Version 2.4 released on 14 May 2015
By clicking “I Agree” and typing your name below you acknowledge and agree that you have read these terms and conditions carefully and that you are aware that you are entering an agreement (“Agreement”) with Movie Manager (the “Company”) under the terms and conditions contained herein. If you do not agree to the terms set forth herein, click back to return to the homepage.
- The services (“Services”) provided to you (the “Exhibitor”) by the Company under this Agreement are subject to the terms and conditions set forth herein. These Services include website hosting, domain names, content provision, website design, website development, email marketing, email hosting, mobile app development and any other services provided by The Company.
- This Agreement will become effective as of the date hereof (the “Effective Date”) and shall remain effective for one month from the Effective Date, and shall renew on a month to month basis unless terminated in writing by Exhibitor thirty (30) days in advance of the end of the month (the “Term”).
- This Agreement constitutes a valid and binding obligation of the Exhibitor, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws affecting creditors’ rights generally.
- Exhibitor agrees that by engaging the Services, Company will bill Exhibitor monthly and invoices shall be payable upon receipt. Company reserves the right to change the rates at any time.
- The Exhibitor agrees that due to the nature of the Agreement, the payments to be made by Exhibitor for the Term of this Agreement form an integral part of Company’s anticipated profits; that in the event of Exhibitor’s default it would be difficult if not impossible to determine Company’s actual damages. Therefore, in the event Exhibitor defaults in the payment of any charges to be paid to Company, Exhibitor shall be liable for the full amount due for the Term of the Agreement in addition to the liquidated damages provided for herein. The Exhibitor acknowledges that the liquidated damages set forth above are reasonable in amount and that any dispute or potential dispute over actual damages would be disruptive to the business of the parties so that it is in both parties’ best interest to have determined the amount of such reasonable liquidated damages. Exhibitor waives trial by jury in any action between it and the Company. In any action commenced by Company against Exhibitor, Exhibitor shall not be permitted to interpose any counterclaim. All actions or proceedings against Company must be based on the provisions of this Agreement. Any other action that Exhibitor may have or bring against Company in respect to other services rendered in connection with this Agreement shall be deemed to have merged in and be restricted to the terms and conditions of this Agreement. Should Company prevail in any litigation between the parties Exhibitor shall pay Company’s legal fees. Further, in any action to collect fees associated with the processing of Services the Exhibitor shall pay all costs associated therewith, including but not limited to legal and court fees.
- Notwithstanding the foregoing, this Agreement may be terminated by Company immediately if Exhibitor: (i) becomes insolvent; (ii) files a petition in bankruptcy; (iii) makes an assignment for the benefit of its creditors; or (iv) breaches any of its obligations under this Agreement in any material respect, which breach is not remedied within thirty (30) days following written notice to such party.
- Exhibitor, at its own expense, will indemnify, defend and hold harmless Company, its affiliates and their employees, representatives, agents and affiliates, against any claim, suit, action, or other proceeding brought against Company or any such party to the extent based on or arising from (a) a claim that the show time data or any Exhibitor brand feature is inaccurate or infringes in any manner any intellectual property right of any third party or contains any material or information that is obscene or defamatory, or that violates any person’s right of privacy, or (b) a claim in connection with a directory ad or (c) Exhibitor’s failure to comply with all applicable laws with respect to publication of any show time data and directory ads; provided, however, that in any such case: (i) Company provides Exhibitor with prompt notice of any such claim; (ii) Company permits Exhibitor to assume and control the defense of such action, with counsel chosen by Exhibitor; and (iii) Exhibitor does not enter into any settlement or compromise of any such claim without Company’ prior written consent, which shall not be unreasonably withheld. If Exhibitor does not assume and control the defense of such action, then, to the extent arising from such claim, Exhibitor will pay reasonable costs, damages, and expenses, including, but not limited to, reasonable attorneys’ fees and costs awarded against or otherwise incurred by Company or any indemnified party hereunder in connection with or arising from any such claim, suit, action or proceeding. It is understood and agreed that Company does not intend and will not be required to edit or review for accuracy or appropriateness any show time data.
- Except as provided in Section 7 with respect to third-party claims, under no circumstances shall either party or their respective affiliates have liability or responsibility to the other under this Agreement for any loss of business, loss of anticipated profits or any incidental, consequential, special or exemplary damages whatsoever and however caused, including for any interruption or loss of service or use of the show time data. Company’s liability for any breach of this agreement shall be limited to the payment(s) received hereunder for the month(s) during which such breach occurred.
- Company disclaims all warranties with regard to service provided under this Agreement including, without limitations, all implied warranties of merchantability and fitness for a particular purpose.
- All notices, requests, demands or other communications given under or in accordance herewith shall be in writing and delivered personally, by electronic facsimile or by mail, to: Movie Manager Limited, PO Box 40043, Glenfield, Aukland 0747, New Zealand, email: [email protected] Communications delivered personally shall be deemed effective upon receipt. Those delivered by mail shall be deemed delivered three (3) days after deposit in the mail, certified or registered, and with postage prepaid addressed to the principal place of business of both parties as shown below. Addresses and facsimile numbers for such communications may be changed at any time and from time to time by notice as provided herein.
- This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements and understandings between the parties relating to its subject matter. Any amendments or modification of any provision of this Agreement must be in writing, dated, and signed by both parties.
- This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. The Company may assign its rights under this Agreement without the prior consent of Exhibitor. The Exhibitor may not assign this Agreement, in whole or in part, without the Company’s written consent. Any attempt to assign this Agreement other than in accordance with this provision shall be null and void.
- This Agreement shall be interpreted, construed and enforced in all respects in accordance with the laws of New Zealand.
- If any provision of this Agreement shall be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby.
- No term or condition of this Agreement shall be deemed to have been waived, nor shall there be an estoppel against the enforcement of any provision of this Agreement except by written instruments signed by the party charged with the waiver or estoppel; no written waiver shall be deemed a continuing waiver unless specifically stated therein, and the written waiver shall operate only as to the specific term or condition waived, and not for the future or as to any other act than that specifically waived. No failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute waiver of any such breach or any other covenant, duty, agreement or condition.
- Nothing in this Agreement, express or implied, is intended or shall be construed to confer on any person or entity other than the parties any right, remedy or claim, legal or equitable, and this Agreement and all of its provisions are intended to be, and shall be, solely and exclusively for the benefit of the parties. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives and permitted assigns.
- Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, earthquakes, acts of God, war, governmental action, or any other cause which is beyond the reasonable control of such party (each a “Force Majeure Event”). Each party will use its reasonable best efforts to notify the other party of the occurrence of a Force Majeure Event within three (3) business days of such occurrence.