 Tax Authority requires Fete Finder to pay any Taxes attributable to your use of the Services or to sales you make using the Services, you agree to promptly and fully reimburse Fete Finder for such Taxes upon demand and all costs, penalties, interest and expenses related thereto.

(ii) Notwithstanding the preceding paragraph, Fete Finder may, in certain jurisdictions, be required to collect and remit Taxes for your sales of tickets and/or registrations facilitated using the Services. In order to determine whether any Taxes must be collected on your behalf, Fete Finder may request certain information when you create an Event using the platform. Such information may relate to your tax exempt status, the nature of your Event and/or other similar information. If such information is requested, you represent and warrant that the information you provide is true and correct. Fete Finder cannot give you legal or tax advice, so please be sure to check with your own legal and/or tax advisor about any information you provide through the platform. In the event that a Tax Authority requires Fete Finder to pay any Taxes attributable to your Event as a result of the information you provided Fete Finder being incorrect, you agree to promptly and fully reimburse Fete Finder for such Taxes upon demand and all costs, penalties, interest and expenses related thereto.

(iii) Notwithstanding paragraph (i) in this section, Fete Finder may, in certain jurisdictions, be required to collect and remit Taxes on Fete Finder Service Fees and Fete Finder Payment Processing Fees (“Fete Finder Fees”) to the Tax Authorities. In such jurisdictions, Fete Finder will collect from you Taxes on Fete Finder Fees, and you agree to pay such Taxes. Fete Finder may, at its sole election, invoice you for Taxes on Fete Finder Fees or withhold (from amounts it would otherwise pay to you) the amount of Taxes on Fete Finder Fees. With the exception of Taxes on Fete Finder Fees that Fete Finder collects from you pursuant to this paragraph and Taxes collected and remitted pursuant to paragraph (ii) in this section, you remain responsible for collecting and remitting the correct amount of any Taxes that apply to your use of the Services and to sales you make using the Services. A list of the jurisdictions in which Fete Finder collects Taxes on Fete Finder Fees is available here.

(iv) To comply with sales tax regulations of the European Union (the “EU”), Fete Finder is required to (A) collect Value Added Tax (“VAT”) from Promoters on the Fete Finder Service Fee for paid tickets or registrations sold on or through the Site by Promoters residing in the EU who have not provided Fete Finder with their VAT Identification Number (“VAT ID”); and (B) remit any such VAT collected to the relevant tax authority. If you provide us with your VAT ID, we will not collect VAT on the Fete Finder Service Fee. It is your sole responsibility to ensure that the VAT ID you provide to Fete Finder (if any) is accurate, complete and properly formatted. Please be aware that falsification or misrepresentation of information to evade payment of VAT may result in fines and/or criminal prosecution. You agree to promptly and fully reimburse Fete Finder for all out-of-pocket costs and expenses arising out of your falsification or misrepresentation of a VAT ID on the Site. Fete Finder does not require Promoters to have a VAT ID. However, if you are a Promoter residing in the EU, and you do not have a VAT ID or you do not provide us with your VAT ID, Fete Finder will collect and remit VAT on the Fete Finder Service Fee on your behalf. In the interest of clarity, Fete Finder does not collect and remit VAT on the Fete Finder Payment Processing Fee or on the price of the tickets or registrations you sell on or through the Site. To learn more about Fete Finder’s process for collecting and remitting VAT, see our article here.

(v) Except as set forth in Sections 4.5(c)(ii) and 4.5(c)(iii), in addition, due to IRS regulations, if Fete Finder processes transactions and issues you payouts (A) for more than twenty thousand dollars ($20,000) in gross sales; and (B) for more than two hundred (200) transaction orders, in each case during a given calendar year and in the aggregate across all of your accounts, Fete Finder is required to report to the IRS (i) the gross amount of transactions for which you have been paid in that calendar year and in each month of that calendar year; (ii) your name; (iii) your address; and (iv) your Tax Identification Number (“Your Tax Information”). As part of these IRS regulations, Fete Finder is required to either (A) collect Your Tax Information; or (B) establish that you are a foreign person not subject to US taxes, before your accounts pass the two hundred (200) order transaction threshold in the aggregate. Once your accounts cross the two hundred (200) order transaction threshold, you agree that you will not receive any further payments from Fete Finder until either (A) or (B) above are satisfied. To learn more about these IRS regulations and why we are required to do this, see our 1099-K FAQ here.

(vi) Fete Finder reserves the right to withhold the payment of any amounts owed to you hereunder and dispose of them as required by applicable local, state, provincial, national or other law, rule, regulation, judgment or order, in each case as determined by Fete Finder, or to seek later payment from you of any amounts on taxes uncollected and unremitted, related to your events.

 

4.6 Commercial Entities.

From time to time, one or more Card Schemes may require that you enter into an additional agreement directly with one of our Payment Processing Partners or with the applicable Card Scheme. Typically this happens if your transactions exceed one hundred thousand dollars ($100,000) with respect to a particular Card Scheme on an annual basis in a given geography. If we believe that your account is likely to be subject to this additional requirement, we will provide you with a “Commercial Entity Agreement” that you must agree to in order to continue using EPP. If you fail to accept that “Commercial Entity Agreement,” we may suspend or terminate your account or transfer your account to FPP.

 

4.7 Escheatment.

If your account has had no activity for a period of time set forth in applicable unclaimed property (e.g., escheatment) laws and we hold funds related to your account, then we will notify you as required by applicable laws. If you do not claim your unclaimed funds within the timeframe notified to you, then we will escheat them to the applicable governmental authority in accordance with applicable laws.

 

5. Prohibited Merchants; Prohibited Events; Prohibited Transactions.

5.1 Prohibited Merchants.

By registering for the Services and accepting this Merchant Agreement, you represent and warrant that:

(a) you are not located in, and you are not a national or resident of, any country to which the United States, United Kingdom, European Union, Australia or Canada has embargoed goods and/or services of the same type as the Services (“Restricted Countries”);

(b) you are not a person or entity or under the control of or affiliated with a person or entity that (i) appears on the U.S. Office of Foreign Assets Control’s Specially Designated Nationals List, Foreign Sanctions Evaders List or Palestinian Legislative Council List; (ii) appears on the U.S. Department of State’s Terrorist Exclusion List; (iii) appears on the Bureau of Industry and Security’s Denied Persons List; (iv) appears on the Consolidated List of Targets published by the U.K. HM Treasury; (v) appears on the Consolidated List published by the A.U. Department of Foreign Affairs and Trade or (vi) is subject to sanctions in any other country; and

(c) you are not listed in the MasterCard MATCH terminated merchant database or Visa terminated merchant file and your right to access each Card Scheme and each Alternative Form of Payment is not presently revoked or suspended.

If you fall into any of the categories set forth above, as determined by Fete Finder in its discretion, you are a “Prohibited Merchant.”

 

5.2 Prohibited Events.

You may not post events to the Services or engage in activities through the Services that:

(a) violate or facilitate the violation of any applicable local, state, provincial, national or other law, rule or regulation;

(b) would be prohibited under the Payment Scheme Rules;

(c) take place in Restricted Countries; and

(d) contain any Content (as defined in the Terms of Service) that would violate the Terms of Service, or the Fete Finder Community Guidelines.

 

Any event that falls into any of the categories set forth above, as determined by Fete Finder in its discretion, is a “Prohibited Event.”

 

5.3 Prohibited Transactions.

You may not use EPP to process any of the following transactions and you represent and warrant that you will not submit for processing through the Services:

(a) any transaction that would violate or is considered “high risk” (or another restricted category) by the Payment Scheme Rules, including any transaction regarding adult-related content or activities, illegal goods or services including cannabis, or paraphernalia associated with any illegal goods or service, purchase of crypto-currency, raffles, sweepstakes, or gambling;

(b) any transaction that is fraudulent or criminal in nature;

(c) any transaction that would constitute a “restricted transaction” as defined in the Unlawful Gambling Enforcement Act of 2006 or Regulation GG; and

(d) any transaction that would constitute sending money to another party other than for the purchase of bona fide tickets or registrations to, or solicitation of a donation for, events, or sale of items related to such events.

 

Any transaction that falls into any of the categories set forth above, as determined by Fete Finder in its discretion, is a “Prohibited Transaction.”

 

5.4 Remedies.

In the event that Fete Finder discovers that you are a Prohibited Merchant, that you have posted a Prohibited Event and/or that you have attempted to process or processed a Prohibited Transaction, then Fete Finder may take any or all of the following actions in its discretion in addition to any and all remedies that Fete Finder may have under the law or elsewhere in the Terms of Service:

(a) suspend or terminate your Fete Finder account;

(b) alter, edit, or remove any Prohibited Event or any portion thereof;

(c) block, reverse or refund any or all of your transactions;

(d) hold any and all funds associated with your account to the extent required by applicable local, state, provincial, national or other law, rule, regulation, judgment or order; and

(e) refer you, your events and/or your transactions and information relating to the same (without further notice to you) to our Payment Processing Partners, the Card Schemes, the Alternative Form of Payment Frameworks and/or applicable law enforcement agencies for further action.

 

6. Representations And Warranties.

In addition to the representations and warranties contained herein, you represent and warrant to us that (a) if you represent an entity, that entity is duly organized, validly existing and in good standing under the laws of the state, province or country of its formation; (b) you, or the entity you represent (if applicable), have all requisite power and authority to enter into this Agreement and to carry out the transactions contemplated hereby; (c) the entering into and performing of this Agreement by you, or if you represent an entity by the entity you represent, will not result in any breach of, or constitute a default under, any applicable local, state, provincial, national or other law, rule, regulation, judgment or order, or other agreement to which you or it is a party, including without limitation, any other agreement for the sale of tickets or registrations; and (d) if you represent an entity, you have the full right, legal power and actual authority to bind such entity to the terms and conditions hereof.

Further, you represent, warrant and acknowledge that you (not we) are solely responsible for ensuring that your events are ticketed correctly, and that only valid tickets are honored. You understand and agree that Fete Finder is not liable for any costs arising from whether a presented ticket is or is not valid, or is or is not honored, including any tickets procured through, or representing, fraud or deceptive practices.

 

7. Termination.

In addition to our right to terminate your use of the Services under the Terms of Service, Fete Finder may terminate this Merchant Agreement and your right to use the Services to create, promote and collect sales proceeds for events (a) if you are in violation or breach of any provision of this Merchant Agreement; (b) if our Payment Processing Partners and/or the Card Schemes or Alternative Form of Payment Frameworks terminate our right to provide the EPP Service or your right to accept payments via the EPP Service in their sole discretion; (c) if Fete Finder is served with legal process seeking to attach or garnish any of your funds or property in Fete Finder’s possession; or (d) Fete Finder is put on notice pursuant to UCC 9-406 of a “Notice of UCC Demand” or similar communication, or a UCC-1 financing statement, informing Fete Finder that you have granted a right to assignment of payments to your lender as a secured party.

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