FANDANGO
PROMOTIONAL CODE TERMS AND CONDITIONS
1.
Promotional Codes.
(a) The parties may authorize the issuance of promotional codes by
jointly executing order forms from time to time ("Order Form").
Fandango shall provide to Customer the number of promotional
codes described in each Order Form (the "Promotional Codes"),
each redeemable for one or more movie tickets in the manner and,
if applicable, for the maximum amount specified in the applicable
Order Form (the "Maximum Redemption Amount").
(b) Promotional Codes may be used by Customer only for the
purpose set forth in the applicable Order Form ("Promotion").
Customer shall not resell Promotional Codes unless authorized
separately in writing, and shall only use Promotional Codes for the
designated Promotion. Customer may not use or distribute any of
the Promotional Codes in connection with tobacco, firearms or
pornography. Fandango reserves the right to terminate any Order
Form should Fandango in its sole discretion determine that
Customer is damaging or may damage the Fandango name, brand
or reputation, including, but not limited to, disparagement of the
Fandango name or brand, deceptive or misleading use of the
Fandango name or brand, or use of the Fandango name or brand in
connection with inappropriate content.
(c) Fandango shall use commercially reasonable efforts to cause
each Promotional Code to be unique, secure and unpredictable.
Each Promotional Code shall expire on the date set forth in the
applicable Order Form (the “Redemption Termination Date”), and
shall not be redeemable after such date. Customer acknowledges
and agrees that Promotional Codes will only be redeemable for
movie tickets through use of the Fandango
website
www.fandango.com (the “Fandango Site”), and shall not be
redeemable on Fandango’s mobile or voice-recognition telephone
service, 1-800-FANDANGO, or for movie theaters currently not
enabled for remote ticketing with Fandango. Unless otherwise
stated in the applicable Order Form, Promotional Codes are singleuse. If for any reason the actual cost of a movie ticket is less than
the applicable Maximum Redemption Amount, the consumer shall
not be entitled to use the balance in a subsequent transaction, or to
a refund of the difference. If the actual cost of a movie ticket is
more than the applicable Maximum Redemption Amount, the
consumer must pay any balance due at time of redemption.
2.
Custom Webpage. Customer may wish to purchase a
Custom Webpage in connection with the purchase of Promotional
Codes, in which case Fandango shall create, host and maintain a
co-branded area on the Fandango Site on which consumers may
redeem such Promotional Codes. The creative content and design
contained on the Custom Webpage shall be, at Customer’s option,
(i) supplied by Fandango and subject to the reasonable approval of
Customer, and/or (ii) supplied by Customer and subject to the
reasonable approval of Fandango. No portion of the creative
content and/or design shall be used anywhere on the Fandango Site
or the Customer’s website without the prior written consent of both
parties, and such approval shall not be unreasonably withheld or
delayed. Customer shall timely deliver, along with all necessary
licenses, the logos, trademarks, copyrights and/or other proprietary
intellectual property needed to create and display the Custom
Webpage.
Custom Webpage will be fully developed and
operational as soon as practicable once all intellectual property and
creative content is supplied to Fandango. Pricing for Custom
Webpage shall be set forth on the applicable Order Form.
3.
Visa Prepaid Cards/Alternative Redemption. Customer
may elect to purchase Fandango Visa Prepaid Cards instead of or
in addition to Promotional Codes; if applicable, pricing shall be set
forth on the applicable Order Form.
4.
Payments and Fees.
(a) Prior to delivery of Promotional Codes and/or Visa Prepaid
Cards to Customer, Customer shall pay Fandango the initial
required payments per the terms of the applicable Order Form.
Once paid, orders will be supplied to Customer FOB as of
shipment, whether physical or electronic. Customer deposits shall
be non-interest bearing.
Rev. 03/01/10
(b) During the Promotion, Promotional Code redemptions and any
other applicable fees per the Order Form shall be deducted from
the deposit paid by Customer. Any projected redemption rates
provided to Customer by Fandango are estimates only, and are not
binding upon Fandango. Pricing subject to review periodically if
underlying pricing assumptions change or if the Promotion’s terms
were not properly or fully disclosed by Customer.
(c) If, during the Promotion, the initial deposit ever falls below
fifty percent (50%) of the initial amount paid, Customer will be
invoiced to replenish the balance. If not paid by the deadline on
the invoice, Fandango may, in its discretion, deactivate or decline
to redeem the applicable Promotional Codes. Additional payment
terms are set forth in the applicable Order Form.
(d) If any Promotional Code funds remain on deposit at the end of
a Promotion, such excess funds shall be refunded to the Customer
within 90 business days of receipt of an IRS form W-9 from the
Customer; however, Fandango may retain a reserve sufficient to
fund any anticipated program liabilities. Administrative and other
fees are not refundable.
5.
Customer Service. Fandango will provide customer
service to consumers with questions or concerns about the use of
Promotional Codes and Visa Prepaid Cards. Such customer
service shall be at a level substantially similar to the customer
service that Fandango provides for its own customers. Customer
will provide customer service to consumers with questions or
concerns about the Promotion. Customer will provide to Fandango
email and phone contact information for customer service to
consumers with questions about the Promotion. This information
may be displayed on the Fandango Site or given out by Fandango
customer service personnel.
6.
Cancellation and Replacement Codes. If Customer
requires all or part of their Promotional Codes to be deactivated,
and replacement codes issued for all or part of the original order
amount, administrative costs shall apply, as set forth in an Order
Form addendum at that time. If any Promotional Codes remain at
the end of a Promotion, Customer may request to extend the
expiration date of such Promotional Codes; additional fees will
apply. Additionally, should Customer cancel a Promotion after the
Promotional Codes are in the stream of commerce, a cancellation
fee per unredeemed Code shall be assessed.
7.
Promotional Materials and Marketing. Subject to the
prior approval of Fandango, Customer will create all materials
needed to market and promote each Promotion, and shall be solely
responsible for distribution of Promotional Codes to consumers.
Customer shall have the right to include the Fandango name in
materials it creates solely to market and advertise the Promotions,
subject to the prior reasonable approval of Fandango. Customer
shall not issue any press release relating to any Promotion or the
relationship between the parties without the prior written approval
of Fandango. In addition, Customer shall not be entitled to any
marketing or promotion by Fandango or otherwise on the
Fandango Site in connection with any Promotion, unless otherwise
set forth in an applicable Order Form.
8.
Fandango License. Fandango grants Customer a nonexclusive, nontransferable, nonsublicensable, worldwide, royaltyfree license to use Fandango’s trademarks and logos (together,
“Fandango Marks”) in the style and manner currently used by
Fandango, and as communicated to Customer, solely in the
marketing and advertising of the Promotion. Customer shall not
make any other use of the Fandango Marks without the prior
written consent of Fandango. Customer shall have no right, title or
interest in or to the Fandango Marks or intellectual property or the
goodwill associated therewith, except for the limited usage rights
expressly provided herein. Upon termination or expiration of the
applicable Order Form, all licenses granted herein shall terminate.
9.
Termination. Specific Promotions shall terminate as of
the date set forth on the applicable Order Form(s). If Customer
wishes to extend a particular Promotion beyond the date specified
on the applicable Order Form, Customer may request an extension
in writing prior to the termination date of such Promotion, but in
no event later than fourteen (14) calendar days after the
termination of such Promotion. Additional fees will apply.
10.
Indemnity. Each of the parties hereby agrees to
indemnify, hold harmless, and defend the other from all claims,
judgments, damages, costs and expenses, including reasonable
attorney's fees and litigation expenses (collectively, “Claims”),
arising out of or as a result of such party's breach of any Order
Form, or these Terms and Conditions. The indemnifying party’s
obligations under this Section shall be subject to the indemnified
party providing the indemnifying party: (a) reasonably prompt
written notice of any such claim or action and permit the
indemnifying party, through its counsel, to answer and defend such
claim or action; and (b) with all reasonably required information,
assistance and authority to assist in defending such claim or action.
The indemnified party, at its own expense, shall have the right to
employ separate counsel and participate in the defense thereof.
11.
WARRANTY DISCLAIMER.
EXCEPT AS
SPECIFICALLY SET FORTH HEREIN, FANDANGO MAKES
NO REPRESENTATIONS OR WARRANTIES WITH RESPECT
TO THE PROMOTIONAL CODES, THE FANDANGO SITE,
ANY PROMOTION, OR TO ANY PRODUCTS OR SERVICES
OF FANDANGO, AND FANDANGO DISCLAIMS ALL
WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE, WITH RESPECT THERETO INCLUDING, BUT
NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT. FANDANGO DOES
NOT WARRANT THAT THE PROMOTIONAL CODES, THE
FANDANGO SITE, ANY PROMOTION, OR ANY SERVICES
OR PRODUCTS OF FANDANGO ARE ERROR FREE, OR
THAT THEY WILL OPERATE WITHOUT INTERRUPTION.
12.
EXCLUSION OF CERTAIN DAMAGES AND
REMEDIES. NEITHER PARTY SHALL BE LIABLE TO THE
OTHER PARTY IN TORT, CONTRACT OR UNDER ANY
OTHER LEGAL THEORY FOR ANY CONSEQUENTIAL,
INDIRECT, INCIDENTAL, PUNITIVE OR SPECIAL LOSS OR
DAMAGES ARISING OUT OF ANY PROMOTION, EVEN IF
APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES. IN
NO EVENT SHALL CUSTOMER’S RECOVERY FROM
FANDANGO FOR ANY CLAIM EXCEED CUSTOMER’S
ADMINISTRATIVE AND OTHER FEES FOR THE
PROMOTION(S) GIVING RISE TO THE CLAIM.
13.
Termination for Breach. If either party materially
breaches any provision of any Order Form, including nonpayment,
and such breach has not been cured within ten (10) days after the
other party has given written notice of such breach, the nonbreaching party may terminate such Order Form at the end of such
ten (10) day period by providing written notice to the breaching
party. If Customer breaches any Order Form in whole or in part,
Fandango may immediately de-activate all Promotional Codes.
14.
Notices. Any notice to be made or given to either party
shall be in writing and effective three (3) days after mailing, or
when delivered personally or by overnight courier, in each case to
the address of such party as set forth on the applicable Order Form.
Either party may change its notice and contact information by
providing notice, in the manner set forth above, to the other party.
15.
Confidentiality. Each party (the “Disclosing Party”)
may provide information that is marked as confidential or that
should be reasonably understood to be confidential (“Confidential
Information”) to the other party (the “Recipient”) in connection
with the Promotion. The Recipient shall not, without prior written
consent of the Disclosing Party, directly or indirectly use for its
benefit or for others, or disclose to any third party, any
Confidential Information of the Disclosing Party. The Recipient
shall exercise due care to prevent unauthorized disclosure and use
of the Disclosing Party’s Confidential Information.
This
confidentiality and nondisclosure obligation shall not apply to
information that (i) was known by the Recipient prior to disclosure
to it by the Disclosing Party or can be proven to have been
developed by the Recipient independently of the disclosure from
the Disclosing Party; (ii) is in the public domain by use and/or
publication at the time of its receipt from the Disclosing Party or
becomes in the public domain other than by reason of the
Recipient’s breach of this provision; or (iii) is disclosed to the
Recipient by a third party with a valid right to disclose such
information and such third party is not under a confidentiality
obligation to the Disclosing Party.
The parties further
acknowledge that these Terms and Conditions shall be deemed
Confidential Information and shall not be disclosed by either party
without the other party’s prior written consent.
16.
Force Majeure. Neither party shall be liable to the other
for failure or delay in the performance of a required obligation
(excluding the payment of any amount due hereunder) if such
failure or delay is caused by fire, flood, natural disaster, electronic
virus, electronic attack or infiltration, internet disturbance,
government act or other cause beyond such party’s control (each, a
“Force Majeure Event”), provided that such party gives prompt
notice of such condition, and uses reasonable efforts to resume its
full performance as soon as possible.
17.
Miscellaneous. Neither party may sublicense, assign,
or otherwise transfer any of its rights in any Order Form, without
the express written consent of the other party except in connection
with an acquisition or merger with a third party, or if all or
substantially all of such party’s assets are acquired by a third party.
All Order Forms shall be governed by the laws of the State of
California, without regard to conflicts of law provisions, and
Customer consents to the exclusive jurisdiction and venue of the
state and federal courts sitting in the State of California, County of
Los Angeles. If suit is brought under any Order Form, the
prevailing party shall be entitled to its reasonable attorney’s fees,
court costs, and expert witness fees. No waiver, amendment or
modification of any provision of any Order Form shall be effective
unless it is in a document that expressly refers to such Order Form
and is signed by both parties. Except as specifically provided
herein, failure or delay by either party in exercising any rights or
remedy under any Order Form shall not operate as a waiver of any
such right or remedy. The parties are separate and independent
legal entities, and the relationship between the parties shall be that
of independent contractors. The parties do not intend to form, nor
shall the relationship between the parties be construed to
constitute, a partnership or joint venture between them. Nothing
contained in any Order Form shall prohibit Fandango or its
affiliates from entering into any promotional, marketing or other
type of agreement for any services or products with any other
party. If any provision of any Order Form shall be held by a court
of competent jurisdiction to be illegal, invalid or unenforceable,
the legality, validity and enforceability of the remaining provisions
shall not be affected or impaired thereby. Each Order Form
constitutes the complete and entire agreement between the parties,
and supersedes and cancels all prior negotiations, understandings,
correspondence and agreements, oral and written, express or
implied, between the parties relating to the subject matter thereof,
and shall be binding only when executed by both parties thereto.
An Order Form may be executed in counterparts, each of which
shall be deemed an original, but all of which taken together shall
constitute but one and the same instrument. An Order Form may
be executed and delivered by facsimile and/or PDF, and the parties
agree that such facsimile and/or PDF execution and delivery shall
have the same force and effect as an original document with
original signatures.
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