1.  OBLIGATIONS OF BOTH PARTIES

(a)    Fandango Service.  Fandango is engaged, among other things, in the business of producing and distributing movie content, movie theater show times and movie ticketing services, and related products and services, and operates with the uniform resource locator http://www.fandango.com, 1-800-FANDANGO, Fandango-branded affiliate video player, mobile.fandango.com, and other Fandango-branded or owned properties and services (collectively, the “Fandango Site”).  Partner desires to obtain, and Fandango desires to provide, a Fandango-branded service that includes Fandango-branded links (the “Fandango Links”), the Fandango Content and the Fandango Movie Ticketing Service (all as defined below) (collectively, the “Fandango Service”) on the Partner Site so that users of the Partner Site (the “Partner End Users” or “End Users”) have the ability to access the Fandango Service (including the Fandango Content and Fandango Links) and to link to and conduct movie ticketing transactions through the Fandango Site, pursuant to that certain order form executed by the parties (the “Order Form”). 

The Partner Site shall be primarily developed, designed, controlled, maintained and hosted by Partner.  Partner will integrate (with Fandango’s reasonable assistance) into the Partner Site the Fandango Service, including the Fandango Content, the Fandango Links and the Fandango Movie Ticketing Service.  “Fandango Content” includes mutually-agreeable movie-related content and functionality, filmography information, movie synopsis data, photo or graphical images, movie ratings and reviews, and movie showtimes and theater listings data. Other movie-related Fandango Content may be integrated upon mutual agreement of the parties. The placement and use of such Fandango Content on the Partner Site is subject to Fandango’s prior written consent.

(b)    Launch Date.   Both parties will use commercially reasonable efforts to launch publicly the integrated Fandango Service on or about the Launch Date, as set forth on the Order Form, which may be changed by the mutual consent of the parties (not to be unreasonably withheld).

(c)    Fandango Brand Usage. Partner will prominently display Fandango Brand Elements (e.g. Fandango logo, name, etc.) adjacent to any Fandango Content and according to Fandango’s Brand Usage Guidelines, as amended from time to time, a current copy of which is available at http://images.fandango.com//doc/Online_brand_usage_guidelines_updated_.pdf  , and is incorporated herein by reference. The level of prominence, frequency, size and placement of such Fandango Brand Elements are subject to the prior mutual written consent of the parties. Such Brand Elements will contain Fandango-branded links (the “Fandango Links”) to enable End Users to access the Fandango Site.

 

2.  PARTNER’S DUTIES 

(a)     Development and Maintenance of Partner Site.  Partner will integrate the Fandango Service as contemplated herein and thereafter host, operate and maintain the Partner Site on its servers.  The Partner Site will provide Partner End Users the ability to:  (i) access and interact with the Fandango Content; (ii) obtain or access movie theater information and movie showtime information on the Partner Site or on the Fandango Site; and/or (iii) purchase movie tickets online (“Fandango Movie Ticketing Service”) on the Fandango Site by accessing the Fandango Site via Fandango Links contained in the Partner Site. Partner agrees to maintain the Fandango Links on the Partner Site and to allow Users who click on such Fandango Links to access the Fandango Site directly and as quickly as the technology permits.

(b)    Restrictions on Partner.  Partner shall not include in the Partner Site any materials that it knows or has reason to know (i) are libelous, defamatory, invasive of any right of publicity or privacy or other third party right; (ii) constitute deceptive advertising practices; (iii) violate any applicable law, rule or regulation; (iv) infringe, misappropriate or otherwise violate any copyright, trademark, patent or other intellectual property right of any third party; (v) promote or link to the services of any Fandango Service competitor or (vi) knowingly contain any virus, time-bomb, worm or other harmful code designed to delete or impair the function of any other software or system.  If Fandango provides notice to Partner that the Partner Site violates the foregoing or the Fandango Brand Usage Guidelines or otherwise causes Fandango reasonable objection to the use of and/or presentation of Fandango Content therein, both parties will use commercially reasonable efforts to resolve such violation or objection promptly.

(c)    End User Support.  Partner will manage, maintain and provide support for Partner End Users who access and use the Partner Site other than the Fandango Movie Ticketing Service.

(d)    Exclusivity.  During the Term, Fandango shall be the exclusive showtimes and ticketing partner on the Partner Site.  During the Term, (i) Partner will not enter into any arrangement or agreement with any other party to provide movie theater information, movie showtime information or movie ticketing functionality for online or electronic (including without limitation, through wireless or wireline telephone devices) purchase or redemption of movie tickets anywhere on the Partner Site or in any link directly from the Partner Site, (ii) the Partner Site will contain no links (including links in advertising or any content areas) that link to non-Fandango showtime information, movie theater information or movie ticketing functionality for online or electronic purchase or redemption for movie tickets, and (iii) the Partner Site will contain no advertisements, links or promotions for any third parties offering movie theater information, movie showtime information or movie ticketing functionality comparable to that contained in the Fandango Service.  Notwithstanding the exclusivity provision above, nothing contained in these Terms shall prohibit Fandango from entering into any promotional, marketing, distribution or other type of agreement whether or not similar to these Terms with any other party.

 

3.  FANDANGO’S DUTIES

(a)    Development and Maintenance of Fandango Service.  Fandango will maintain at its own cost the Fandango Service and the Fandango Site and will reasonably assist Partner in integrating the Fandango Service into the Partner Site. All features, functionality, pricing rates, and usage terms and conditions in connection with the Fandango Service and the Fandango Site are determined by Fandango in its sole and absolute discretion.

(b)    End User Support.  Fandango will manage, maintain and provide support for the Fandango Service in connection with Partner End Users who conduct movie ticketing or other transactions on the Fandango Site.  Such support will include, but not be limited to, sales assistance, inventory management, fraud prevention, ticket purchase transactions, ticket fulfillment and delivery, transaction confirmation, refunds, and customer service.  Fandango will be the merchant of record for all ticketing transactions conducted through the Fandango Site.  Fandango will provide customer support to Partner End Users using the Fandango Movie Ticketing Service via its standard customer support telephone phone line at a level substantially equivalent to the customer service that Fandango provides for other Fandango end users.

 

4.  FANDANGO LICENSED CONTENT

(a)    Licensed Content.   Fandango hereby grants to Partner a non-exclusive, non-sublicensable, non-transferable, royalty-free, worldwide license to use, transmit, reproduce, publicly perform and publicly display the following (the “Licensed Content”) solely in connection with the Fandango Links on the Partner site: (i) Fandango’s domain names, trademarks, service marks, trade dress, trade names and proprietary logos, (“Fandango Marks”) (ii) information about Fandango and its businesses, as provided by Fandango to Partner (iii) URLs for Fandango’s websites and mobile sites, and (iv) any text, photography, footage, artwork or other creative elements supplied by Fandango (if any) solely for use in connection with the Fandango Links on the partner Site and the Fandango Service.  Partner shall have the right to include hyperlink(s), banner ads, click-throughs and other Internet browser-based devices that, when clicked, will direct a user to one or more pages within the Fandango Site.  The licenses granted under this Agreement will be effective throughout the Term only and shall terminate upon the termination or expiration of this Agreement for any reason.  Partner will not alter, modify, or amend the Fandango content or Fandango Marks, or remove or alter any intellectual property or proprietary notices appearing in connection therewith, without the prior written consent of Fandango.

(b)    Use and Rights to Licensed Content. Partner shall use the Licensed Content only as expressly set forth herein.  The Licensed Content can only be used and displayed on or in connection with the Partner Site in the mutually-agreed manner (unless Fandango provides prior written consent to Partner for other uses of the Licensed Content, including without limitation use in other applications on the Partner Site) and only in connection with the Fandango Service.  Except as expressly provided in this Agreement, Fandango does not grant Partner any rights or licenses in or to the Licensed Content, the related names and trademarks or associated components, including, without limitation, the content and proprietary systems used by Fandango or any Fandango third-party partner in connection with the Licensed Content.  Without limiting the generality of the foregoing, Partner shall not sublicense, resell or redistribute the Licensed Content without Fandango’s prior written consent.

(c)    Ownership of Licensed Content. Partner acknowledges and agrees that Fandango (and where applicable Fandango third-party partners who may supply portions of the Licensed Content) owns all copyrights and other proprietary rights in and to the Licensed Content.  Partner shall not, by virtue of this Agreement or by virtue of its access to the Licensed Content, obtain any copyright or other proprietary right or interest in or to the Licensed Content except the rights specifically granted to Partner herein.

(d)    Approval. Partner agrees that Fandango has the right to and must approve the implementation of such Licensed Content prior to Partner displaying such content on the Partner Site, such approval not to be unreasonably withheld.

 

5.  OPERATION AND MAINTENANCE

(a)    Technical Contacts.  Each party shall provide the other a technical contact to manage the integration of the Fandango Service into the Partner Site and, on an ongoing basis, to be available in the event of technical problems in the operation of the Fandango Service within the Partner Site.

(b)    Remedy of Technical Problems.  Neither party guarantees uninterrupted operation of its respective sites, properties, or services.  However, in the event of technical problems in the operation of the Fandango Service or the Partner Site, whether in the operation of either party’s site’s servers or in the capacity or continuity of its connections to the Internet, or otherwise, each party shall take commercially reasonable measures to remedy any such problems in a timely manner and to promote the successful operation of the Fandango Service within the Partner Site.

 

6.  FINANCIAL ARRANGEMENTS

(a)    Advertising and Other Revenue.  Partner will retain 100% of all advertising, sponsorship and promotional revenue generated on the Partner Site.  Fandango will retain 100% of all advertising, sponsorship and promotional revenue generated on the Fandango Site and through the Fandango Service.   

 (b)    Service Fee (Subject to Waiver).  In consideration of Fandango providing Partner the Licensed Content, and other undertakings hereunder, starting on the Launch Date and continuing through the remainder of the Term, Partner shall pay Fandango the Service Fee, as provided on the Order Form.   However, in light of a larger media purchase by Partner, such monthly Service Fee may be waived for any period during which Partner is continuing to make a media purchase at the same or a higher spending level satisfactory to Fandango.

(c)    Service Fee Payment Terms.    Fandango shall give Partner at least sixty (60) days’ prior written notice of any intent to end the Service Fee waiver due to Partner’s failure to maintain a satisfactory media spend.  In such event, Fandango shall thereafter bill Partner for the Service Fee on a monthly basis and Partner shall pay all invoices within thirty (30) days of receipt of each invoice. Late payments will be assessed an interest charge of one percent (1%) per month, or the maximum rate permitted by law, whichever is lower.  Fandango, in its sole discretion, may terminate this Agreement or suspend its performance hereunder if Partner fails to pay any invoice within sixty (60) days after Partner receives such invoice.  Should it become necessary to institute collection proceedings, Partner shall pay all costs incurred by Fandango, including, without limitation, reasonable and verifiable attorney fees, whether or not suit is filed.

 

7.  OWNERSHIP OF INFORMATION AND USER DATA

(a)    Ownership of Information.  With the exception of the Fandango Service, Partner will own all rights to the statistical and Partner End User information related to the Partner Site and all data collected, generated or derived therefrom (“Partner Proprietary Information”).  Fandango will own all rights to such information related to the Fandango Service (including without limitation all information contained in the Reports), the Fandango Site and all data collected, generated or derived therefrom (“Fandango Proprietary Information”). Any use, display or sharing of Partner Proprietary Information by Fandango is subject to Partner’s prior written consent. Any use, display or sharing of Fandango Proprietary Information by Partner is subject to Fandango’s prior written consent.    

(b)    Fandango’s Privacy Policy; Terms of Service.  Fandango’s privacy policy then in effect (the “Fandango Privacy Policy”) shall apply to the Fandango Service, the Fandango Site and any End User information collected in connection with the Fandango Service or Fandango Site.  All such transactions on the Fandango Service will be subject to Fandango’s then-current terms of use (the “Fandango Terms”).  The Fandango Terms shall fully describe the procedures and practices followed by Fandango regarding the collection, use, disclosure and retention of End User information.  Fandango shall include on the Fandango Site a link to the Fandango Privacy Policy and the Fandango Terms. 

(c)    Partner’s Privacy Policy; Terms of Service.  With the exception of the Fandango Service, Partner’s privacy policy then in effect (the “Partner Privacy Policy”) shall apply to the Partner Site and any End User information collected in connection with the Partner Site.  All such transactions on the Partner Site will be subject to Partner’s then-current terms of service (the “Partner Terms”).  The Partner Terms shall fully describe the procedures and practices followed by Partner regarding the collection, use, disclosure and retention of End User information.  Partner shall include on the Partner Site a link to the Partner Privacy Policy and the Partner Terms. 

(d)    Security.  Each of the parties will ensure that it has commercially reasonable security measures in place to safeguard the collection, storage, and delivery of any End User information, while in their respective possession or control.

 

8.  TERMINATION

(a)    Termination.  This Agreement may be terminated by either party prior to the expiration of the Term upon delivery of at least 30 days prior written notice of termination to the other party.

(b)    Termination for Breach.  This Agreement may be terminated by either party prior to the expiration of the Term upon delivery of written notice of termination to the other party: (i) if the other party materially fails to perform or observe any material term or condition in this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice of breach from the non-breaching party (ii) (ii) if the other party (A) makes an assignment for the benefit of creditors, (B) admits in writing its inability to pay debts as they come due, (C) voluntarily files a petition or similar document initiating any bankruptcy or reorganization proceeding, or (D) involuntarily becomes the subject of a petition in bankruptcy or reorganization proceeding and such proceeding shall not have been dismissed or stayed within sixty (60) days after such filing; or (iii) if the other party is prevented from performing or is unable to perform any of its obligations under this Agreement for more than thirty (30) days due to a Force Majeure Event (as defined below) set forth in Section 14(e).

(c)    Effects of Termination. Upon the expiration or termination of the Term, all licenses granted hereunder shall immediately terminate, and each party shall immediately cease using, and shall promptly return and purge its files of, all material and any Confidential Information (as defined below) received from the other party in connection with the transactions contemplated by the Order Form.  All Terms and Conditions that, by their sense and content, are intended to survive the expiration or termination of the Term, shall so survive, regardless of the reason of such expiration or termination, including, without limitation, Sections 5 through 14.  In addition, each party shall pay the other party the balance of the payments owed, if any, to the other party upon termination.

 

9.  INTELLECTUAL PROPERTY

(a)    Use of Marks. In connection with the licenses granted herein, each party will have the unilateral right to establish such quality standards and additional terms and conditions concerning the use of its Marks as such party deems reasonably necessary to protect its Marks, such as the Fandango Brand Usage Guidelines.  All use of a party’s Marks, and the goodwill associated with such Marks, shall inure to the benefit of the respective owner of the Marks.  Each party agrees that it will not, at any time during or after the Term:  (i) file any trademark application with the United States Patent and Trademark Office, or with any other governmental entity anywhere in the world, for the other party’s Marks, or (ii) modify or use any of the other party’s Marks or any confusingly similar mark as part of a trademark, service mark, trade name, fictitious name, domain name, company or corporate name anywhere in the world other than as authorized herein.  The presentation of the Marks will at all times bear the ™, sm or ® symbols where applicable, and be such that the ownership of any particular Mark is clear.

(b)    Intellectual Property.  Partner retains all right, title and interest in and to all intellectual property rights embodied in the Partner Site (excluding the Fandango Service or any Fandango Marks contained therein), and Fandango retains all right, title and interest in and to all intellectual property rights embodied in the Fandango Service (excluding any Partner Marks contained therein).

 

10.  REPRESENTATIONS AND WARRANTIES. 

Each party represents and warrants that it:  (a) has the right, power and authority to enter this Agreement and to perform all of its obligations hereunder; and (b) shall abide by all applicable federal, state and local laws and regulations with respect to online activities, use of End User data and the services offered by each party in connection with this Agreement.

 

11.  INDEMNIFICATION

(a)    Indemnification by Partner.  Partner shall indemnify, defend and hold harmless Fandango and its affiliates, and their respective agents, employees, officers, shareholders, directors, successors and assigns (collectively, the “Fandango Indemnitees”), from, against and in respect of any damages, claims, allegations, losses, charges, actions, suits, proceedings, judgments, interest, penalties, amounts paid in settlement, costs and expenses (including reasonable and verifiable attorneys’ fees)  which are imposed on, sustained, paid by, incurred or suffered by or asserted against any of the Fandango Indemnitees directly or indirectly related to, arising out of, or resulting from third party claims relating to (i) its breach or alleged breach of any covenant, representation or warranty hereunder; (ii) the acts, omissions or breach of Partner, its agents or representatives in connection with the performance of its obligations under this Agreement; (iii) any claim that the Partner Site or the Partner Marks, or the use or operation of the content or services provided through the Partner Site (except for the Fandango Services or any Fandango Marks contained therein), infringes or violates any third party’s copyright, patent, trade secret, trademark, right of publicity or right of privacy; or (iv) any actual, alleged or contributory patent or copyright infringement, misappropriation of confidential information, or violation of other intellectual or proprietary rights related to the use of the Partner Site or the Partner Marks (except for the Fandango Services or any Fandango Marks contained therein).

(b)    Indemnification by Fandango.  Fandango shall indemnify, defend and hold harmless Partner and its affiliates, and their respective agents, employees, officers, shareholders, directors, successors and assigns (collectively, the Partner Indemnitees”), from, against and in respect of any damages, claims, allegations, losses, charges, actions, suits, proceedings, judgments, interest, penalties, amounts paid in settlement, costs and expenses (including reasonable and verifiable attorneys’ fees)  which are imposed on, sustained, paid by, incurred or suffered by or asserted against any of the Partner Indemnitees directly or indirectly related to, arising out of, or resulting from third party claims relating to its breach or alleged breach of any covenant, representation or warranty hereunder

(c)    Procedures.  Any indemnitee seeking indemnification must give prompt notice to the parties from whom indemnification is sought; provided, however, that failure to give prompt notice will not relieve the indemnifying party of any liability hereunder except to the extent the indemnifying party has suffered actual material prejudice by such failure.  The indemnifying party shall have the right to assume and control the defense and settlement of any such third party claims, and the indemnitees will reasonably cooperate at their own expense in the defense or prosecution thereof.

 

12.  DISCLAIMER OF WARRANTIES/LIMITATION ON LIABILITY. 

DUE TO THE COMPLEX NATURE OF COMPUTER SOFTWARE AND INTERNET SERVICES, NEITHER PARTNER NOR FANDANGO WARRANTS THAT THE INTERNET SERVICES PROVIDED BY EACH OF THEM RESPECTIVELY IS COMPLETELY ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTION, OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, REGARDING EITHER PARTY’S PERFORMANCE UNDER THIS AGREEMENT ARE EXPRESSLY EXCLUDED.  WITHOUT LIMITING THE FOREGOING, EACH PARTY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 11 AND EACH PARTY’S CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 13, NEITHER PARTY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, ECONOMIC, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES INCURRED BY THE OTHER PARTY, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, EVEN IF THE OTHER PARTY HAS ADVISED THAT SUCH DAMAGES ARE POSSIBLE AS A RESULT OF ANY BREACH OF WARRANTY.  NOTHING PROVIDED HEREIN SHALL LIMIT THE PARTIES’ RIGHT TO SEEK INJUNCTIVE RELIEF AS SET FORTH IN THIS AGREEMENT.

13.  CONFIDENTIALITY

(a)    Confidentiality.  During the Term and after the termination or expiration of the Term, neither Fandango nor Partner shall disclose to any third party, directly or indirectly, without the prior approval of the other, these Terms and Conditions, the relationship between the parties, the transactions described in the Order Form or any other non-public information relating to the business of the other party (“Confidential Information”), except on a confidential basis to its business, legal and financial advisors, employees, consultants, officers and directors who have a need to know or as required to be disclosed under applicable law or by legal process and who (x) have binding, written agreements with the receiving party that protect such Confidential Information from unauthorized use and disclosure and/or (y) owe a duty, fiduciary or otherwise, to the receiving party to protect such Confidential Information from unauthorized use and disclosure.  Notwithstanding the foregoing, information will not be deemed Confidential Information if such information:  (i) was furnished to the recipient before the Launch Date by a source other than one having an obligation of confidentiality to the providing party; (ii) hereafter becomes known (independently of disclosure by the providing party) to the recipient directly or indirectly from a source other than one having an obligation of confidentiality to the providing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of the Order Form by the recipient; or (iv) was independently developed by the recipient without use of, or reference to, the providing party’s Confidential Information, as demonstrated by written records.  Each party will be deemed to have satisfied its confidentiality obligations hereunder if it affords the other party’s Confidential Information with the same degree of confidentiality as it affords to its own sensitive business information, and at a minimum with a reasonable degree of care.  Neither party will use the other’s Confidential Information for purposes other than those necessary to directly further the purposes of the Order Form.  If a receiving party is required by a government authority or judicial action to disclose any Confidential Information of the disclosing party, it will, to the extent permitted by law, cooperate with the disclosing party and provide the disclosing party with prompt notice of such requirement(s) prior to disclosing such Confidential Information, so that the disclosing party may seek an appropriate protective order or waive compliance by the receiving party of the provisions herein.  If, in the absence of a protective order or the receipt of a waiver hereunder, a receiving party is nonetheless, in the opinion of its independent counsel, legally required to disclose the disclosing party’s Confidential Information or else stand liable for contempt or suffer other censure or penalty, the receiving party may disclose such information without liability hereunder; provided, however, that the receiving party shall promptly notify the disclosing party of such requirement and shall disclose only that portion of such Confidential Information which it is legally required to disclose. 

 

14.  MISCELLANEOUS

(a)    Assignment.  Neither party may transfer or assign its rights, duties or obligations hereunder to any person or entity, in whole or in part, without the prior written consent of the other party, which consent shall not be unreasonably withheld.  Notwithstanding the foregoing, either party may assign the Order Form, upon prior written notice to the other party, to an unaffiliated entity (but not to a competitor of the non-assigning party or any of its affiliates) pursuant to a merger or consolidation of such party, or of any parent of such party, with or into any other entity.

(b)    Relationship of Parties.  Neither the Order Form nor the cooperation of the parties contemplated herein shall be deemed or construed to create any partnership, joint venture or agency relationship between Fandango and Partner; and neither party is, nor shall either party hold itself out to be, vested with any power or right to bind the other party contractually or act on behalf of the other party as a broker, agent or otherwise.  The relationship of the parties shall at all times be and remain that of independent contractors.

(c)    Notices.  Any notices or demands which shall be required to be given to either party, shall be in writing and shall be sent via certified mail, return receipt requested, by confirmed facsimile, or by overnight courier to the address indicated in the Order Form (or as later amended by notice sent to the other party).

(d)     Equitable Relief.  Each party agrees that a breach of the provisions herein relating to the use or disclosure of the other party’s Confidential Information, the Fandango Content, and/or Marks may result in immediate and irreparable harm to the other party and that money damages alone may be inadequate to compensate the non-breaching party.  Therefore, in the event of such a breach, the other party will be entitled to seek equitable relief, including, without limitation, a temporary restraining order, temporary injunction or permanent injunction, without being required to post a bond.  The rights granted to the parties under this provision are in addition to any other remedies available to the parties under these Terms and Conditions, or common or statutory law.

(e)    Force Majeure.  If either party is prevented from performing or is unable to perform any of its obligations hereunder due to causes beyond the reasonable control of the party invoking this provision, including, without limitation, acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes, fires, interruptions in telecommunications or Internet services or network provider services (each, a “Force Majeure Event”), such party’s performance shall be excused and the time for performance shall be extended accordingly, provided that the party immediately takes all reasonably necessary steps to resume full performance.  If a party’s performance is prevented or delayed for more than thirty (30) days due to a Force Majeure Event, then the other party may terminate the Order Form upon delivery of written notice to the non-performing party.  Notwithstanding anything to the contrary herein, in no event shall a Force Majeure Event excuse either party of any payment obligation unless such payment is for services that have not been performed as a result of a Force Majeure Event.

(f)    Governing Law; Venue.  The Order Form shall be governed by and construed in accordance with the substantive and procedural laws of the State of California applicable to agreements made and to be performed entirely within such state, without reference to its choice of law provisions.  The parties hereto consent to the exclusive jurisdiction and venue of the state and federal courts sitting in Los Angeles County, California for any dispute arising out of or related to the Order Form. If any proceeding is brought under the Order Form, the prevailing party shall be entitled to its reasonable and verifiable attorneys’ fees and costs and expert witness fees.

(g)    Severability, Waiver.  The invalidity or unenforceability of any provision herein shall not affect the validity or enforceability of any other provision herein.  In the event that any provision herein is determined to be invalid, unenforceable or otherwise illegal, such provision shall be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the parties, and the remainder of these Terms and Conditions shall be in full force and effect.  No term or condition herein shall be deemed waived, and no breach shall be deemed excused, unless such waiver or excuse is in writing and is executed by the party against whom such waiver or excuse is claimed.

(h)    Entire Agreement.  The Order Form sets forth the entire understanding between the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter thereof.  The Order Form may be modified only in written agreement signed by both parties.

(i)    Counterparts. The Order Form may be executed in one or more counterparts, each of which shall constitute an original and all of which taken together shall constitute one and the same document.  The parties may sign facsimile copies of the Order Form, which shall each be deemed originals.

(j)    Contract Interpretation.  Ambiguities, inconsistencies or conflicts in the Order Form shall not be strictly construed against the drafter of the language but will be resolved by applying the most reasonable interpretation under the circumstances, giving full consideration to the parties’ intentions at the time the Order Form is entered into, and common practice in the industry.