DELUXE DIGITAL CINEMA - TERMS AND CONDITIONS - GERMANY

1.      General Application. Any Services ordered by Customer and performed by Deluxe Media GmbH 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 deal memos, exhibits and schedules, which will form an integral part of the individual purchase contracts entered into between Customer and Deluxe, (the “Contract”). The Standard Terms shall also apply to all future transactions between Deluxe and Customer. Unless otherwise expressly accepted by Deluxe in writing, any terms and conditions of Customer that are inconsistent with these Standard Terms will be excluded and will not become part of the Contract. These Standard Terms will apply irrespective of any other terms that Customer may include in its purchase order.

2.      Orders and Contract Conclusion. Deluxe will not be under any obligation to perform any Services, unless Deluxe receives, on a title by title basis, a binding order from Customer for the performance of the Services and Deluxe decides in its discretion to accept such order either by sending to Customer a written confirmation of order within ten (10) business days from receipt of Customer's order or by performing the Service ordered within this time period. Until such time as the order has been accepted by Deluxe, Customer’s order will not be binding upon Deluxe. Deluxe may, without Customer's consent (but without reducing its obligations to Customer), (i) satisfy any obligation under the concluded Contract by causing one or more of its Affiliates to perform such obligation, or (ii) sub-contract to a third party all or any of its rights and obligations to provide the Services.

3.      Payment Terms and Conditions. After an ordered Service has been performed by Deluxe, Deluxe issues an invoice for the relevant Service. Customer will pay Deluxe the amount invoiced within thirty (30) days following the 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, such as actual, direct or out-of-pocket costs paid to third parties by Deluxe for materials and/or services provided as part of the Services are incurred, Customer agrees to pay Deluxe, upon demand, the additional expense thereof. All payments will be made free of any deduction.

In the event Customer fails to pay Deluxe the invoiced amount in due time despite unsuccessful expiry of a deadline, Deluxe shall be entitled to suspend the performance of its obligations until Customer has paid the relevant amount due and/or to terminate the Contract. All overdue payments shall be furthermore subject to a late payment interest at the rate of nine percentage point (9%) above the base interest per year from the due date until the date when the relevant outstanding payment has been paid in full. Deluxe’s further statutory rights shall remain unaffected. Customer further agrees to pay all costs and expenses, including attorneys’ fees and/or collection costs incurred by Deluxe, in connection with the enforcement of Deluxe’s rights hereunder.  

4.      Prices and Price Increase. Unless the parties have agreed upon a certain price, the price shall be determined by the price list of Deluxe as applicable at the date of the conclusion of the Contract. All prices exclude any additional services (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 the price and is to be paid by Customer. Deluxe is free to adjust its price list at any time.

If, after conclusion of a Contract, unforeseeable cost increases of 5 % or more have occurred at Deluxe with regard to the subject matter of the Contract compared to the time of conclusion of the Contract for which Deluxe is not responsible, Deluxe shall be entitled, at its reasonable discretion, to pass on the higher costs by increasing the agreed price accordingly on a pro rata basis. Manufacturing, wage, material, storage, energy and freight costs as well as insurance premiums and public charges may be taken into account in the price increase. Increases in one type of cost shall only be taken into account for a cost increase to the extent that they are not offset by any declining costs in other areas. Deluxe shall provide evidence of the price increase to Customer upon request. In the event of a price increase of more than 10 %, Customer shall be entitled to terminate the Contract immediately upon receipt of the declaration of the price increase.

5.      Deluxe Material and Customer Deliverables.  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 Customer Deliverables being delivered in due time and 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 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 Customer’s sole risk and Deluxe shall not be liable for any loss or damage to the Customer Deliverables of any kind whatsoever, unless the loss or damage has been caused intentionally or grossly negligently. 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.      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, 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 parent company, affiliates and subsidiaries) and its officers, directors, employees and agents of each of the foregoing, harmless from any and all third party claims, demands, actions, suits, proceedings, damages, losses, fees, expenses and liabilities of any nature whatsoever (including reasonable court costs and attorneys’ fees) arising out of or in connection with: (i) the breach or alleged breach of any representation or warranty made by Customer under the Contract, (ii) the publication, processing, use, distribution and/or exhibition of Customer Deliverables, (iii) libel, slander, defamation, invasion of privacy or infringement of patent, copyright, trademark or other proprietary right, and/or (iv) Deluxe carrying out or following the instructions of Customer.  

7.      Defective Services.  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 remedy will be, at Deluxe’s cost, for Deluxe to correct any fault or defect in the relevant part of the Services or to deliver 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 Customer’s rights or obligations 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 defaults set out in the foregoing sentence will be Customer’s responsibility.    

8.      Exclusions.  For the avoidance of doubt,  Deluxe is not responsible for (i) the digital equipment at any theatrical complex is functioning prior to or after delivery (unless Deluxe is responsible for the lack of functioning); or (ii) that any particular content booked or otherwise provided for exhibition at such complex will actually be exhibited after delivery.

9.      Limitation of Liability. Deluxe shall only be liable (i) for the breach of a material contractual obligation, i.e. an obligation the fulfilment of which is a prerequisite for the proper performance of the Contract and on the fulfilment of which Customer relies and may rely; and (ii) limited to the damage typical for this type of Contract and foreseeable at the time when this Contract was concluded. This limitation of liability shall not apply to liability (i) for fraudulent concealment of a defect, (ii) for an assumed guarantee, (iii) under the German Product Liability Act and under any further mandatory provisions, (iv) for culpably caused injury of life, limb and health; or (v) for any breach of duty caused intentionally or grossly negligently by Deluxe, its legal representatives or vicarious agents.

10.    Confidentiality. Any intellectual property rights and copyrights, know-how and technical, commercial and other information and documentation recorded in writing, orally or electronically, provided and/or disclosed by one party to the respective other party are confidential and/or proprietary (“Confidential Information”). Confidential Information shall include but shall not be limited to Contracts, the Deluxe Material, the Customer Deliverables and business secrets (Geschäftsgeheimnisse) in the meaning of section 2 of the German Law on Trade Secrets (GeschGehG). The Deluxe Material and the Customer Deliverables will be used only for the purpose of performing the Services. Either party will use the same means to ensure confidentiality of Confidential Information 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 Confidential Information during the business relationship.  No such Confidential 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 Confidential 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 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 Confidential Information or was acquired from a third party that was not operating under a continuing obligation of confidentiality to the disclosing party. 

11.    Relationship of the 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.

12.    Set-Off Rights. Customer shall only be entitled to a set-off if its counterclaim is uncontested, ready for decision or has been finally adjudicated.

13.    Applicable Law.  Any Contract and any non-contractual obligations arising out of or in connection with it will be governed by the laws of the Federal Republic of Germany (to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and the conflict of law principles) and the parties consent and agree that the courts of Hamburg, Germany will have exclusive jurisdiction with respect to any action that any party desires to commence arising out of or in connection with any Contract. However, Deluxe is also entitled to file action at the place of business of Customer.

14.    Force Majeure. Deluxe will not be liable to Customer for any loss or damage of any kind due to Deluxe’s performance being prevented, hindered, or delayed by reason of circumstances or events beyond the reasonable control of Deluxe, 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, pandemics, inability to obtain the necessary labor, materials or facilities, delay from a subcontractor caused by an event of force majeure. In the event of a force majeure event, any applicable delivery dates will be deemed extended for the period necessary to overcome the effects of the force majeure event but not less than the duration of the force majeure event.

15.    Amendments; Waivers and Cumulative Remedies. Any Contract or these Standard Terms 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 a 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 a Contract nor will it be deemed a waiver of the application 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 rights, 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”). 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. 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, which shall mean that such skills or knowledge are not uniquely applicable to Customer.

17.    Severability. Whenever possible, each provision of a Contract and these Standard Terms will be interpreted in such a way as to be effective and valid under German law. If any provision of a Contract or these Standard Terms is finally held by a competent court 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 or these Standard Terms. 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 thereof.

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: Deluxe Media GmbH, Alsterdorferstraße 2a, 22299 Hamburg, Germany, 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 by letter. Either party will promptly inform the other party of any change in its address.

19.    Assignability.  A Contract shall not be assigned by either party without the prior written consent of the other party. 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 rescind from the respective Contract on the giving of notice to Customer.

20.    Publicity. Where the Services form part of any project or theatrical release of Customer’s picture, 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 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).

“Agreement” means these Additional Terms Applicable to Electronic Delivery Services.

“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.      General Application.

The Agreement applies in addition to the Standard Terms for the use of the Electronic Delivery Services, provided by the Service Operator. In the event of any conflict between the Standard Terms and this Agreement, this Agreement shall prevail. The Exhibitor acknowledges and agrees to comply with all additional terms as specified in writing by the Service Operator.

3.      USE OF THE ELECTRONIC DELIVERY SERVICE

3.1    Content Delivery

3.1.1 The content will, where appropriate, be delivered by Service Operator in DCP compliant format or such other format as agreed between the parties.

3.1.2 The content will be made available via a Pull method.

3.1.3 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, provided that the Exhibitor is given prior notice and an opportunity to object to the deletion.

3.1.4 Prior to the purging of the content, the Exhibitor shall be required to ingest the content into its respective TMS.

3.1.5 Service Operator shall be entitled to purge content as soon as the content is ingested.

3.1.6 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.

3.1.7 Where the Exhibitor intentionally or negligently 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. The Exhibitor may prove that no Redelivery costs or shipping costs have occurred. The burden of proof lies with the Exhibitor to demonstrate that the non-compliance with its obligations under this Agreement did not result in any additional costs

3.1.8 Storage space management within the FilmVault Server will be carried out by the Service Operator.

3.1.9 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.

3.1.10        The Electronic Delivery Services are provided on a non-exclusive basis.

3.2    Service Desk

3.2.1 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.

3.2.2 The Exhibitor shall without undue delay 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.

3.3    Security

3.3.1 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. The Service Operator does not warrant that its systems are free from viruses and/or other harmful computer codes that may contain contaminating or destructive properties.

3.3.2 The Exhibitor shall be responsible for any intentionally or  negligently damage to the Infrastructure (including any cabinets enclosing it) except to the extent caused by intent or gross negligence 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 intention or 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, excluding normal obsolescence

3.3.3 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.

3.3.4 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. Authorized equipment includes any devices or software explicitly listed and approved by the Service Operator in writing. 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.

3.3.5 The Service Operator reserves the right to suspend access to the Electronic Delivery Service, if the Exhibitor is in breach of the Agreement. The Service Operator will provide the Exhibitor with a notice of suspension, including the reasons for the suspension and the steps required to remedy the breach. The Exhibitor may prove that no breach has occurred. The burden of proof lies with the Exhibitor to demonstrate that they have complied with their obligations under this Agreement. Access will be restored promptly once the breach is resolved.

3.3.6 Risk in the Infrastructure passes to an Exhibitor on delivery of the Infrastructure to Exhibitor at its allocated PES. The Infrastructure is considered delivered when it has been handed over to the Exhibitor at the specified location, and the Exhibitor has had a reasonable opportunity to inspect and accept the Infrastructure. For software, delivery is considered complete when the software has been installed and is operational at the Exhibitor's allocated PES. 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.

4.      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.

5.      LIABILITY

5.1    Service Operator shall only be liable (i) for the breach of a material contractual obligation, i.e. an obligation the fulfilment of which is a prerequisite for the proper performance of the Agreement and on the fulfilment of which Exhibitor relies and may rely; and (ii) limited to the damage typical for this type of Agreement and foreseeable at the time when this Agreement  was concluded. This limitation of liability shall not apply to liability (i) for fraudulent concealment of a defect, (ii) for an assumed guarantee, (iii) under the German Product Liability Act and under any further mandatory provisions, (iv) for culpably caused injury of life, limb and health; or (v) for any breach of duty caused intentionally or grossly negligently by Deluxe, its legal representatives or vicarious agents.

5.2    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.

5.3    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.

5.4    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, 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: (i) a breach by Exhibitor of the Agreement; or (ii) Clause 4.1.1.

5.5    Notwithstanding anything to the contrary set forth in the Agreement, in the absence of proof of the contrary, 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.

6.      TERMINATION

6.1    Each party shall have the right  to terminate the Agreement, in whole or in part, for good cause with immediate effect (e.g., in the event of a materially breach of any provision of the Agreement.

6.2    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 the rental costs of such Infrastructure until the Exhibitor returns the Infrastructure to the Service Operator.

7.      CONFIDENTIALITY

7.1    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.

8.      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 Agreement with Service Operator’s prior written consent. Service Operator will remain Customer's sole point of contact with regard to the provided Services.

9.      INTELLECTUAL PROPERTY

9.1    The Exhibitor acknowledges and agrees that Service Operator, its licensor’s and/or Agents own all rights in title and interest in or to the Infrastructure and Documentation, and that these rights will in any case remain their property Apart for a limited, revocable, non-exclusive, non-transferable and royalty-free, worldwide 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.

9.2    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.

9.3    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 Exhibitor.

 9.4   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.

10.    GENERAL

10.1  The Agreement is governed by, and shall be construed in accordance  with the laws of the Federal Republic of Germany (to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and ) and the conflict of law principles). Accordingly, the parties agree that the exclusive jurisdiction of the courts of Hamburg, Germany shall apply in relation to any claim, dispute or difference concerning the Agreement and any matter arising therefrom.

10.2  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.

10.3  Exhibitor shall, at its sole expense, maintain throughout the term of the Agreement comprehensive general liability insurance, with minimum policy limits of EUR 5,000,000 per occurrence. Upon request, Exhibitor shall furnish to Service Operator insurance certificates or other satisfactory evidence of such insurance.