Terms & Conditions
LICENSE AGREEMENT FOR RETRIEVER SOFTWARE
IMPORTANT - READ CAREFULLY: This Agreement is a legal agreement between the USER (“you” or “your”) and Vista Entertainment Solutions (USA), Inc., doing business as Retriever Solutions ("RETRIEVER"). By using the RETRIEVER Software the USER agrees that it accepts and will be bound by the terms and conditions of this Agreement and that this Agreement (including as amended from time to time) will remain in effect until terminated. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT (INCLUDING AS AMENDED FROM TIME TO TIME), DO NOT ACCESS AND USE THE SOFTWARE.
- SOFTWARE LICENSE AGREEMENT
- This Agreement sets forth the terms and conditions under which RETRIEVER licenses the USER to use the Retriever Computer Software and databases storing data generated by the software ("Software"), including any Updates (as defined in clause c) of this Agreement) to which the USER is entitled and the supporting documentation supplied with the Software ("Documentation").
- This Agreement may be amended by RETRIEVER at any time, effective from the earlier of the date (i) the amended Agreement is posted on the Retriever Website (www.retrieversolutionsinc.com); or (ii) written notice of the amended Agreement is delivered to you. By continuing to access and use the Software the USER agrees to be bound by the Agreement, including as amended from time to time in accordance with the terms of this Agreement.
“Affiliate” means in respect of a party, any company, organisation, partnership, person or other entity which directly or indirectly (a) controls, or is controlled by, that party; or (b) is controlled by a company, organisation, partnership, person or other entity which also controls that party, (where “control” means possession of the power to direct or cause the direction of management and/or policies of the relevant entity, whether directly or indirectly through ownership of voting securities, by contract or otherwise).
"Date of Supply" means the date that the USER first accesses the Software.
“Data Protection Legislation” means applicable legislation protecting the personal data of natural persons, including (but not limited to):
- i) Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 ("GDPR") including, where applicable, any local implementing laws, as updated from time to time;
- ii) any data protection laws substantially amending, replacing or superseding the GDPR following any exit of the United Kingdom ("UK") from the European Union, including the "UK GDPR" being the GDPR as transposed into UK national law by operation of section 3 of the European Union (Withdrawal) Act 2018, together with the Data Protection Act 2018, the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 and other data protection or privacy legislation in force from time to time in the UK following the UK exit from the European Union;
- iii) the California Consumer Privacy Act of 2018, as amended or superseded from time to time (“CCPA”); and
- iv) binding guidance and codes of practice issued from time to time by relevant supervisory authorities.
“Generated Data” means any data that is derived or generated from the USER Data as part of providing the Services but excludes any formula, calculation or algorithm used to derive or generate that data.
“Indemnification Conditions” means the following conditions with which a party must comply in order to be entitled to a defence or indemnification under this Agreement by the other party: (i) the indemnified party notifies the indemnifying party in writing of any claim that might be the subject of indemnification promptly after any executive officer of the indemnified party or member of the indemnified party’s legal department first knows of the claim, provided, however, that no failure to so notify an indemnifying party will relieve the indemnifying party of its obligations under the Agreement except to the extent that such failure materially prejudices defence of the claim, and except to the extent of damages incurred by the indemnifying party as a result of the delay; (ii) the indemnifying party is given primary control over the defence and settlement of the claim (subject to the foregoing, the indemnified party may nonetheless participate in the defence at its sole cost and expense); (iii) the indemnified party makes no admission of liability (except as required by applicable law) nor enters into any settlement without the indemnifying party’s prior written agreement (not to be unreasonable withheld); (iv) the indemnified party provides such assistance in defence of the proceeding as the indemnifying party may reasonably request, at the indemnifying party’s reasonable expense; and (v) the indemnified party uses all commercially reasonable efforts to mitigate its losses.
"Intellectual Property Rights” means all rights (including ownership rights, rights or license to use, rights arising through use, and rights which are the subject of applications to register) in or to any trade name, design, patent, copyright, know-how, process, method, invention, database, circuit layout or other form of intellectual property (whether or not registered), and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of those in any part of the world.
This Agreement may be translated into other languages for your ease of reference. In the event any translation of these terms is prepared in any other language, the provisions of the English version shall prevail.
For the purpose of this Agreement, the terms “data controller”, “data processor”, “data subject”, “personal data”, "personal data breach", “processing”, “sensitive personal data”, "supervisory authority" and “appropriate technical and organizational measures” shall have the meanings ascribed to them (or any analogous terms) in the Data Protection Legislation.
- Subject to the terms and conditions hereof, and in consideration of the timely payment of the License Fees, RETRIEVER grants to the USER a limited, personal, non-transferable and non-exclusive license to use and display the Software, use the Documentation and provide access to use the Software (under the terms of this Agreement) to its employees, agents and contractors exclusively for the USER's own lawful internal business purposes relating to the cinema exhibition or entertainment industry (“Permitted Purpose”) for the Term.
- The USER shall not make the Software available to and agrees not to permit any other person or entity to use the Software on a timesharing, sublicensed or other basis.
- License Fee - A Monthly License Fee ("MLF") is payable monthly in arrears based on the number of admissions processed by the USER using the Software. This is a variable fee as detailed in all pricing pages relating to the Software.
- i) The MLF will be invoiced to the USER and charged to the USER’s credit card at the end of each calendar month.
- ii) Payment of the MLF must be made at the end of each month for that month’s usage.
- iii) The USER agrees that RETRIEVER may suspend or terminate the USER’s access to the Software where the USER fails to make payment of any fees payable by the USER to RETRIEVER pursuant to this Agreement on the due date.
- Access conditions - access to the Software and Retriever issues system ("Services") are subject to the following conditions:
- i) USER must ensure that all usernames and passwords required to access the Services are kept secure and confidential. Any unauthorized use or breach of security must immediately upon it coming to USER's notice be advised to RETRIEVER. RETRIEVER may take all steps and actions it reasonably deems necessary to maintain the security of the Services and USER's access to them.
- ii) USER must not attempt to undermine the security or integrity of RETRIEVER's, or any third party systems/networks hosting the Services, computing systems/networks.
- iii) USER must not do anything when using the Services that may impair the functionality of the Services or systems used to deliver the Services.
- iv) USER must not attempt to gain access to materials other than those the USER has been given express permission to access within the Services or on the systems on which the Services are hosted.
- v) USER must not transmit or input to the Services any content or files that may be offensive, in violation of any law, in breach of copyright or trade secret, or which may damage any other computing devices or software.
- RETRIEVER'S RIGHTS
RETRIEVER represents and warrants that it has all rights necessary in order to grant the license rights in the Software and the Documentation granted to USER hereunder. RETRIEVER is acting as a principal and not as an agent for any affiliated or related entity of RETRIEVER in granting this license.
- SUPPORT AND MAINTENANCE
- RETRIEVER shall provide the USER with the support and maintenance for the Software as described in this clause 5, during the Term of the Agreement.
- Assistance: RETRIEVER shall provide the USER with access to the RETRIEVER issues system (internet based access) to log issues and faults with the Software. RETRIEVER will attend to these logged issues on a prioritized basis during RETRIEVER's normal business hours Mondays to Fridays (excluding public holidays).
- Updates: RETRIEVER shall from time to time make available to the USER amended versions, releases, updates, bug fixes and error correction (as contemplated by clause d) below) and other modifications to the Software which are generally made available by RETRIEVER for access by RETRIEVER’s customers (collectively, "Updates").
- Error Correction:
- i) RETRIEVER will use reasonable endeavours to correct Software faults through Updates. Software faults shall be defined as a function(s) of an item of the Software not operating in accordance with the warranties in clause 7 of this Agreement.
- ii) RETRIEVER shall only be required to correct Software faults:
- which are not attributable to malfunction of equipment or software other than the Software supplied by RETRIEVER;
- which are not attributable to incorrect use of the Software by the USER;
- which are not attributable to attempts by the USER to correct Software faults without prior consultation with RETRIEVER; and
- which, when requested by RETRIEVER, are reported in writing by the USER to RETRIEVER with full information and fully documented examples of the reported faults.
- iii) RETRIEVER will at its own option either advise the USER as to the correction or avoidance of the Software faults, or make available to the USER appropriate Updates in a timely manner.
- General Obligations:
- i) The USER shall provide RETRIEVER with access to all necessary information facilities of the USER as reasonably required for the performance of RETRIEVER's obligations under this Agreement.
- ii) RETRIEVER warrants that it will use reasonable endeavours to perform its obligations hereunder.
- iii) All Updates made accessible by RETRIEVER to the USER shall be deemed a part of the Software licensed to USER pursuant to this Agreement.
- iv) The fees payable by the USER to RETRIEVER hereunder do not include any amount payable for attendance at the USER's premises or the provision of new Software amendments or modules other than Updates. RETRIEVER shall have no responsibility for Software faults or any obligation to provide error correction, maintenance enhancements or support services except as set out in this clause 5 (“Additional Services”). Where the USER requests that RETRIEVER provides Additional Services, RETRIEVER may charge the USER fees for such Additional Services at RETRIEVER's rate established at the time such Additional Services are given, together with all expenses incurred by RETRIEVER in providing such Additional Services. RETRIEVER’s provision of Additional Services will be subject to RETRIEVER's general conditions for the provision of computing services current from time to time.
- USER'S WARRANTY
In addition to the warranties set out in clause 9.c), the USER warrants that it:
- has not relied on any representation made by RETRIEVER, or any other party on behalf of RETRIEVER, which has not been stated expressly in this Agreement; and
- will use the Software for the Permitted Purpose only.
- RETRIEVER'S WARRANTIES
- RETRIEVER warrants to the USER that the Software will perform in substantial conformance with the applicable documentation for the Software.
- RETRIEVER warrants to the USER that the Software does not and will not infringe any copyright or trade secret of any third party arising under law. RETRIEVER's sole obligations in the event of breach of the warranty set out in this clause b) are those specified in this clause. Subject to the Indemnification Conditions, RETRIEVER hereby indemnifies and holds harmless the USER from costs, expenses, losses, damages, judgments (including reasonable attorneys and accounting fees) (“Liabilities”) arising out of any breach or alleged breach of the warranty in this clause 7.b) to the limit of the liability established in clause 8; If in RETRIEVER's determination the USER's use of the Software is or is likely to be enjoined by any action or proceeding, RETRIEVER shall have the right, at its expense, to:
- i) obtain the right for USER to continue to use the Software as contemplated hereunder; and/or
- ii) modify the Software to avoid any infringement/violation of the rights of third parties as set out in the first sentence of this clause 7(b); and/or
- iii) create/procure for the USER the right to use a substitute for such portions of the Software that avoid any such actual or alleged infringement/violation.
Upon RETRIEVER making any such remedy(ies) available to the USER, such remedy(ies) shall be in lieu of RETRIEVER's indemnity obligation set forth in the third sentence of this clause 7.b). Notwithstanding and without limiting the foregoing provisions of this clause 7.b), RETRIEVER shall not be obligated to indemnify the USER to the extent such infringement, suspected infringement or alleged infringement arises from:
- iv) use of the Software in a combination by any means and in any form with computer Software and/or systems, including, but not limited to hardware, not specifically approved or recommended by RETRIEVER, if such claim would not have occurred but for such combination;
- v) use of the Software for a purpose other than the Permitted Purpose; or
- vi) modification/alteration of the Software without the prior consent in writing of RETRIEVER, if such claim would not have occurred but for such modification/alteration.
- Except for the express warranties made in this Agreement or any other agreement made in writing between the parties, RETRIEVER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE OR SUPPORT AND MAINTENANCE AND ANY WARRANTIES OTHERWISE IMPLIED BY THE COMMON LAW OR STATUTE OR ARISING OUT OF CUSTOM OR COURSE OF DEALING OR USAGE OF OR IN THE TRADE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE EXCLUDED FROM THIS AGREEMENT TO THE FULLEST EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, RETRIEVER DOES NOT REPRESENT, WARRANT OR COVENANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET ANY REQUIREMENTS OR NEEDS OF THE USER, OR THAT THE SOFTWARE WILL OPERATE ERROR FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE IS COMPATIBLE WITH ANY PARTICULAR PLATFORM.
- LIMITATION OF LIABILITY
- The USER agrees that RETRIEVER's cumulative liability for damages under or in connection with this Agreement, regardless of the form of action, is limited to the fees paid by the USER to RETRIEVER in the 12 months preceding the warranty/claim event. IN NO EVENT SHALL RETRIEVER BE LIABLE (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY ACTION FOR NEGLIGENCE) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA OR RECORDS, LOST PROFITS OR OTHER ECONOMIC LOSS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR ANY OBLIGATION OF CONFIDENTIALITY, EVEN IF RETRIEVER HAD BEEN ADVISED OF THE POSSIBILITY OF, OR COULD HAVE FORESEEN, SUCH DAMAGES OR LOSSES. The USER acknowledges and agrees that the amount of the fees payable under this Agreement is related to the foregoing limitations on RETRIEVER's liability and that the fees would be greater if RETRIEVER's liability were not so limited.
- RETRIEVER will have no liability to the USER in respect of any use of the Software or the Services in combination by any means and in any form with computer programs, systems and or operating systems not specifically approved or recommended by RETRIEVER.
- INTELLECTUAL PROPERTY AND DATA
- The USER will have sole responsibility for the legality, reliability, integrity, accuracy and quality of the data stored by the Software (which may include personal data) (“User Data”). The USER will arrange all consents and approvals necessary under applicable laws for RETRIEVER to access, process and use the User Data as described in this Agreement, including in relation to any personal data contained within the User Data.
- The USER acknowledges and agrees that RETRIEVER and its Affiliates may use, store and otherwise process the USER Data and Generated Data for the purposes of:
- i) performing RETRIEVER’s obligations under this Agreement;
- ii) making sure that the USER is complying the terms and conditions of this Agreement;
- iii) improving or enhancing the Software or the Services, and any Services provided by a RETRIEVER Affiliate;
- iv) understanding how the USER is using the Services;
- v) performing data analysis (including insight, trend, optimisation and/or benchmarking analysis) on an aggregated and/or anonymous basis (“Data Analysis”) and sharing the results of such Data Analysis with any of RETRIEVER’s Affiliates and their customers, provided that RETRIEVER complies with its confidentiality obligations under this Agreement and does not disclose any User Data or personal data as part of sharing the results of such Data Analysis; and
- vi) any other purposes that the parties may agree,
provided that RETRIEVER complies with its obligations under this clause 9.
- The USER warrants that:
- i) it owns or has obtained all necessary rights, title and interest in the USER Data (including any personal data contained therein) and all Intellectual Property Rights and other rights contained therein, as well as the consent of any data subjects necessary for the parties to perform their obligations under this Agreement.
- iii) it has disclosed to the data subjects in compliance with applicable Data Protection Laws how it will collect, use and disclose their personal data; and
- iv) unless otherwise stated in the Agreement, it will not upload any sensitive personal data, nor instruct RETRIEVER to upload, include or process any sensitive personal data, in the Software or the Services.
- The USER, subject to the Indemnification Conditions, indemnifies, defends and holds harmless RETRIEVER from and against all Liabilities arising out of or in connection with the USER’s breach of any of the warranties in clause c).
- As between the parties, all copyrights and all other Intellectual Property Rights in or related to the Software, Documentation, the Services provided by or on behalf of RETRIEVER and the Feedback (as defined in clause j) below) shall remain at all times the property of RETRIEVER and/or its licensors and the USER shall acquire no rights in any of the foregoing except as expressly provided in this Agreement. The USER agrees that it will not, and will not permit others to, use, copy, reproduce, display, deploy, perform, distribute, transmit, make available, create derivative works of the Software or Documentation or to decompile or reverse engineer any of the Software or other software code provided by or on behalf of RETRIEVER.
- Title to, and all Intellectual Property Rights in the USER Data remains with the USER. However access to the User Data in the Software is contingent on having a current license and all MLF's and other fees being paid in full and on time.
- USER grants (or will procure that its relevant licensor grants) to RETRIEVER a non-exclusive royalty free worldwide irrevocable, non-transferable, non-sublicensable, fully paid up, royalty free and limited right and license to access, collect, compile, store, use and otherwise process the User Data solely for the purposes of providing the Services in accordance with the Agreement, including for the purposes set out in clause b).
- USER further grants (or will procure that its relevant licensor grants) to RETRIEVER a non-exclusive royalty free worldwide license for RETRIEVER (or its affiliates) to distribute the USER’s ticketing links for RETRIEVER’s (and its affiliates’ or their customers’) own purposes. USER may revoke such license by providing written notice to RETRIEVER at any time.
- The parties acknowledge and agree that the Generated Data in whatever form and on whatever media remains at all times jointly owned by the parties and each party grants to the other party an unrestricted, royalty free, transferable, sub-licensable, perpetual and irrevocable license, without the need for the approval of the other party, to use, copy, modify and in the case of RETRIEVER only, distribute and commercialize, the Generated Data provided that, neither party may use the Generated Data for any purpose where that use discloses any Confidential Information of that other party.
- The USER acknowledges and agrees that RETRIEVER may use and incorporate royalty free and worldwide in the Services any suggestions, enhancement requested, recommendations and other feedback provided by the USER (“Feedback”) and on such use or incorporation into the Services RETRIEVER will own all necessary Intellectual Property Rights in such Feedback to the extent used or incorporated into the Services.
- BOX OFFICE REPORTING
- Numero (Aust) Pty Limited (Numero), Maccs International B.V. (Maccs) and MovieXchange Limited (MX) (all RETRIEVER Affiliates) will provide the following box office reporting and showtimes services to the USER and its affiliates at no additional cost to the USER:
- i) Numero Services: Box office reporting services described on Numero’s website at www.numero.co via its cloud-based SaaS platform, that enable the USER (and each of its Affiliates) to provide its daily gross box office data (collected on a per film and per cinema basis) listed in Schedule 2 (Box Office Data) to the Numero Services which may be accessed by studios and distributors of cinematic films that use the Numero Services and other cinema exhibitors that provide box office data to the Numero Services.
- ii) MaccsBox Services: Electronic box office returns and hold over data services described on its website at www.maccs.com via its MaccsBox file based platform, that enable the USER (and each of its Affiliates) to provide its weekly box office receipt data (collected on a per film and per cinema basis) listed in Schedule 2 (EBOR Data) to the MaccsBox Service which may be accessed by the studio and/or distributor of the relevant cinematic film.
- Numero (Aust) Pty Limited (Numero), Maccs International B.V. (Maccs) and MovieXchange Limited (MX) (all RETRIEVER Affiliates) will provide the following box office reporting and showtimes services to the USER and its affiliates at no additional cost to the USER:
- iii) MX Services: Showtimes data services described on its website at www.moviexchange.com via its cloud-based SaaS platform, that enable the USER (and each of its Affiliates) to provide its showtimes data (collected on a per film and per cinema basis) listed in Schedule 2 (Showtimes Data) to the MX Services.
- In consideration for the provision of the Retriever Software, the Numero Services, the MaccsBox Services, and the MX Services, with effect from the Date of Supply the USER (including its affiliates) agrees to supply, and authorises RETRIEVER to supply via the Retriever Software, the Box Office Data to the Numero Services, its EBOR Data to the MaccsBox Services and its Showtimes Data to the MX Services.
- SECURITY AND CONFIDENTIALITY
- The USER will be solely responsible for the use, supervision, management and control of the Software and Documentation. The USER will ensure that the Software is protected at all times from access, use or misuse, damage or destruction by any person not authorized by RETRIEVER for that purpose.
- USER must maintain copies of all User Data input to the Software.
Subject to this clause 11, USER acknowledges that if it enables third party applications for use in conjunction with the Services that RETRIEVER may allow the providers of those third party applications access to USER's User Data as required for use of the third party applications. RETRIEVER shall not be responsible for any disclosure, modification or deletion of USER's User Data resulting from such use and/or access by a third party application provider.
- Each party will take appropriate technical and organizational security measures including in accordance with Data Protection Laws against unauthorized or unlawful processing of USER Data or Generated Data, or their accidental loss, destruction or damage and RETRIEVER will, as part of these measures, use reasonable endeavours to back-up USER Data and Generated Data. The USER acknowledges that if there is any loss or damage to USER Data or Generated Data as a result of RETRIEVER’s negligence or breach of this paragraph, the USER’s sole and exclusive remedy will be for RETRIEVER to use reasonable commercial endeavours to restore such lose or damaged data from the latest back-up of the USER Data or Generated Data that RETRIEVER has maintained. Subject to RETRIEVER’s compliance with its obligations under this clause c) RETRIEVER will not be responsible for any loss, destruction, alteration or disclosure of USER Data or Generated Data caused by RETRIEVER, USER or any third party.
- DATA PROTECTION
- Each party acknowledges and agrees that it will comply with all Data Protection Laws applicable to such party in carrying out its obligations under this Agreement. The parties acknowledge and agree that the USER is the data controller and/or “business” in respect of any personal data that RETRIEVER may process in the course of providing the Software and Services in accordance with this Agreement (other than business contact data processed by RETRIEVER to allow it to manage the USER’s account).
- RETRIEVER agrees that it shall:
- i) only process the USER’s personal data within the framework of this Agreement and on the instruction of the USER or as otherwise required by applicable laws. The description of and instructions for the processing of personal data is set out in Schedule 1 to this Agreement;
- ii) promptly refer to the USER any requests, notices or other communication from data subjects or any supervisory authority, for the USER to resolve and, subject to clause g) ,provide reasonable assistance to the USER to assist the USER respond to such communication;
- iii) provide such information to the USER as the USER may reasonably require, and within the timescales reasonably specified by the USER, to allow the USER to comply with the rights of data subjects, including subject-access rights, or with notices served by any supervisory authority;
- iv) within 90 days of the date of termination of this Agreement, return to USER or delete all personal data processed under this Agreement;
- v) implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk associated with RETRIEVER's processing of the personal data; and
- vi) promptly notify USER upon becoming aware of any personal data breach.
- To the extent RETRIEVER processes personal data relating to a natural person who is a Californian resident in accordance with carrying out its obligations under this Agreement, RETRIEVER shall not:
- i) “sell” (as defined under the CCPA) such personal data;
- ii) retain, use, or disclose such personal data for any purpose other than providing the Software or performing the Services specified in this Agreement (or as otherwise permitted by the CCPA), including without limitation retaining, using, or disclosing such personal data for any “commercial purpose” (as defined under the CCPA) other than providing the Software or performing the Services specified in this Agreement; or
- iii) retain, use, or disclose such personal data outside of the direct business relationship between the USER and RETRIEVER.
RETRIEVER certifies that it and each of its employees, agents, and representatives who will receive such personal data understand, and shall comply with, the restrictions set forth in this clause 12.
- Unless stated otherwise in this Agreement, RETRIEVER reserves its right to charge additional reasonable fees for any assistance provided by RETRIEVER to USER to assist USER to comply with its obligations under applicable Data Protection Laws which RETRIEVER considers go beyond a reasonable level of support and/or assistance, provided that such fees will be pre-agreed by the parties in writing.
- If USER deems the disclosure and usage of personal data as permitted under the Agreement constitutes a sale or otherwise modifies USER’s notice and choice obligations to individuals under Data Protection Laws, then USER agrees to provide such notice and choice as required under Data Protection Laws.
- If the USER is required by law to make any deduction or withholding from any amount paid or payable by the USER under this Agreement or RETRIEVER is required by law to make any payment on account of tax (other than tax on the overall net income of RETRIEVER) or otherwise, on or in relation to any amount received or receivable by it under this Agreement then the amount payable by the USER in respect of which such deduction, withholding or payment is required to be made shall be increased to the extent necessary to ensure that, after the making of such deduction, withholding or payment, RETRIEVER receives and retains (free from any liability in respect of any such deduction, withholding or payment) a net amount equal to the amount which RETRIEVER would have received and so retained had no such deduction, withholding or payment been made; and
- The License Fees do not include any value added, sales or similar taxes. In addition to the License Fees, the Customer shall pay to Retriever the amount of all GST, value added, sales or similar taxes chargeable (if any) by Retriever under this Agreement.
- TERM AND TERMINATION
- Term - This Agreement shall become effective on the Date of Supply of the Software and shall remain in effect unless and until terminated pursuant to the terms hereof.
- i) RETRIEVER may terminate this Agreement and the USER’s rights to use the Software if the USER fails to pay any fees payable by the USER to RETRIEVER under this Agreement within 30 days of the due date. RETRIEVER may suspend the USER’s access to all or any part of the Software or Services to prevent or terminate any prohibited use or where RETRIEVER has the right to terminate the Agreement.
- ii) RETRIEVER, in addition to all other rights and remedies it may have under this Agreement or at law or equity, shall have the right to terminate this Agreement and all license rights granted to the USER hereunder by notice in writing to the USER if:
- The USER breaches any material term of this Agreement; or
- The USER becomes insolvent or bankrupt, or enters into liquidation or receivership or any analogous administration under the law of any jurisdiction, whether compulsory or voluntary; or
- The USER is acquired by, merges with or becomes controlled by or affiliated with a competitor of RETRIEVER.
- iii) The USER may terminate this Agreement and its right to use the Software, with or without cause, at any time with 90 days prior written notice to RETRIEVER.
- iv) Immediately upon any termination of the USER's rights to use the Software, the USER shall discontinue use of Software, return all copies of the Software and Documentation and certify to RETRIEVER that is has done so. Any clauses which by their nature should survive the termination of this Agreement shall survive any such termination.
- The parties undertake to use all reasonable efforts in good faith to resolve any dispute which arises between them in connection with this Agreement. This provides for a form of alternative dispute resolution and is not a reference to arbitration.
- A party will, as soon as reasonably practicable, give the other party notice of any dispute in connection with this Agreement.
- Any dispute will be referred initially to a designated representative of RETRIEVER and the designated representative of the USER, who will endeavour to resolve the dispute within 10 days of the giving of the notice; and if the dispute is not resolved within the 10 days, to the Chief Executive of the USER and the Chief Executive of RETRIEVER who will endeavour to resolve the dispute within a further 10 days.
- If, following the dispute resolution procedures set out in (a) to (c) above, the parties fail to resolve the dispute then the parties will try to settle their dispute by mediation before resorting to litigation. Either party may initiate mediation by giving written notice to the other party. The mediator shall be agreed by the parties but if the parties cannot agree on one within 5 days after the mediation has been initiated, then the mediation will be administered by JAMS pursuant to JAMS' International Mediation Rules.
- No formal proceedings for the judicial resolution of any dispute between the parties may be commenced until a dispute has proceeded through the dispute resolution processes set out in (a) to (d) above; PROVIDED THAT, with respect to any claim by RETRIEVER of actual or alleged infringement of any confidentiality or Intellectual Property Right of, or licensed to, RETRIEVER, RETRIEVER, in its sole discretion, may at any time seek judicial resolution with or without resorting to the dispute resolution and mediation processes set out in (a) to (d) above; and
- All dispute resolution procedures will be held in Los Angeles, California, USA, unless otherwise agreed in writing.
- No waiver of any breach of any provisions of this Agreement shall constitute a waiver of a prior, concurrent or subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing.
- RETRIEVER intends that the Services will be available to the fullest extent possible. There will be occasions that the Services may be unavailable to allow for maintenance or development activities to take place. RETRIEVER will endeavour to publish in advance to USER when such activity will take place when RETRIEVER considers that the non-availability will be longer than normally expected.
- This Agreement contains the entire agreement between RETRIEVER and USER with respect to the subject matter hereof, including, but not limited to, the licensing of the Software and provision of the support and maintenance specified in clause 5.
- This Agreement shall be interpreted without reference to its headings (which are included for convenience only).
- This Agreement shall be governed by the laws of the State of California and the parties submit to the non-exclusive jurisdiction of the courts of the State of California in respect of any dispute or proceeding arising out of this Agreement.
- This Agreement does not make either party the employee, agent or legal representative of the other for any purpose whatsoever. Neither party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party. Each party is acting as an independent contractor.
- Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision will be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.
- A party must not assign, transfer or grant a security interest in its rights under this Agreement except if approved in writing by the other party.
- All notices shall be in writing and delivered by email, personally (including by recognised overnight courier) or properly mailed, registered first class mail, postage prepaid to the parties set out at the beginning of this Agreement.
- Because of the unique and trade secret nature of RETRIEVER's confidential information, Retriever's Intellectual Property Rights and the valuable proprietary interest of RETRIEVER in the same, it is understood and agreed by the parties that RETRIEVER's remedies at law may be inadequate and that RETRIEVER shall be entitled to apply for and obtain injunctive and other equitable relief, in addition to all remedies available to it at law, in equity or here under without the necessity of the posting of a bond, in any court of competent jurisdiction to restrain the breach or threatened breach of, or otherwise to specifically enforce, any of the terms of this Agreement.
Schedule 1 – Personal Data
Description of and Instructions for the processing of personal data
Description of the nature of processing
The processing of personal data by RETRIEVER shall be that which is necessary to comply with RETRIEVER’s obligations under the Agreement (if applicable) and the provision of Services.
Duration of processing
The duration of the processing shall be the term of the Agreement.
Categories of data subjects
The personal data concerns the following categories of data subjects: USER’s employees, patrons and business contacts.
Purposes of the processing
RETRIEVER may access, collect and otherwise process USER’s personal data under the agreement for the purposes of:
- providing support services to USER in conjunction with USER’s licensing and use of Software and Services pursuant to the Agreement, including where USER provides RETRIEVER with access to USER’s systems for such purpose;
- performing Retriever’s obligations under the Agreement;
- ensuring that the USER is complying with the terms and conditions of the Agreement;
- improving, testing or enhancing the Services; and
- such other purposes as the parties may agree from time to time.
Where possible, the parties will work together to ensure that personal data is anonymised by USER prior to any transfer to RETRIEVER for processing.
Types of Data
The personal data processed falls within the following categories of data:
- Telephone numbers
- USER’s employee account information including username, ID and transaction history
- Loyalty scheme member information - this is highly configurable by USER but may include member’s name, member’s ID, gender, DOB, email, address, phone number, preferences for contact, movie genres, locations etc.
- Payment card information including credit cards and gift cards (first six and last four digits of a credit card number, cardholder’s name as recorded on the card and card expiry date).