DELUXE DIGITAL CINEMA - TERMS AND CONDITIONS - AUSTRALIA
1. General Application. Any Services ordered by Customer and completed by A. P Facilities Pty Limited. or the Deluxe entity providing the Services (“Deluxe”) will be exclusively subject at all times to the following Standard Terms and Conditions (“Standard Terms”) (together with any invoices, deal memos, exhibits and schedules entered into between Customer and Deluxe, collectively, the “Contract”). Unless otherwise expressly accepted by Deluxe in writing, any terms and conditions of the Customer that are inconsistent with these Standard Terms will be excluded. These Standard Terms will apply irrespective of any other terms that the Customer may include in its purchase order.
2. Orders. Deluxe will not be under any obligation to perform any Services according to the Contract unless Deluxe receives, on a title by title basis, an order from the Customer for the performance of the Services and Deluxe decides in its discretion to accept such order either by a written confirmation of order within ten (10) business days or the actual performance of the Service ordered. Until such time as the order has been accepted by Deluxe, the order will not be binding upon Deluxe. Deluxe may without consent (but without reducing its obligations to the Customer) (i) satisfy any obligation under this Contract by causing one or more of its Affiliates to perform such obligation, or (ii) sub-contract all or any of its rights and obligations to provide the Services.
3. Payment Terms and Conditions. Customer will pay Deluxe the amount invoiced to Customer within thirty (30) days following date of invoice. If, at Customer’s request or consent, or as otherwise stipulated in the Contract, overtime or premium time work is undertaken, or if Extraordinary Costs are incurred, Customer agrees to pay Deluxe, upon demand, the additional expense thereof. In the event Customer fails to pay an undisputed amount to Deluxe in due time, Deluxe shall be entitled to suspend the performance of its obligations until Customer has paid all amounts due and/or to terminate the Contract. All undisputed overdue payments shall be furthermore subject to a late payment interest at the rate of three percent (3%) per month from the due date until the date when all outstanding payments have been paid in full. Customer further agrees to pay all reasonable and direct administrative costs, incurred by Deluxe, in collecting any outstanding amounts. All prices exclude any services that are not expressly included (e.g., storage, freight or delivery) and all amounts payable by Deluxe for any sales, use, value added, GST, PST, customs, duties, manufacturing, processing, stamp, exhibition or other direct tax of a similar nature imposed by any foreign, federal, state, provincial, municipal or other governmental authority having jurisdiction upon any item of work, labor, services or materials to be furnished by Deluxe for the Services rendered to Customer, which, if applicable, will be added to Deluxe’s fees and paid by Customer. All payments will be made free of any deduction, withholding or set-off whatsoever.
4. Extraordinary Costs. Deluxe may pass along to Customer, in the form of price increases, actual increases in Extraordinary Costs as and when Deluxe incurs the relevant Extraordinary Cost increase(s) during the Term of the Contract, provided such increase(s) will not be retroactive. Deluxe will provide Customer with prior written notice not less than thirty (30) days before implementing any such price increase. If Customer does not agree to such cost increase, it may terminate the Contract on written notice to Deluxe within such 30 day period. The words “Extraordinary Costs” mean actual, direct, out-of-pocket, costs paid to third parties by Deluxe for materials and/or services provided as part of the Services (e.g., changes in the cost of physical media or adjustments to carrier rates).
5. Equipment and material. Unless otherwise specified in the Contract, Deluxe will, at its own expense, provide the facilities, tools, equipment and materials necessary to perform the Services, including, but not limited to, the physical media (such as hard drives) that the digital cinema prints are placed on, and these may carry the Deluxe logo and/or trademark (“Deluxe Material”). Deluxe will retain title to all Deluxe Material. Customer will, at its own cost and expense, sign and deliver additional documents, and will take such further actions that are commercially reasonable and necessary to evidence, perfect, maintain and enforce Deluxe’s interest in the Deluxe Material. Any tangible materials, equipment, content or content elements delivered to Deluxe in connection with the Services by or on behalf of Customer (“Customer Deliverables”) will be provided at Customer’s expense, and shall remain the property of Customer (without prejudice to third parties’ rights). Deluxe’s obligations under the Contract are subject to the Customer Deliverables being in a commercially acceptable condition for Deluxe to perform the Services. Deluxe will not be responsible for any damages, loss or delays caused by any failure of the Customer to deliver such Customer Deliverables on a timely basis or in a commercially acceptable quality. Deluxe accepts and processes the Customer Deliverables entirely at the Customer’s sole risk and Deluxe shall not be liable for any loss or damage to the Customer Deliverables of any kind whatsoever (except to the extent such loss or damage has been caused or contributed to by Deluxe). Deluxe does not insure any of the Customer Deliverables while in its possession or in transit. Customer agrees to fully insure all Customer Deliverables delivered to or deposited with Deluxe against all insurable risks.
6. Termination. Either party may terminate the Contract on thirty (30) calendar days prior written notice if the other party: (i) materially defaults in the performance of its duties or obligations under the Contract and does not cure the default within thirty (30) days after receipt of a written notice of the default or (ii) admits in writing that it is unable to pay its debts when due.
7. Customer Representations and Indemnity. Customer represents and warrants that (i) it is the sole owner of, or has all necessary rights to possess, use and direct Deluxe to possess, use and process the Customer Deliverables for the purposes set forth in the deal memo (if any), (ii) it has requisite authority to provide orders hereunder in respect of the Customer Deliverables and that, in Deluxe carrying out the Services in accordance with this Contract, the Customer Deliverables will not infringe any third party’s intellectual property rights and (iii) the Customer Deliverables do not contain elements of an obscene nature or that would subject Deluxe to any civil or criminal proceedings. Customer will defend, indemnify and hold Deluxe and its officers, directors, employees and agents of Deluxe (the “Indemnified Parties”), harmless from any and all third party claims, demands, actions, suits, proceedings, damages, judgments, losses, fees and expenses and liabilities of any nature whatsoever (“Losses”) suffered or incurred by the Indemnified Parties (including reasonable court costs and attorneys’ fees) to the extent such Losses arise out of or in connection with: (i) the breach or alleged breach of any representation or warranty made by the Customer under the Contract, (ii) the publication, processing, use, distribution and/or exhibition of Customer Deliverables in accordance with this Contract, (iii) the Customer’s libel, slander, defamation, invasion of privacy or infringement of patent, copyright, trademark or other proprietary right, and/or (iv) Deluxe’s carrying out or following the instructions of Customer. Deluxe holds the benefit of each indemnity, promise and obligation in the Contract that benefits it or any Indemnified Party on Deluxe’s own behalf and on trust for each of the Indemnified Parties.
8. Limitation of Liability. Subject always to clause 10, if, as a result of a default in the performance of the Services provided by Deluxe, a theater is unable to successfully ingest or playout a digital cinema package (“DCP”) replicated by Deluxe, Customer’s sole remedy will be, at Deluxe’s cost, for Deluxe to use its commercially reasonable efforts to correct any fault or defect in the relevant part of the Services (including distributing a replacement DCP to the destination directed by Customer). Notwithstanding the foregoing, if the default is demonstrated to be the direct result of: (a) the acts or omissions of Customer (other than any acts or omissions which are permitted under this Contract) or any theater personnel; (b) the applicable digital cinema playback equipment; (c) a force majeure event; or (d) delays and failures by freight service providers, Deluxe will use its commercially reasonable efforts to notify Customer regarding such default, cooperate with Customer, and correct such default at Customer’s cost. Customer further acknowledges that any resulting schedule delays related to said default will be Customer’s responsibility. Subject always to clause 10, neither party will be liable to the other party, or anyone claiming through the other party, whether in contract, tort (including negligence), statute or otherwise under this Contract, for (i) any loss of revenue or profits, loss of data or loss of goodwill and/or (ii) any special, punitive, indirect, incidental or consequential losses or damages (even if such loss or damage is foreseeable). Each party will only look to the other party and not to any director, officer, employee or agent of the other party for satisfaction of any claim, demand or cause of action for damages, injuries or losses incurred as a result of the other party’s action or inaction. Notwithstanding anything in the foregoing to the contrary, and subject always to clause 10, Deluxe will not be liable to Customer, in contract, tort (including negligence), statute or otherwise under this Contract, for an amount exceeding the total amount of the Services billed to Customer from the commencement of the Contract to the date the loss or damage was incurred; provided that if such period exceeds twelve (12) months, then such limitation on liability shall not exceed the total amount of the Services billed to Customer in the twelve (12) months preceding the date such loss or damage was incurred.
9. Exclusions. For the avoidance of doubt, the Services do not include any representation or warranty by Deluxe that: (i) the digital equipment at any theatrical complex is functioning prior to or after delivery or (ii) that any particular content booked or otherwise provided for exhibition at such complex will actually be exhibited after delivery. Subject always to clause 10, Deluxe hereby excludes and disclaims to the fullest extent permitted by law any and all warranties, terms and conditions (whether express, implied by statute, contract, course of dealing or otherwise), including, without limitation, any implied warranties as to merchantability, fitness for a particular purpose or satisfactory quality
10. Non-excludable Rights. Nothing in this Contract is intended to exclude, restrict or modify any rights or guarantees that cannot be excluded, restricted or modified (“Non-excludable Rights”). The limitations on and exclusions of each party’s liability contained in this Contract apply only to the full extent permitted by law. Where Deluxe is legally entitled to do so, Deluxe's liability in respect of such Non-excludable Rights, is limited at its option to: (i) in the case of goods, any one or more of the following: (A) the replacement or repair of the goods or the supply of equivalent goods; or (B) the payment of the cost of replacing or repairing the goods or of acquiring equivalent goods; or (ii) in the case of services, any one or more of the following: (A) the supplying of the services again; or (B) the payment of the cost of having the services supplied again.
11. Confidentiality. The Contract, the Deluxe Material, the Customer Deliverables (the “Information”) are confidential and/or proprietary and will be deemed to have been received in strict confidence and will be used only for the purpose of performing the Services. Either party will use the same means as it uses for its own confidential information, but in any event not less than reasonable care, to prevent the disclosure and to protect the confidentiality of the Information during the Term. No such Information will be disclosed by the recipient party, its agents, representatives or employees to any third party without the prior written consent of the other party. The foregoing will not prevent either party from using or disclosing Information that (i) belongs to such party (it being understood, for the avoidance of doubt and for the purpose of this clause, that the Contract, the Deluxe Material and the performance of the Services belong to Deluxe and the Customer Deliverables belong to the Customer), (ii) is required to be disclosed pursuant to a requirement of a governmental agency or law so long as the disclosing party, to the extent possible, provides the other party with notice of such requirement and the opportunity to challenge such requirement before the relevant governmental agency or court before any such disclosure, (iii) is publicly known and not as a result of an unauthorized disclosure, or (iv) was independently developed without the benefit of the Information or was acquired from a third party that was not operating under a continuing obligation of confidence to the disclosing party.
12. Relationship of Parties. The parties are and shall remain independent contractors and nothing in the Contract or the nature of the Services to be provided will be deemed to cause the Contract to create an agency, partnership, or joint venture between the parties.
13. Applicable Law. This Contract and any non-contractual obligations arising in connection with it will be governed by the laws of New South Wales, Australia (without regard to its laws relating to choice-of-law) and the parties consent and agree that the courts of New South Wales, Australia will have non-exclusive jurisdiction with respect to any action that any party desires to commence arising out of or in connection with this Contract.
14. Force Majeure. Neither party (“Affected Party”) will be liable to the other for any loss or damage of any kind due to Affected Party’s performance being prevented, hindered, or delayed or rendered uneconomic by reason of circumstances or events beyond the control of Affected Party, including, without limitation, any Acts of God, fire, explosion, whole or partial satellite malfunctions, uplink failures, internet outages, communications line failures or power failures, strike, sabotage, act or threat of terrorism, governmental act or omission, inability to obtain the necessary labor, materials or facilities, delay from a subcontractor caused by an event of force majeure (however, in no event shall Customer’s failure to make payment when due be excused by a force majeure event). In the event of a force majeure delay where Deluxe is the Affected Party, any applicable delivery dates will be deemed extended for the period necessary to overcome the effects of the force majeure but not less than the duration of the force majeure event.
15. Amendments; Waivers and Cumulative Remedies. The Contract may not be amended or modified other than by an agreement in writing signed by all parties. Any waiver of any right or remedy requires the written consent of the waiving party. No failure by any party to insist on the strict performance of any provision of the Contract, or to exercise any right or remedy, will be deemed a waiver of such performance, right or remedy, or of any other provision of the Contract nor will it be deemed a waiver of similar terms, conditions or obligations in the future.
16. Trademarks and Intellectual Property. As between Customer and Deluxe, Deluxe owns and shall retain all right, title and interest, including, without limitation, intellectual property rights in and to any proprietary tools, methods or methodologies, systems, know-how, concepts, ideas, technology, information, materials, techniques, expertise, equipment, workflows, processes, and the like used or improved by Deluxe in rendering the Services (collectively “Deluxe IP”), provided that Customer will retain ownership of any intellectual owned by it at the commencement of the Contract or any intellectual property it develops independently of the Contract . No portion of the Deluxe IP will be deemed a “work for hire” and Deluxe will not be restricted in any way with respect thereto. Customer acknowledges and agrees that Deluxe shall have the right to use Deluxe IP in providing substantially similar services to third parties and the Deluxe IP constitutes Deluxe’s trade secrets. Notwithstanding anything to the contrary in the Contract, Deluxe will not be prohibited or restricted at any time by Customer from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services, not uniquely applicable to Customer.
17. Severability. Whenever possible, each provision of the Contract will be interpreted in such a way as to be effective and valid under applicable law. If any provision of the Contract is finally held by a competent authority to be illegal, unenforceable, or invalid in whole or in part for any reason, that provision or such part will be ineffective only to the extent of such prohibition or invalidity, and will not affect the legality, enforceability, or validity of the remainder of the Contract. If any such provision or part is stricken in accordance with this paragraph, then the stricken provision or part will be replaced by a new provision or part, to the extent reasonably possible, with a legal, enforceable, and valid provision that preserves the intent of the parties reflected in the Contract and that comes closest to expressing the intention of the stricken provision or part.
18. Notices and Communications: All notices and communications hereunder (business and/or legal) will be sent to the applicable account executive of the other party; provided that, in the case of legal notices to Deluxe, a copy of such legal notice will be sent concurrently to: 2130 N. Hollywood Way, Burbank, California, 91505 Attn: General Counsel. Said notices and communications will be deemed to have been duly given by either party when remitted in hand or delivered to the other party. Either party will promptly inform the other party of any change in its address.
19. Assignability. The Contract shall not be assigned by either party without the prior written consent of the other party, which consent will not be unreasonably withheld, delayed or conditioned; provided, however, that either party may assign the Contract without the other party’s prior written consent to (i) any person or entity with which such party is merged or consolidated, (ii) any person or entity that acquires all or substantially all of such party’s assets or equity securities of whatever type, or (iii) its parent company or any of its affiliates or subsidiaries. Where Customer assigns the Contract in terms of (i) (ii) or (iii) above to a competitor of Deluxe, Deluxe shall be entitled to immediately terminate the Contract on the giving of notice.
20. Publicity. Where the Services form part of any project or theatrical release of Customer’s picture, the Customer hereby grants Deluxe the limited right to exhibit the work, or excerpts thereof, on Deluxe’s websites, in social media, in press releases, or in “demo reels” for the limited purpose of demonstrations of Deluxe’s work in accordance with standard industry practice. Prior to the project or theatrical release of the picture, Deluxe may include the “teaser trailer” of the picture in a demo reel with the prior approval of the Customer (not to be unreasonably withheld or delayed).
Additional Terms Applicable to Electronic Delivery Services
1. DEFINITIONS. As used herein, the following terms shall have the meanings ascribed below:
“Agents” means any subcontractors and service providers supplying services on behalf of Service Operator (which includes but is not limited to Bitcine Technologies Incorporated).
“Broadband Modem” means a desktop form factor modem adhering to the provided circuit type.
“FilmVault Server” means a 1RU rack mountable or desktop form factor computer server.
“Documentation” means any and all the documents made available to the Exhibitor by the Service Operator which set out a description or function of the Digital Delivery Services (including the Infrastructure).
“DCP” means a unique collection of digital files used to store and convey digital cinema audio, image and data files.
“Electronic Delivery Service” means Service Operator’s electronic content delivery service.
“Exhibitor” means the exhibitor receiving the Electronic Delivery Service hereto and shall include each of its PES.
“Firewall Appliance” means a desktop form factor firewall appliance located between the Broadband Modem and FilmVault Server.
“Infrastructure” means the any and all hardware (including the FilmVault Server) and Software supplied by Service Operator or its Agents for the provision of the Electronic Delivery Services.
“Installation Questionnaire” means the Service Operator’s onboarding form.
“Intellectual Property Rights” means copyrights, patents, trademarks or other intellectual property rights owned by a party.
“Participating Exhibitor Site(s) / (PES)” means the cinema locations of the Exhibitor that receive the Electronic Delivery Services.
“Pull” means the process of content being pulled by Exhibitor from a folder in the FilmVault Server and ingested into the TMS.
“Service Operator” means the Deluxe entity providing the Electronic Delivery Service.
“Software” means the software owned or licensed by Service Operator and used by Service Operator as part of the Electronic Delivery Service.
“Theatre Management System/(TMS)” means information technology systems within the PES where content is ingested.
2. USE OF THE ELECTRONIC DELIVERY SERVICE
2.1 Content Delivery
2.1.1 The content will, where appropriate, be delivered by Service Operator in DCP compliant format or such other format as agreed between the parties.
2.1.2 The content will be made available via a Pull method.
2.1.3 The content will be downloaded to the FilmVault Server and will remain in situ for a period of 2 weeks whereafter, the content may be purged by Service Operator. Notwithstanding the aforementioned, Service Operator may purge the content at any stage at the request of the content owner/licensor.
2.1.4 Prior to the purging of the content, the Exhibitor shall be required to ingest the content into its respective TMS.
2.1.5 Service Operator shall be entitled to purge content as soon as the content is ingested.
2.1.6 The Exhibitor must advise Service Operator no later than 72 hours prior to a screening should it no longer hold the required content in the TMS.
2.1.7 Where the Exhibitor fails to comply with its obligations under the Agreement and Service Operator is required to redeliver the content (“Redelivery”) then in such instance, Exhibitor shall be liable for the Redelivery cost of such content via the Electronic Delivery Service or where the content is required to be dispatched by way of HDD, plus associated shipping costs.
2.1.8 Storage space management within the FilmVault Server will be carried out by the Service Operator.
2.1.9 The Exhibitor shall at all times ensure that its respective storage devices have sufficient storage space to allow for content to be downloaded, transferred and/or ingested.
2.1.10 The Electronic Delivery Services are provided on a non-exclusive basis.
2.2 Service Desk
2.2.1 The Service Operator will provide the Exhibitor with access by email and telephone to a service desk for the Exhibitor to report any issues with content delivery or the Infrastructure.
2.2.2 The Exhibitor shall immediately report to the service desk any instances of: (A) a suspected or actual degradation, damage or destruction of the Electronic Delivery Service or Infrastructure; and/or (B) a suspected or actual breach of security.
2.3 Security
2.3.1 The Service Operator will implement and maintain appropriate security measures to maintain the security and integrity of its systems and the Infrastructure and the security and integrity of content sent to the Exhibitor.
2.3.2 The Exhibitor shall be responsible for any damage to the Infrastructure (including any cabinets enclosing it) except to the extent caused by an act or omission of the Service Operator, and shall ensure its proper use and handling while under its control. Where Infrastructure is damaged, destroyed or lost due to the negligence of the Exhibitor (including its employees, representatives and/or agents), then Exhibitor shall be liable for the replacement costs (including any delivery charges) of such Infrastructure.
2.3.3 The Exhibitor shall only connect its TMS to the Infrastructure and only by means of network interface ports on the FilmVault Server that have been installed and maintained by the Service Operator unless otherwise agreed in writing.
2.3.4 The Service Operator will not use the Electronic Delivery Service for the transmission or storage of any content or traffic or in any other manner for which breaches any copyright or obligation of confidence, or which is otherwise illegal or unlawful, or which is designed to interrupt, destroy or limit the functionality of the content or Infrastructure, or which is detrimental to the provision of the Electronic Delivery Service. The Exhibitor will not attach or install any unauthorized equipment or software to the Infrastructure unless it is approved in writing by the Service Operator. The Exhibitor will not access, amend, copy or in any way tamper with the Infrastructure except as part of routine operations in accordance with procedures agreed in writing with the Service Operator.
2.3.5 The Service Operator reserves the right to suspend access to the Electronic Delivery Service if the Exhibitor is in material breach of the Agreement.
2.3.6 Risk in the Infrastructure passes to an Exhibitor on delivery of Infrastructure to Exhibitor at its allocated PES. Following delivery, Exhibitor shall bear all risk of damage, excluding normal obsolescence, to or loss or destruction of the Infrastructure by reason of any cause whatsoever, including without limitation fire, flood, earthquake, natural disaster, casualty, accident or theft.
3. WARRANTIES
Exhibitor represents and warrants that: where it specifically requests delivery of content that it has obtained all rights necessary to receive the DCP and use the content for its intended use, and nothing contained in or related to the DCP (or Exhibitor’s use thereof) shall violate, infringe or conflict with any rights of any person or entity, including, without limitation, any copyright, literary, musical, dramatic, artistic, trademark, contract, privacy or publicity rights, or any other property or personal right; or result in any liability, monetary or otherwise, to Service Operator or any Agent. Neither Service Operator nor any of its Agents warrant that the Electronic Delivery Services will be uninterrupted (including broadband connectivity) or error free; nor does Service Operator or any of its Agents make any warranty as to the results to be obtained from use of the Electronic Delivery Services.
4. LIMITATION OF LIABILITY
4.1 Nothing in this Clause 4 shall limit or exclude either Service Operator or Exhibitor’s liability for: death or personal injury caused by its negligence; willful default, fraud or for fraudulent misrepresentation; or for any other liability for which it is not possible or lawful to limit or exclude by operation of law.
4.1.1 Subject always to clause 4.6, neither Service Operator nor its Agents will be liable to Exhibitor or to any third party for (i) libel, slander, or infringement of copyright from or in connection with the transmission of content hereunder (unless caused or contributed to by Service Operator or its Agents), , (ii) any unlawful or unauthorized use of the Infrastructure or Electronic Delivery Services by Exhibitor; (iii) any claim arising out of a breach in the privacy or security of content transmitted via the Electronic Delivery Services (unless caused or contributed to by Service Operator or its Agents); (iv) any claim arising from the unauthorized combination of the Infrastructure or Electronic Delivery Services with other equipment or services by a party other than those of Service Operator or its Agents; or (v) any claim arising directly or wholly from a breach of the Agreement by Exhibitor.
4.1.2 Exhibitor acknowledges that content is not created by Service Operator, and use of the content, might consist of, include and/or provide access to images, sound, messages, text, services or other content and material that may be unsuitable for minors and that may be objectionable to many adults. Exhibitor acknowledges that Service Operator is not responsible for any such content and agrees that access to same through use of the Electronic Delivery Services is at Exhibitor’s sole risk. The reliability, availability, legality, performance and other aspects of resources accessed through the internet are beyond Service Operator’s reasonable control and are not in any way warranted or supported by Service Operator or its Agents. Exhibitor acknowledges that safeguards relative to copyright, ownership, appropriateness, reliability, legality and integrity of content lies with the Exhibitor.
4.2 Subject to Clause 4.1 and 4.6 , neither party will be liable to the other in relation to the Agreement, in contract, tort (including negligence), statute or otherwise under this Agreement, for any: loss of sales, turnover, revenues or profits; loss of or damage to business; interruption to business; loss of or damage to reputation or goodwill; loss of contracts or customers; claims of customers; loss of, or loss of use of, any software, data, computer or other equipment; wasted management or other staff time; losses or liabilities under or in relation to any other contract; indirect, unforeseeable, special or consequential loss or damage. Subject to clause 4.6, Service Operator’s total liability for any and all loss or damage arising out of or in connection with the Electronic Delivery Services, in contract, tort (including negligence), statute or otherwise under this Agreement, shall be limited to the total sums paid by Exhibitor to Service Operator under the Agreement in the twelve months immediately preceding the date on which the cause of action arose.
4.3 Service Operator and its Agents shall not be liable to Exhibitor resulting or in any way related to the Infrastructure from: (i) viruses, worms, Trojan horses, or other undesirable data or software produced or initiated by third parties; or (ii) the attempt by unauthorized users (e.g., hackers) to obtain access to Exhibitor’s data, website, computers, or networks through the Infrastructure.
4.4 Exhibitor shall indemnify, defend and hold harmless the Service Operator and its Agents, and its and their respective agents, officers, directors and employees from and against, any and all costs, losses, liabilities, damages, lawsuits, judgments, claims, actions, penalties, fines and expenses (including without limitation, interest, penalties and reasonable attorney's fees) that arise out of, or are incurred in connection with: a material breach by Exhibitor of the Agreement Service Operator holds the benefit of each indemnity, promise and obligation in the Agreement that benefits it or any indemnified party on Service Operator’s own behalf and on trust for each of those persons.
4.5 Notwithstanding anything to the contrary set forth in the Agreement, neither party shall be liable to the other for failure to fulfill its obligations under the Agreement if such failure is caused by or arises out of an event of force majeure, including without limitation, acts of God, war, riot, pandemic or epidemic, Government enforced shut-down, natural disaster or any other reason beyond the reasonable control of the party whose performance is prevented during the period of such occurrence; provided, however, in no event shall Exhibitor’s failure to make payment when due be excused by a force majeure event.
4.6 Non-excludable Rights. Nothing in this Agreement is intended to exclude, restrict or modify any rights or guarantees that cannot be cannot be excluded, restricted or modified. (Non-excludable Rights). The limitations on and exclusions of a party’s liability contained in this Agreement apply only to the full extent permitted by law. Where Exhibitor is legally entitled to do so, its liability in respect of such Non-excludable Rights, is limited at its option to: (i) in the case of goods, any one or more of the following: (A) the replacement or repair of the goods or the supply of equivalent goods; or (B) the payment of the cost of replacing or repairing the goods or of acquiring equivalent goods; or (ii) in the case of services, any one or more of the following: (A) the supplying of the services again; or (B) the payment of the cost of having the services supplied again.
5. TERMINATION
5.1 Either party shall have the right on the delivery of notice to immediately terminate the Agreement, in whole or in part, in the event that the other party materially breaches any provision of the Agreement.
5.2 Either party may terminate the Agreement, in whole or in part, without cause on 90 days’ written notice.
5.3 On termination or expiry of the Agreement Exhibitor shall, at Service Operators direction either: (i) ensure that Service Operator is granted access to each PES in order for Service Operator to collect the Infrastructure; or (ii) safely deliver (at its sole cost) to Service Operator, all Infrastructure in its (and its PES’) possession. Where Exhibitor fails to deliver the Infrastructure to Service Operator within 30 days of termination or fails to grant Service Operator access, then in such instance Service Operator shall be entitled to charge Exhibitor the market rate for replacement of such Infrastructure.
6. CONFIDENTIALITY
6.1 Exhibitor hereby agrees not to disclose to third parties (without the prior written consent of Service Operator, which consent may be withheld for any reason or no reason in the sole and absolute discretion of Service Operator) the terms and conditions of the Agreement and/or any information provided to Exhibitor under the Agreement including such information related to the design and/or performance characteristics of the Infrastructure or Documentation.
7. SUBCONTRACTING
Service Operator may subcontract or delegate the performance of all or any of its rights and/or obligations under the Agreement to any Agent, but shall at all times remain liable to the Exhibitor in relation to all subcontracted or delegated rights and/or obligations. Exhibitor can only assign, subcontract or transfer its rights and obligations under this contract with Service Operator’s prior written consent.
8. INTELLECTUAL PROPERTY
8.1.1 The Exhibitor acknowledges and agrees that Service Operator, its licensor’s and/or Agents own all right title and interest in or to the Infrastructure and Documentation. Apart for a limited, revocable, non-exclusive, non-transferable license to use the Infrastructure or Documentation subject to the Agreement, Exhibitor obtains no right, title or interest in or to any such Intellectual Property Rights in or to the Infrastructure or Documentation.
8.1.2 Except as expressly permitted by this Agreement, and except to the extent that applicable laws (including the Copyright Act 1968 (Cth)) prevent Service Operator restraining Exhibitor from doing so, Exhibitor will not: (a) disassemble, copy, decompile, reverse engineer, recreate, modify, adapt, create derivative works from or otherwise attempt to discover the Infrastructure or Documentation; (b) delete, alter, cover, or distort any patent, copyright, trademark, or other proprietary rights notice placed by, on or in the Infrastructure or Documentation; and (c) sell, rent, lease, lend, sublicense, distribute, provide a service or otherwise transfer or provide access to all or any portion of the Infrastructure or Documentation to any third party.
8.1.3 Any such hardware that forms part of the Infrastructure is and remains the sole property of Service Operator or its Agents and Exhibitor holds such Infrastructure as mere bailee. Nothing in the Agreement shall or shall be taken to pass title in all or any part of the Infrastructure to an Exhibitor.
8.2 Legal title to content delivered through the Electronic Delivery Service resides with original rights holders. Nothing in the Agreement is intended to change or supersede these rights.
9. GENERAL
9.1 The Agreement is governed by, and shall be construed in accordance with, (i) the laws of New South Wales, Australia. Accordingly, the parties irrevocably agree that the non-exclusive jurisdiction of the Courts of New South Wales shall apply in relation to any claim, dispute or difference concerning the Agreement and any matter arising therefrom.
9.3 No alteration or variation to the Agreement shall be of any force or effect unless it is recorded in writing and signed by Service Operator and Exhibitor.
9.4 Exhibitor shall, at its sole expense, maintain throughout the term of the Agreement comprehensive general liability insurance, with minimum policy limits of AU$5,000,000 per occurrence. Upon request, Exhibitor shall furnish to Service Operator insurance certificates or other satisfactory evidence of such insurance.
9.6 The Exhibitor is and remains wholly responsible and primarily liable to Service Operator for proper performance by itself and each of its PES with the terms of the Agreement.