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General terms
1) PREMISES and DEFINITIONS
DDCinema is a rental service of alternative digital contents (hereinafter, “the contents”), relative to operas, classical and pop music concerts and documentaries, for which the Company Qubo s.r.l. having its registered office in Genova (Italy), Via Eridania 5 int. 7 vat. n. 01250600994 tel +39.010.8680303 fax +39.010.8934273 mail info@ddcinema.net (hereinafter, “the Company") owns the rights of distribution in digital cinemas offered via Internet to cinema exhibitors (hereinafter, “the exhibitor”).
The exhibitor is any subject who carries out professionally the activity of management of cinemas and of content projection to the public and that, therefore, to no effect of law can be considered an end-user.
The use of DDCinema service (the "Service") and of the functions of the web site "www.ddcinema.net" (the "Web Site") are governed by the present General Terms.
The Exhibitor acknowledges that the service is rendered in accordance with the technical specifications described in the order form attached to the present general terms (hereinafter, “the technical specifications”) that he/she acknowledges to have read.
In any case, the use of the Service and/or of the functions of the Site following his/her registration will indicate the Exhibitor’s agreement to be bound by these General Terms.
2) SERVICE DESCRIPTION
The Service allows to choose on-line and receive directly at the Exhibitor’s domicile the contents that he/she wishes to screen in his/her cinema through the submission of an order downloadable directly from the web site.
The contents offered by DDCinema can be both pre-recorded and live events. Such events are supplied according to the procedures shown in the “technical specifications” list attached to the order form.
In the attached “technical specifications” the following characteristics are stated:
- the type of physical media on which the content is recorded;
- package and storage specifications of the physical media;
- the technical specifications of each content and its duration;
- the minimum requirements, both hardware and software, necessary for the use of the contents
In order to be able to use the service the Exhibitor shall be equipped with all the tools compatible with the technical specifications indicated by the Company.
The pre-recorded contents will be stored on Dcinema format and sent through courier service by XDC s.a. Liege Sciente Park-Avenue du Prè Athey, 6-B-4031 Angleur- BelgiumDVD to the Exhibitor’s domicile advised in the registration form and must be returned to the same XDC within 40 days after receipt, through the courier shown in the delivery envelope.
The live contents will be sent via satellite.
The company shall provide the Exhibitor with the name of the satellite used and the pointing coordinates of the dish for each event, not less than one week before the Content’s first Exhibition date.
3) SUBSCRPITION TO THE SERVICE
In order to access the Service it is essential to be a cinema exhibitor, to have Internet access and to possess the following tools: (a) Digital projection; (b) Satellite dish of minimum 1 meters; (c) The decoder. To receive the subtitles is necessary to have the HUMAX HDCI 2000.
Furthermore it is necessary to complete the registration process on the Web Site. As part of the registration process the Exhibitor is required to provide, besides general information, also specific information concerning the cinema, the screens, the number of seats per screen and the technology used.
Upon completion of the Registration Process, the Company will send to the Exhibitor a personal ID username and Password that will grant access to the registered area.
In the registered area the Exhibitor can view the prices that he/she shall be granted on the basis of the information supplied, as well as the present general terms.
In order to use the service, the exhibitor shall login to the registered users area and, following the procedure shown on the Web Site, fill in the contract proposal; then, after receiving the acceptance e-mail from the Company, he/she shall send to the same the contract printed on paper and undersigned at bottom for acceptance.
Subsequently, the Exhibitor will be able to select the type of subscription that he/she wishes to take out, will then make a bank transfer for the corresponding amount in favour of the Company and send to the same, by fax, a copy of the payment order and the relative receipt of bank transfer. The date of subscription activation will be confirmed by e-mail to the Exhibitor as soon as the payment is credited on the Company’s account and the contract duly signed for acceptance according to the above instructions is returned to the Company.
If the Exhibitor takes out a prepaid subscription for a variety of events, he/she shall specify for every single content selected the screening period and the cinema where the content will be screened. The Company shall send an order confirmation by e-mail to the e-mail address advised by the Exhibitor.
The Exhibitor is aware that, in order to regulate access to the Service, his/her authentication depends on the verification of the correct ID and password used and that their use and safekeeping fall under his/her sole responsibility.
4) PRICE INFORMATION
For the season 2008 – 2009 (herewith enclosed) the Company offers 11 Operas of which 6 recorded and 5 live that will all be transmitted via satellite. The price of the events will be calculated as a percentage on the net revenue. It is possible to buy a single event or the complete season for a variety of events at the prices provided for by the quotations contracted with Qubo s.r.l.. The exhibitor will be allowed to use the service only in the cinema advised upon registration. The Company reserves the right to withdraw from the contract in case of improper or incorrect use of the Service by the Exhibitor.
All the prices shown on our Web Site or contracted not include VAT.
The Company will send an invoice for the amount received to the e-mail address provided by the Exhibitor.
The Company may change the prices of the contents not yet subscribed at any time and in its sole discretion. Payment in favour of the Company shall be made through bank transfer using the bank details shown in the order form.
The revenue share shall be a percentage on the Net Receipts. The expression “Net Receipts” shall have herein in the following meaning: the amount actually received by the Exhibitor for paid admissions to view the contents at the Cinemas less: 1) all applicable value added or all applicable sales taxes; 2) any intellectual property rights royalty fees payable by the Exhibitor to any third party in respect of the exhibition of the contents (e.g. author rights, artists and music or any other Intellectual Property Rights that may be created in the future, either by law or convention.
The Company will send an invoice for the amount received to the e-mail address provided by the Exhibitor. Invoices shall meet all legal requirements in order to duly comply with TAX law regulations.
The Company may change the prices of the contents not yet subscribed at any time and in its sole discretion.
Payment in favour of the Company shall be made through bank transfer using the bank details shown in the order form
5) SUBSCRPITION DURATION
The contract refers to a theatrical season going from September 2008 to July 2009.
Both recorded and live events shall be sent by satellite at a prearranged date.
The Exhibitor shall advise within the beginning of the season how many and which events he/she intends to screen.
For recorded events not included in the season the Exhibitor will be allowed to keep the HD containing the for 30 days. The subscription to the Service takes effect from the date shown in the subscription activation.
The Exhibitor shall indicate in the order form the contents who he/she intends to show during the year.
The contract shall terminate after the last exhibition date of the content corresponding to whether a single event bought by the Exhibitor.
Access to the service is available exclusively through the username and password in the Exhibitor’s hands, who acknowledges his/her responsibility for any and all activities that occur under his/her login username and password, even by a person or entity other than the subscriber.
The rented HD support will be screenable for a maximum period of 30 days form the date of delivery. The exhibitor acknowledges that, once such term is expired, the system will no longer allow the content screening.
The Exhibitor may terminate the Contract on written notice with no liability to the Company if:
- The Exhibitor reasonably believes that the exhibition of the Content may: (i) prejudice the reputation or goodwill of the Exhibitor; (ii) be illegal; (iii) be objected by any licensing by any licensing or other public body;
- A cinema or a relevant part of a cinema is closed due to national mourning, epidemic, fire, flood, accident, alterations, repairs o decorations, or on any order of the licensing or other public body, or for any cause which the Exhibitor may consider reasonable (provided that the termination shall be in respect of the affected cinema only).
6) CONTENT OWNERSHIP
The object of the Service and therefore all contents sent to the Exhibitor, and the media on which the same are recorded, are and shall remain the sole property of the Company. The Exhibitor can not transfer the rented contents to a third party for no reason whatsoever. The Exhibitor undertakes, under his/her sole responsibility, not to make copies of the rented contents and agrees to hold free and harmless the Company from any claim, action or damage arising out of infringement of the contents’ exclusive rights and copyrights. The Exhibitor undertakes to handle the rented contents with maximum care, complying with their conditions of use, granting their integrity and following with utmost care the instructions provided by the Company about the content return procedure.
7) ADVERTISING SPACES
The Company maintains exclusive advertising rights on the contents screened in the cinemas by the Exhibitor.
The Exhibitor acknowledges that the contents, both pre-recorder and live, may contain an advertising space of a maximum length of 10 minutes, inserted before the beginning of the opera.
In most cases it only contains Sponsors rather than commercials. Anyway, should there be any conflict with the Advertising Agencies, Qubo s.r.l. will be willing to verify each single case.
8) PROMOTION
The exhibitor will be able to download all the advertising materials, posters, flyers and trailers directly from the reserved area of www.ddcinema.net website.
All materials will always show the DDCINEMA logo in the foreground and in no case the exhibitor will be allowed to remove the logo from the advertising material.
Furthermore any Opera screened by the Exhibitor must be advertised on his/her website always showing the DDCINEMA logo in the foreground.
On the other hand, it’s in the Exhibitor’s interest to communicate to the Company the list of the Operas that he/she intends to screen if possible before the beginning of the season, along with the list of the cinemas and the number of seats for each single cinema, as well as the name of the locality where the same are located. This will enable the Company to carry out an important marketing policy in every country where the cinemas are located.
9) CARRIER
The pre – recorded contents if supplied on HD support are delivered through courier by XDC s.a. Liege Sciente Park-Avenue ddu Prè Athey, 6-B-4031 Angleur- BelgiumDVD to the Exhibitor address shown in the registration form.
The Company undertakes to deliver the content within 10 days after receipt of the Exhibitor’s payment or, in case of prepaid subscriptions, after confirmation of receipt of the single order.
Once the content is received, any risk relative to its loss or damage is transferred to the Exhibitor.
Upon content delivery by the courier the Exhibitor must check that the packaging is intact, neither damaged, nor wet or, in any way altered also in the packing materials. Any damage or loss incurred in transit shall be immediately contested to the courier and the Exhibitor shall promptly notify the Company of such claim or, in any case, of any delay or inefficiency caused by the courier in charge of delivery.
The HD support must be returned to XDC within 40 days after receipt, following the appropriate instructions contained in the delivery envelope.
The cost of return service is entirely charged to the Company.
Should the Exhibitor delay or fail to send back the envelope with the rented content, the Company may suspend the Service until the above content is received.
The Company can in any case hold the Exhibitor responsible for his/her failure to return the HD support, debiting him/her a cost of Euro 250,00 to be deducted from the credit of the services that the Exhibitor has subscribed.
10) GUARANTEES AND OBLIGATIONS OF THE EXHIBITOR
The Exhibitor assures to be the owner and/or proprietor and/or manager of the cinema object of the present service.
The Exhibitor guarantees that his/her cinema projection system corresponds to the one indicated upon registration, that it is in perfect condition so as to ensure an accurate reproduction, both visual and acoustical, of the contents and not to damage the HD support supplied by the Company and that all the systems used meet the statutory requirements, therein enclosed those relative to security.
The Exhibitor declares that he/she is in possession of all the equipment necessary for the content reproduction, thus expressly agreeing to hold the Company harmless from any responsibility about it.
The Exhibitor guarantees that all information provided upon registration on the DDCinema website is true, correct, up to date and complete.
The Exhibitor hereby undertakes to immediately notify the Company of any structural and technical change made to the cinema and to the projection system with respect to what previously declared upon registration on DDCinema website.
For pre-recorded events the Exhibitors also undertakes to submit a monthly report of the activities performed in fulfilment of this Contract; such report shall be sent by e-mail to the address info@ddcinema.net every thirty days starting from the date of the first public screening of the Opera in the cinemas of its circuit and shall contain a specification of the amount of sales and revenue relative to the content screening during the reference period, for each screen, showing the number of tickets sold and the gross unit price of each ticket.
The amount of payment due will be calculated and invoiced by Qubo s.r.l. on the basis of the revenue report sent by the Exhibitor. For live events: the screening of live events shall be documented to Qubo srl by e-mail or by fax the one week after the event, specifying:
Movie theatre where the event has been screened
Number of tickets sold
Gross price of each ticket
Total revenue
In case of live events, should the Exhibitor fail to submit the revenue report within the agreed time, Qubo will invoice him/her its percentage calculated on the total revenue of the whole theatre seats and at the average price of Euro 15.00.
Payment of the fees due to Qubo s.r.l. must be effected within the broadcast of the subsequent opera.
For a good quality of Service, the Exhibitor authorizes the Company to verify the veracity of his/her personal data and of all the other information provided and undertakes to cooperate with the Company to this end.
The Exhibitor undertakes not to use the service in order to copy, record, distribute or modify by any means the contents relative to the service supplied, it being understood that any use of the service other than those specified in the present general terms is forbidden. In case of breach of the above obligation, the Exhibitor is bound to hold the Company harmless from any loss, damage, penalty, costs of investigation and litigation, and in any case from any prejudicial effect which the Company could incur because of the Exhibitor’s breach and/or infringement of current national and international regulations on intellectual and/or industrial property rights.
In case of breach by the Exhibitor of one of the obligations provided for in this article, the present contract will then be deemed legally rescinded in accordance with art.1456 of civil code. To that end, the Company has the right to exercise the express termination clause informing the Exhibitor, by registered mail with advice of delivery, of its intent to exercise its termination rights and the resolutive effect will be produced upon receipt of such letter.
11) WARRANTIES and LIMITATION OF LIABILITY OF THE COMPANY
The Company warrants to be the sole owner of all utilization and economic exploitation rights on the contents, for which the Company retains full ownership, title and all other rights..
The Company guarantees that the content has been processed according to the technical specifications contained in the attachment.
For live events, the Company guarantees the service up to the routing of signal towards the satellite operator.
The Company guarantees that all the recording have been made with the consent of all parties involved.
The Company shall not be liable for any delay, malfunction, suspension, discontinuance and/or interruption of Services to the Customer caused by:
- Force majeure or unforeseeable circumstances;
- Delays due to courier services;
- Delays due to Bank services;
- Failure to return all the documents relative to the Contract for Online Rental Services duly countersigned by the Exhibitor.
- Acts and/or omissions of the suppliers of telecommunication services, of electricity and of third parties services in general.
Moreover the Company cannot be held responsible for any malfunction or impossibility to screen the contents caused by the inadequacy of the equipment used by the Exhibitor.
If the Exhibitor finds any anomaly in the received content he/she shall submit a formal claim to the Company through registered mail anticipated by fax within 10 days after date of receipt of the same. If the claim is found to be valid by the Company, the same will take steps to remedy and, if necessary, to send a new content. In any case the Exhibitor will never be entitled to claim for a compensation exceeding the price paid for the content.
12) PRIVACY
The personal data requested during registration and contract performance are stored by the Company in its computer database system for the purpose of fulfilling the obligations arising out of the contract and under no circumstances will they be disclosed to any third party. The Company assures to the Exhibitor the observance of the regulation relative to processing of personal data regulated by the privacy code as per Legislative Decree n.196 of 30/6/2003. The data controller responsible for the processing of provided data is Qubo S.r.l., having its registered office in Genova (Italy), Via Greto di Cornigliano 6/r .vat n. 01250600994, in the person of its legal representative pro tem, unless a Data Processor is designated in accordance with the art.29 of Legislative Decree n. 196/2003.
The Exhibitor expressly declares he/she has received the informative report provided for by art.13 of Legislative Decree N. 196/2003 (Personal Data Security Code) and has been informed of his/her rights guaranteed by art.7 of the same Legislative Decree n.196/2003.
13) GENERAL
Nothing in this document shall be deemed to constitute a partnership between the Company and the Exhibitors and neither party shall do or permit any act to be done whereby it may be considered as being the agent or partner of the other.
Variations of this document will only be effective if agreed in writing by the Company and the Exhibitors.
In the event of any one or more provisions contained herein being held for any reason to be invalid such invalidity shall not affect any other provisions of the Contract.
14) GOVERNING LAW and JURISDICTION
The contract between the Company and the Exhibitor is considered to be concluded in Italy. Any dispute arising out or in connection with the application, execution, interpretation and breach of the present general terms and of the services provided under this contract shall be settled in accordance with the Italian law.
The exclusive place of jurisdiction for any controversy arising out of or relating to the application, execution, interpretation and breach of the present general terms and of the services provided under this contract shall be the Court of Genova.
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