Moviebill Advertising Agreement
Standard Terms and Conditions
This addendum of standard terms and conditions (the “Standard Terms”) is hereby incorporated into the Moviebill Advertising Insertion Order and Agreement (the “IO”) between the Parties as of even date herewith (collectively, the IO and the Standard Terms constitute the “Agreement”). Defined terms in the Standard Terms shall be deemed to have the same meaning as set forth in the IO or as otherwise specified hereinbelow. Except as otherwise expressly stated, in the event of any conflict between a provision of the Standard Terms and any other provision of the Agreement, such other provision of the Agreement shall control solely to the extent necessary to resolve such conflict. The descriptive headings of paragraphs of the Agreement are for convenience only and do not constitute a part of the Agreement. The Agreement between the Parties will include, and all Advertising exhibited by Moviebill for Advertiser will be subject to, the following terms and conditions:
1. Moviebill Services. Subject to the terms of this Agreement, Moviebill will arrange for the Advertising to be exhibited as specified in each Order entered into under this Agreement. Notwithstanding the foregoing, the exhibition of the Advertising, and performance by Moviebill of its obligations under this Agreement, will be excused to the extent that (and may be delayed if) Advertiser fails to perform its obligations under this Agreement in a timely manner or otherwise fails to comply with the terms of this Agreement.
2. In-Theatre Advertising. All In-Theatre Advertising or other content will be subject to any audience or advertising restrictions or limitations imposed on Moviebill by motion picture studios, producers, distributors, exhibitors or other third parties. In addition, in its sole and absolute discretion, Moviebill may elect to not exhibit or present any In-Theatre Advertising or other content before any motion picture or group of motion pictures with particular movie ratings. The theatre locations for In-Theatre Advertising that are set forth on the Order may be substituted by Moviebill in its reasonable discretion upon notice to Advertiser.
3. Internet and Online Advertising. The American Association of Advertising Agencies (AAAA)/Interactive Advertising Bureau (IAB) Standard Terms and Conditions for Internet Advertising for Media Buys One Year or Less, Version 3.0 (the “IAB Terms”), a copy of which is available at https://www.iab.com/wp-content/uploads/2015/06/IAB_4As-tsandcs-FINAL.pdf, are incorporated into this Agreement for all Internet and online Advertising purchased under this Agreement. “California” and “Los Angeles County, California” are inserted into the respective placeholders in Section XIV(d) of the IAB Terms. If there is no Agency for this Insertion Order, “Advertiser” replaces “Agency” in all instances in the IAB Terms, and Section III(c) of the IAB Terms shall be deleted. In the event of any conflict between the terms of this Agreement and the IAB Terms, the terms of this Agreement will control.
4. Fees and Payment. Advertiser must pay all fees as specified on each Order within thirty (30) days of invoice. If Advertiser fails to pay Moviebill any undisputed amount when due, Advertiser must pay interest on the unpaid amount from the date such unpaid amount was due until it is paid, at the rate of twelve percent (12%) per annum. Payments may be made by cash, check or EFT.
5. Advertiser Obligations. In addition to the other obligations of Advertiser set forth in this Agreement, Advertiser will, at its expense, and at its risk of loss, provide Moviebill with the Advertising material as required by Moviebill at least seven (7) business days in advance, but not more than twenty (20) business days in advance of the date scheduled by Moviebill for transfer of the materials for use or production as Advertising (dependent upon Advertising vehicle selected, and/or if and as otherwise agreed to by the Parties).
- Advertiser Content. All advertising, information, data, text, photographs, video, images, audio, call to action, and other content (“Content”) provided by Advertiser for use in the Advertising (“Advertiser Content”) is subject to prior approval by Moviebill. All Advertiser Content must be in compliance with the Media Specifications, Creative Deadlines and Advertising Guidelines to be provided by Moviebill (and hereby incorporated into this Agreement) Moviebill reserves the right to make technical changes to Advertiser Content to ensure conformance with technical specifications. Advertiser Content shall not include the exhibition or display of any trademark, service mark, logo or other branding of a third party without prior written approval of Moviebill, and shall comply with all applicable laws, rules, and regulations. Moviebill may reject any Advertiser Content or Advertising for any reason. Moviebill has no obligation to review any Advertiser Content or Advertising for compliance with this Agreement or any applicable law, rule, or regulation. Advertiser will remain solely responsible for any liability arising from the Advertiser Content or Advertising, including but not limited to liability arising from any laws relating to obscenity, defamation, trade libel, the right of publicity or likeness, the right of or to privacy, any laws relating to intellectual property, and any laws relating to advertising. If any Advertiser Content or Advertising is rejected by Moviebill, Advertiser will promptly replace the Advertiser Content or Advertising with Advertiser Content or Advertising acceptable to Moviebill so as not to delay the schedule for the display of the Advertising. Advertiser will maintain back-up copies of all Advertiser Content and Advertising, and Moviebill will not be liable for loss or damage to any Advertiser Content or Advertising. Advertiser agrees to and hereby does grant to Moviebill all rights, authorizations, consents, licenses, and clearances (collectively, “Licenses”) necessary and/or appropriate to exhibit, distribute, broadcast, publicly present and/or publicly perform the Advertising and as necessary and/or appropriate for the performance by Moviebill of its other obligations under this Agreement, including, without limitation, all Licenses necessary for the public performance of musical compositions. Advertiser also grants Moviebill a limited License to use and display portions of the Advertising in connection with the promotion of Moviebill’s business.
- Moviebill Content. All Content, including, without limitation, any derivatives, modifications or new versions of any Advertiser Content prepared or delivered by Moviebill under this Agreement (“Moviebill Content”), and all intellectual property rights therein and applicable thereto, are and will remain the sole and exclusive property of Moviebill. Advertiser agrees that Moviebill will retain sole and exclusive title to all Moviebill Content and agrees to and hereby makes all assignments necessary to provide Moviebill such sole and exclusive title. Advertiser receives no rights or licenses in or to any Moviebill Content (or in or to any Moviebill trademarks) under this Agreement, and Moviebill expressly reserves all such rights.
7. Promotional Materials. All materials distributed or to be distributed by or on behalf of Advertiser as part of or in connection with the Advertising, including, without limitation, toys, food, objects or other materials (“Promotional Materials”) will be delivered to locations (at the sole expense of Advertiser and with Advertiser bearing all risk of loss) in accordance with the procedures, specifications and deadlines established by Moviebill. All Promotional Materials, including, without limitation, lobby displays, are subject to Moviebill and theatre approval, and their final placement is determined by theatre management. At its discretion, Moviebill may delay the distribution of Promotional Materials. Certain Promotional Material, as determined by Moviebill, will contain the following statement: “THIS PROMOTION IS NOT ENDORSED BY MOVIEBILL, THIS THEATRE OPERATOR OR ANY OF THEIR AFFILIATES. BY FILLING OUT THIS FORM YOU WILL OR CAN BE SOLICITED”.
8. Representations and Warranties. Advertiser represents and warrants to Moviebill that: (a) Advertiser has the legal right to enter into this Agreement and to perform its obligations under the Agreement; (b) Advertiser has all rights necessary to enable Moviebill to exercise the rights granted under this Agreement; (c) the exhibition and other use of the Advertiser Content and Advertising, the distribution and other use of the Promotional Materials, and the other activities of Advertiser and obligations of Moviebill under this Agreement will not violate, applicable local, state and federal laws, rules, and regulations, including, without limitation, laws and regulations governing privacy and email/spam, or any self-regulatory rules or guidelines that are applicable to, or to which the Advertiser, the agency or the Advertiser Content, Advertising or Promotional Materials may be subject, and/or any duty toward or rights of any third party; (d) all information and data provided to Moviebill in connection with this Agreement is correct and current; (e) Advertiser will not collect any personally identifiable information (including, without limitation, any e-mail addresses, full names, mailing addresses and phone number of theatre patrons), or transfer any such information to any third party, without the prior written approval of Moviebill in each instance; (f) the Advertiser Content and Advertising do not contain any viruses, Trojan horses, worms, time bombs, or any other similar software, data, or programs that may damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, information, or property of another; (g) the Advertiser Content, Advertising and Promotional Materials are not, in whole or in part, pornographic, obscene, abusive, threatening, indecent, vulgar, defamatory, harassing, do not otherwise constitute trade libel, a violation of the right of publicity and/or an invasion of privacy, do not violate any other laws relating to advertising, and/or are not otherwise objectionable or unlawful; (h) the Advertiser Content, Advertising, and Promotional Materials are not false and/or misleading; (i) the Advertiser Content, Advertising and Promotional Materials do not infringe, violate, and/or misappropriate any third party copyright, trademark, right of or to privacy, publicity or likeness, or other intellectual property or proprietary right; and (j) the Advertiser Content, Advertising and Promotional Materials are free from defects, materials in workmanship. Advertiser further covenants that if Advertiser at any time fails to have all rights necessary to enable Moviebill to perform its obligations and exercise its rights under this Agreement, Advertiser will obtain all such rights, and will be solely responsible for any liability of either Party arising out of any claim, allegation, suit or proceeding alleging that either Party does not have such rights.
9. Disclaimer and Limitation of Liability. MOVIEBILL PROVIDES ALL MOVIEBILL CONTENT AND ALL SERVICES PERFORMED BY MOVIEBILL UNDER THIS AGREEMENT "AS-IS" AND "AS-AVAILABLE." MOVIEBILL MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE MOVIEBILL CONTENT OR SUCH SERVICES, AND ADVERTISER HAS NOT RELIED ON ANY REPRESENTATIONS OR WARRANTIES OF MOVIEBILL REGARDING THE MOVIEBILL CONTENT OR SUCH SERVICES. MOVIEBILL EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE MOVIEBILL CONTENT AND SUCH SERVICES, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. MOVIEBILL’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES ACTUALLY PAID TO MOVIEBILL UNDER THIS AGREEMENT DURING THE 3 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL MOVIEBILL BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES RELATING TO LOST DATA, LOST REVENUE OR PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF MOVIEBILL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY UNEXCUSED FAILURE BY MOVIEBILL TO PERFORM ANY OBLIGATION UNDER THIS AGREEMENT WILL AFFECT ONLY THE OBLIGATION WITH RESPECT TO WHICH THE FAILURE OCCURRED AND WILL IN NO WAY AFFECT ANY OTHER OBLIGATIONS OF MOVIEBILL UNDER THIS AGREEMENT. NOTWITHSTANDING THE FOREGOING, ADVERTISER’S SOLE AND EXCLUSIVE REMEDY FOR MOVIEBILL’S FAILURE TO EXHIBIT THE ADVERTISING AS SET FORTH ON THE ORDER WILL BE FOR MOVIEBILL TO “MAKE-GOOD” (MAKE AVAILABLE TO ADVERTISER AN ALTERNATIVE TIME PERIOD OF REASONABLY COMPARABLE VALUE FOR THE RE-EXHIBITION OF SUCH ADVERTISING) WITHIN A REASONABLE TIME PERIOD FOLLOWING NOTICE OF THE FAILURE FROM ADVERTISER.
10. Indemnification. Advertiser is responsible for and will indemnify, defend, and hold harmless Moviebill and its subsidiaries, exhibitors and affiliates, and their owners, officers, directors, employees and agents, from and against any and all direct and indirect losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) resulting from or arising out of any: (a) actual or alleged breach by Advertiser of a provision of this Agreement; (b) negligence or willful misconduct on the part of Advertiser; (c) exhibition, distribution, display, performance, reproduction, or other use by Moviebill of the Advertising, Advertiser Content or Promotional Materials; or (d) damage to property or injury to or death of any person directly or indirectly caused by any use or misuse of any Advertiser Content or Advertising, including, without limitation, and promotional materials or other packaging or materials used in connection therewith. Moviebill will provide Advertiser with notice of any such claim or allegation, and Moviebill has the right to participate in the defense of any such claim at its expense.
11. Termination and Remedies. Moviebill may terminate this Agreement immediately upon any breach by Advertiser of this Agreement (in addition to any other available remedy) or upon not less than thirty (30) days notice to Advertiser for any other reason. Upon termination for breach by Advertiser, Advertiser will not be entitled to the refund of any prepaid fees. Upon any termination, Moviebill is not required to preserve or maintain any Advertiser Content or Advertising. If Advertiser desires Moviebill to provide Advertiser with a copy of any Advertiser Content or Advertising, Advertiser must notify Moviebill in writing within sixty (60) days of the last exhibition of the Advertising (such copy to be provided at Advertiser’s sole expense).
12. Cancellation. Advertiser may not modify or cancel this Agreement except by written consent of Moviebill.
13. Insurance. Advertiser represents that it maintains a general liability insurance policy (with a financially sound and reputable insurance company) in such amounts as Advertiser deems reasonably adequate for its business and as required to perform its obligations hereunder. Moviebill and its affiliates will be named as additional insureds on such policy, and the policy will provide that it will not be subject to modification or cancellation without at least thirty (30) days’ prior written notice to Moviebill. Upon request, Advertiser will furnish Moviebill with a certificate of insurance evidencing the foregoing coverage before the Advertising is exhibited.
14. Assignment. Advertiser may not assign or otherwise transfer this Agreement or any of Advertiser’s rights hereunder without the prior permission of Moviebill. Any attempt to do so in violation of the foregoing sentence will be null and void. This Agreement will be binding on the Parties and upon their heirs, personal representatives, executors, administrators, successors and assigns.
15. Further Documents. The Parties agree for themselves and their heirs, personal representatives, executors, administrators, successors or assign to execute any instruments and to perform any acts that may be necessary or proper to carry out the purposes of this Agreement.
16. Dispute Resolution. This Agreement shall be subject to and interpreted in accordance with the laws of the state of California without regard to the conflicts of laws provisions thereof that would require the application of the laws of any other jurisdiction. Any dispute arising hereunder may be resolved solely through binding arbitration conducted in Los Angeles, California under and pursuant to the commercial arbitration rules of the American Arbitration Association (“AAA Rules”), hereby incorporated and made part of this Agreement by reference, as may be amended from time to time with rights of discovery if requested by the arbitrator. The arbitration shall be before a single arbitrator familiar with entertainment, intellectual property, advertising, and technology law. The prevailing Party in such arbitration shall be entitled to recover its reasonable outside attorneys’ fees and costs incurred in connection with such arbitration. Any award shall be final, binding, and non-appealable, and the Parties hereby expressly waive any and all rights to appeal, or to petition to vacate or modify, any arbitration award issued in a dispute arising out of this Agreement. The Parties agree to accept service of process in accordance with AAA Rules. The Parties and the arbitrator shall maintain the confidential nature of the arbitration proceeding and the award, including the arbitration hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, as may be necessary in connection with a court application for a preliminary remedy or award enforcement, or unless otherwise required by law or judicial decision; in all such cases, the Parties shall use reasonable efforts to maintain the confidential nature of the proceedings.
17. Relationship. The relationship between the Parties under this Agreement is one of independent contractors, and nothing in this Agreement shall create an employer-employee, partnership or joint venture relationship between the Parties. This Agreement does not and is not intended to confer any rights or remedies upon any person or entity other than the Parties. If Advertiser executes this contract as an agency or media buyer for a client, such Advertiser and its client shall be jointly and severally responsible for all payments hereunder.
18. Severability. If one or more provisions of this Agreement are held to be invalid, illegal or unenforceable under applicable law, the Parties agree to renegotiate such provision in good faith, the effect of which comes as close as possible to that of such invalid, illegal or unenforceable provision. In the event that the Parties cannot reach a mutually agreeable and enforceable replacement of such provision, then (a) such provision shall be excluded from this Agreement only to the extent necessary to permit compliance with the minimum legal requirement, (b) the balance of the Agreement shall be interpreted as if such provision were so excluded and (c) the balance of the Agreement shall be enforceable in accordance with its terms.
19. Interpretation. In the interpretation and construction of this Agreement, no account shall be taken of the drafting history of any particular provision or phrase in this Agreement including, without limitation, provisions or phrases removed therefrom prior to execution hereof, and which among the Parties was the originator or drafter of this Agreement or any of the specific provisions or portions thereof. All paragraph headings are for convenience only and do not affect the terms of this Agreement.
20. Signature. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. This Agreement may be executed by facsimile or email, and each such facsimile and/or electronic signature shall be deemed an original for all purposes.
21. Force Majeure. Any failure or delay in performance by Moviebill will be excused (and will not constitute a breach of this Agreement) to the extent due to any cause not reasonably within Moviebill’s control, including, without limitation, third party acts, omissions or failures, casualty, labor disputes, governmental action or acts of God.
22. Entire Agreement. This Agreement sets forth the entire understanding of the Parties and supersedes any and all prior oral and written agreements or understandings between the Parties regarding the subject matter of this Agreement. This Agreement may not be modified, and no waiver of any of the provisions of this Agreement shall be valid, except by a writing signed by both Parties. The waiver by either Party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. In the event that any terms that may appear on an Advertiser’s or agency’s form of purchase order, insertion order, or other order form vary from or conflict with the terms of this Agreement (including without limitation pre-printed terms), the terms of this Agreement will control.