Allbridge Entertainment Cloud Terms and Conditions
The Subscription Agreement is subject to these General Cloud Terms and Conditions of Content Services (Conditions). All other terms and conditions, whether expressly stipulated by you or implied by trade custom, course of dealing or otherwise, are excluded.
1. SUPPLY OF CONTENT SERVICES-OUR OBLIGATIONS
a. We will throughout the Term supply the Content Services to you.
b. We will deliver the Content Services to you via a public internet connection which complies with our requirements or by such other means as agreed between you and us.
c. You will determine the retail price to be charged to your customers for the Content Services, from time to time (“Retail Prices”).
d. We will display the Retail Prices for Content Services on the television sets in the rooms that are capable of delivering Content Services to your customers (“Installed Rooms”).
e. You may change the Retail Prices at your discretion. However, you will notify us in writing of any changes to the Retail Price for any one of the Content Services in order for us to make such changes to the cloud-based subscription services (“Subscription”). Two (2) business days following such written notice you will verify that the relevant update has been made and inform us as soon as practicable if the updated Retail Price is not displayed on the television sets in the Installed Rooms.
f. You will be responsible for notifying us of the applicable tax rates for Content Services provided to your customers and you will be responsible for the collection and payment of all taxes arising from the usage of the Content Services by your customers.
g. Unless otherwise specified, each Retail Price will be presented in United States dollars (“Currency”).
h. We may from time to time inform you of additional Content Services available to be included with the existing Content Services, together with the Monthly Services Fee pricing if different than the Monthly Services Fees of the existing Content Services.
i. We will be entitled to alter the arrangements for delivery of the Content Services, provided that such alternative arrangements are, in our reasonable opinion, not materially disruptive or inconvenient to you or your customers and are at no extra cost to you.
j. We will supply the Content Services subject to directions and restrictions imposed from time to time by our suppliers or by applicable laws. You will comply with such restrictions provided that if such compliance will require you to incur significant additional costs, we will work together to alleviate or minimize such costs to the maximum extent possible.
k. We will be entitled to suspend provision of any Content Services without loss or penalty to us if you breach (i) any license required for the operation of the Services; (ii) any of our intellectual property rights; (iii) any directions or restrictions imposed from time to time by our suppliers or applicable laws; (iv) any of your obligations under this Agreement.
2. SUPPLY OF CONTENT SERVICES-YOUR OBLIGATIONS
a. You will provide a suitable area where the router necessary for the provision of the Content Services will be kept and will insure that no persons other than those authorized by us will interfere with any equipment or software necessary for the provision of the Content Services or gain access to the cabinet in which the equipment necessary for the provision of the Content Services is stored.
b. You will provide all assistance reasonably required by us to enable the performance of our duties under this Agreement.
c. You hereby grant to us, or will insure that we are granted, a non-exclusive, royalty- free license to transmit any Content Services over a dedicated VLAN in your network (CSDN: Content Services Distribution Network) installed by you for the purposes of providing the Content Services to you and your customers. You will be responsible for any re-transmission or re-delivery costs we incur, other than as a result of our negligence or mistake.
d. You will in a timely fashion and at your cost: i) provide and maintain any systems necessary to insure that the equipment necessary for the provision of the Content Services is compatible and interfaces with your systems; and ensure that any renewal or modification of your systems is compatible with the equipment necessary for the provision of the Content Services and its interfaces in order to allow for the provision of the Content Services.
e. You will not: i) transmit, or permit any third party to transmit, any other data on the CSDN network provided for the distribution of the Content Services; ii) do anything to prevent the CSDN network from delivering a dedicated 10 megabits per second of data to each Installed Room on a continuous, simultaneous, uninterrupted basis; or iii) or do anything which will impair the capacity of the public internet connection provided to us to deliver the Content Services to you.
f. You will provide throughout the Term all electrical power and suitable environmental conditions specified by us necessary to operate and/or support the equipment necessary for the provision of the Content Services.
g. You will provide a public internet connection in the Head-end Equipment Room to be used only by us for the provision of the Content Services, at no charge to us.
h. Your use of any Content Service will be restricted to transmission inside Installed Rooms to registered guests. You will not, and you will ensure that your employees, agents and subcontractors will not, reproduce, copy, distribute, interrupt or alter any Content Service supplied, except as expressly permitted by this Agreement.
i. You will obtain and maintain in force throughout the Term any building, planning, environmental, telecommunications and other licenses or consents required by applicable laws to enable the provision and use of the Content Services by each of your customers at your premises. You will also obtain and maintain in force throughout the Term any license required by applicable laws concerning copyright and related rights for the transmission or reproduction of music included in the Content Services as well as any other license that may be required by applicable laws in relation to the receipt and transmission of programs of radio or TV channels selected by you, as well as any license required for the reproduction of music contained therein. You will comply with all applicable laws, rules and regulations including without limitation those concerning privacy.
j. You are responsible for adequately informing your customers that some of the Content Services available for viewing in Installed Rooms may not be suitable for children and/or minors and that adult content and other Content Services may be blocked by the guest in the Installed Room using PIN technology.
k. You will allow us during the Term access to an Installed Room from time to time for the purposes of showing demonstrations of the Content Services to our third party customers.
l. You will during the Term be responsible for providing, at your cost, insurance in an amount sufficient to cover (a) the replacement cost of the equipment necessary for the provision of the Content Services and any component of them against all loss or damage from whatever cause, except for loss or damage caused by normal wear and tear or our (or our employees, subcontractors or agents) gross negligence or willful misconduct; (b) all risks of business interruption to insure the payment of aIl amounts due by you under this Agreement; and (c) property and liability insurance cover consistent with your industry standards. You will not do or permit any act or thing which may invalidate such insurance. If requested by us annually during the Term, you will provide copies of all such insurance policies, or a certificate of insurance from your insurance broker showing that you have complied with the requirements of this clause.
m. You will give us or our agents access to your premises and records to inspect and audit the use of the Content Services by you or your customers. You will also provide our Suppliers with audit rights as necessary to insure compliance with their requirements and protection of their proprietary rights. You will employ all security systems necessary to prevent theft, pirating and unauthorized exhibition, copying and disposition of VOD titles.
n. You will comply with all requirements, terms and conditions of our third party content licensing and video-on-demand (“VOD”) programming suppliers (“Suppliers”) which we provide to you in writing from time to time, including without limitation (a) you will not provide any other content or VOD services to Installed Rooms without our prior written consent, (b) you will immediately delete any content or titles from the Content Services upon receipt of notice from us, (c) you will indemnify, defend and hold us and our Suppliers harmless from any failure by you to comply with the requirements of this Agreement, applicable laws or arising from content supplied or made available by you, (d) upon notice and during normal business hours, you will allow us and our Suppliers to observe your Content Services security systems and to assure proper exhibition of Content Services, (e) you will not offer promotions, coupons, rebates, free buys, two-for-one type specials for Content Services without our prior written consent, (f) you will not revise, alter, compress, technologically manipulate, add to or edit any of the Content Services or advertising content included in the Content Services, (g) you grant our Suppliers such audit rights as reasonably required to insure protection of and appropriate use of the Content Services, (h) you agree that in the event our rights are terminated with our Suppliers for any reason, we may modify or substitute other Content Services or terminate this Agreement, (i) you release our Suppliers from any and all claims by you for any damage or liabilities, (j) we warrant that we have the rights necessary to provide the Content Services in you will offer to all Installed Rooms all VOD titles and packages we provide to you, and (k) you will not make any studio title available in adult programming categories.
o. In the event any studio imposes minimum guarantees on any title, we will notify you of any such requirements and you will be responsible for payments with regard to such requirements.
p. You will promote the availability of VOD titles by customary marketing procedures, will not insert any other commercial messages or advertising in such procedures, and will not use any part of a title separate from such procedures.
q. You will not acquire any proprietary rights in the logos, marks, names and titles of ours or of any third party.
3. CONTENT PAYMENT PROVISIONS
a. Within ten (10) days after the end of each calendar month, we will deliver to you a statement showing the total revenue payable to you from your customers for the use of the Content Services (the “System Revenue”) relating to the immediately preceding month and showing all information necessary to enable you to verify the Monthly Services Fee for that calendar month and a written invoice showing the Monthly Services Fee and any additional amounts payable for that calendar month.
b. Our charges to you for the supply of the Content Services will be calculated on System Revenue, based upon the higher of the Wholesale Price and the Retail Price. Wholesale Price is the minimum charge net of taxes attributable to each category of Content Service that we will confirm to you upon the signing of the Form by you. Wholesale Prices are not recommended prices and you are free to determine your own prices to your customers for the Content Services (“Retail Prices”).
c. If we change the Wholesale Price for any Content Service, we will give you not less than ten (10) business days’ notice of such change. System Revenue will be calculated by reference to such revised Wholesale Price upon expiration of such notice period.
d. You will continue to make all payments accrued and due under this Agreement throughout the duration of any suspension of Content Services. All amounts to be paid to us are exclusive of all sales, use and any other tax and all licenses, permits and approvals, all of which will also be paid by you.
e. The Monthly Services Fees and our charges to you are based on a maximum VOD view rate of 1.5 orders per room per month. In the event such maximum VOD view rate is exceeded, MCOM reserves the right to assess additional view charges. In addition, if you exceed general industry averages for simultaneous views, you may be required to upgrade your internet access capabilities and comply with additional MCOM requirements.
4. INTELLECTUAL PROPERTY
a. You will not use or reproduce or permit others to use or reproduce the Content Services, except as expressly permitted by this Agreement. We and our Suppliers retain all rights in programming, software and intellectual property provided to you, and no rights or licenses are granted therein except as expressly provided in this Agreement.
b. In the event that we become aware that your or any customer’s use of the Content Services in accordance with this Agreement infringes any third party intellectual property rights, we will use our reasonable commercial efforts to obtain the right to use the infringing material, replace the infringing material with non-infringing material or remove the infringing material from the Content Services.
c. You will notify us as soon as you become aware of any actual, threatened or suspected infringement of any of our or any third party’s intellectual property rights. At our request and cost, you will provide any assistance and information which we reasonably require to take action against such infringement.
d. You will notify as soon as you become aware of any allegation or complaint made by any other person that the use by you or your customers of the Content Services infringes any other person’s intellectual property rights. You will not make any admissions in respect of these matters other than to us and will, furnish us with all relevant information in your possession.
5. CONTENT WARRANTIES AND IDEMNIFICATIONS
a. We warrant that we have the rights necessary to provide the Content Services in accordance with this Agreement.
b. We warrant that the Content Services will be provided with reasonable care and skill and by appropriately qualified and skilled personnel.
c. We agree to defend at our expense any claim or action brought against you by a third party to the extent that such action is based on a claim that the use of Content Services directly infringes a third party’s intellectual property right (excluding music performance and mechanical reproduction rights). We will indemnify you against any costs, damages and fees incurred by you attributable to such claim. Our indemnification obligations are conditional on you promptly notifying us in writing of such claim. You will permit us to defend, compromise or settle the claim, and you will provide all available information, assistance and authority to enable us to do so, provided that we reimburse you for your reasonable costs. You will have no authority to settle any claim on behalf of us.
d. We further warrant that to the best of our knowledge nothing in the Content Services will be defamatory or will infringe the intellectual property rights of privacy of any third party.
e. In no event will we be liable for any indirect, punitive, incidental or consequential damages or loss, including loss of profit, loss of revenue, loss of goodwill or loss of anticipated savings, arising from or relating to this Agreement or the Content Services. Our maximum liability will in no event exceed the amount of the annual Content Services charges.
f. You agree to indemnify us and any of our employees, Suppliers, subcontractors or agents against any loss, claim or damages suffered or incurred by us or them, from time to time, arising out of or in connection with: (a) any claim made by a third party resulting from acts by you otherwise than in accordance with this Agreement; (b) any failure by you to obtain and maintain throughout the Term licenses or consents required in accordance with this Agreement; (c) any unauthorized use of the Content Services, including any piracy by you or your customers and (d) any claim made by a customer, your guest or a third party arising out of or relating to (i) the fact that the Internet and links to the Internet are not secure media for the transmission of data, information or material or (ii) any data, information or material accessed or downloaded by a customer, your guest or a third party breaches any applicable law or regulation.
g. We make no implied warranties, and except as expressly set forth in this Agreement, we make no other express warranties. We cannot control the performance of any products or services which are provided or controlled by third parties, including without limitation errors or interruptions arising therefrom, and we make no representations or warranties with regard thereto.
6. CONTENT TERMINATION.
The application of these Conditions will apply for the entire Term. We may terminate this Agreement if our rights to VOD titles are terminated by our Suppliers, or if you institute bankruptcy, reorganization or similar proceedings. Upon any termination, you will pay us all amounts due under this Agreement as of the date of termination.