Qube WireTAP: Terms of Service

Effective: 27 April 2022
Our Terms of Service were last updated on 27 April 2022.

1. Context

• 1.1. This Terms of Service document (the “ToS”) provides the terms and conditions applicable for the supply/deployment, operation and maintenance of QCI’s theatre appliance Qube WireTAP (the “WireTAP”) and provision of Services (as defined below) to Exhibitor.

• 1.2. The defined terms used in this ToS shall have their respective meaning as stated below- 
  
  

  “Applicable Laws”	shall mean all applicable laws, regulations, government and regulatory approved codes of practice, as amended from time to time, and any orders, judgments or directions that have general or specific application to a Party and which relate to or affect this ToS.
  “Confidential Information”	shall mean all information that is specifically classified as confidential or such information received from other individuals and entities that either Party is obligated to treat as confidential or which by the nature of its disclosure shall be deemed to be confidential including without limitation products or services, marketing data, fee schedules, information technology systems, financial information, information relating to personnel, business, Intellectual Property Rights but does not include any information which is in public domain or which is required to be disclosed by virtue of law or any instrument that has the force of law. In this regard, the Party disclosing the Confidential Information shall be referred to as “Disclosing Party” and the Party to whom such Confidential Information is disclosed shall be referred to as “Receiving Party”.
  “DCP”	shall refer to the Digital Cinema Package, which is a collection of digital files used to store and convey digital cinema audio, image, and auxiliary data streams, encoded and encrypted as per the specifications provided by the Digital Cinema Initiatives, LLC (DCI) (i.e., as per Version 1.2 of the Digital Cinema System Specification) or in other interoperable formats in common use within the motion picture industry
  “Exhibitor”	shall refer to any Person having legal rights over the operation of the Theatre to whom Qube shall provide the Services. The term Exhibitor shall mean and include the Exhibitor and its employees, officers, representatives, assigns.
  “Intellectual Property Rights”	shall refer to patents, inventions or utility model rights, copyrights, databases, database rights, design rights, trade or service marks (whether registered or unregistered), designs, geographical indications, information, systems, software, programs, processes, technology, services, methodologies, products, trade secrets, knowhow, designs, formulae, processes, techniques, algorithms, information, ideas, software, object codes, source codes, computer programs, interfaces and/or other copyrightable subject matter and any other material or rights, tangible or intangible and any other rights of a similar nature and any application for any of the aforementioned and all other allied, ancillary and subsidiary rights in any and all media, whether now known or subsequently invented, and all other intellectual property as is commonly understood and recognized as such by Applicable Law (past, current or future), industry usage or otherwise.
  “KDM”	shall mean the Key Delivery Message as defined in the DCI specification for transporting content decryption keys, each KDM being targeted to a specific digital cinema media block.
  “Party”	shall individually mean Qube or Exhibitor and collectively be referred to as “Parties”.
  “Person”	shall mean any natural person, proprietorship, partnership, company, corporation, limited liability corporation, organization, firm, business, joint venture, association, trust or other entity having legal existence under the Applicable Laws.
  “QCI”/ “Qube”	shall mean Qube Cinema Incorporation. Any reference to term Qube/QCI shall mean Qube and include its affiliates, business partners/associates.
  “Qube Wire”	shall mean and include, without limitation, the Qube Wire technology platform for providing the Services and the online portal qubewire.com and all of its sub-domains, aliases and dependencies.
  “Services”	shall mean the services rendered by Qube (either directly or through its business partners), which includes supply/deployment, operation and maintenance of WireTAP and includes provision of any and all the services by Qube through the Qube Wire technology platform, including, without limitation, generation and delivery of KDM; DCP storage, transfer, management and delivery; movie management; theatre information and device information gathering and management; and other related services.
  “Theatres”	shall refer to movie theatres and other auditoria operated by or owned by the Exhibitor, and equipped with compatible digital cinema equipment conforming to the DCI specification or to such specifications as may be determined by Qube from time to time, for the provision of the Services.
  “WireTAP”	shall refer to the in-theatre system hardware and software designed and developed by QCI/its licensors for the delivery of the Services.

2. Acknowledgement & Acceptance of Terms

• 2.1. Exhibitor’s submission of request for WireTAP in https://www.qubewire.com/wiretap shall constitute its acceptance to the ToS, basis which Qube may supply, subject to acceptance of commercial terms with the Exhibitor, such number of WireTAPs along with the necessary accessories and peripherals and render the Services in accordance with the ToS. This ToS shall become a binding agreement between the Parties upon Qube’s acceptance of the Exhibitor’s request for WireTAP. 
  
  
• 2.2. Parties acknowledge that this ToS together with any supplementary agreement, addendum, annexures, schedule, mutually agreed between the Parties shall constitute the entire agreement governing the provision of WireTAP and Services to the Exhibitor.  

• 2.3. Exhibitor acknowledges that – (a) this ToS shall be a valid, legally binding agreement, even though it is electronic and is not physically signed by the Exhibitor; (b) this ToS governs the rights and obligations of the Exhibitor. In case of disagreement to any part of the ToS, Exhibitor may not use the Services and non-acceptance to the ToS shall be communicated to Qube prior to the installation of the WireTAP and not thereafter.

• 2.4. Exhibitor represents and warrants that – (a) it validly exists/is legally qualified Person; (b) is competent to enter into the ToS and undertake the obligations stated herein; (c) entering into the ToS and delivery of its promises/undertakings does not violate Applicable Law; (d) the information (including details provided at the time of registration for WireTAP) provided by Exhibitor to Qube in connection to the Services is true, accurate, complete and current information and it has the right to share such information to Qube and (e) the representative of Exhibitor coordinating with Qube for the WireTAP is authorised to represent the Exhibitor and any actions of such representative shall be binding on the Exhibitor. 

• 2.5. Exhibitor acknowledges that Qube may, at its sole discretion change/update/replace this ToS from time to time. In case of change to the ToS, Qube will provide the Exhibitor with reasonable notice prior to the changes becoming effective either by emailing to the email address provided by the Exhibitor or by posting a notice on the Site. Exhibitor can review the most current version of the ToS at any time by visiting this page. The revised terms and conditions will become effective on the date set forth in Qube notice, and usage of the Service thereafter, will constitute acceptance of the revised terms and conditions by the Exhibitor. If any change to this ToS is not acceptable to the Exhibitor, it may terminate the Services in accordance with this ToS.

3. Use of Services
   

• 3.1. Qube shall, subject to the commercial arrangement being mutually agreed, supply one or more WireTAP as per mutual agreement along with any required accessories and peripherals. The Exhibitor shall have the WireTAPs installed in its Theatres.
  
  
• 3.2. During the Term, the Exhibitor may request for additional WireTAP and Qube shall provide the same subject to mutually agreed terms.

• 3.3. All costs associated with the shipping of the WireTAP shall be borne by Qube. However, any payment of local taxes, import duties or similar costs under the Applicable Laws for the clearance and the installation of the WireTAP at the Exhibitor’s premises shall be borne by the Exhibitor.

• 3.4. The Exhibitor acknowledges that the ownership of the WireTAP, at all times, shall absolutely vest with Qube. The Exhibitor undertakes that it shall not create any third party rights in the WireTAP or any part thereof in favour of any person/entity or transfer or create any encumbrance in any manner including by way of alienating, disposing of, selling, assigning, creating charge, pledging, mortgaging, lending or part with the possession of or otherwise deal with the WireTAP in any manner other than for the purposes permitted under this ToS without Qube’s prior written approval. Any breach of the undertaking provided herein under this Section 3.4 shall constitute a material breach by the Exhibitor and Qube shall be entitled to claim damages for any loss incurred to it.

4. Commercials 

• 4.1. Parties shall separately agree on the commercial understanding for the provision of the Services. Such agreement to the commercial understanding may be either in the form of an addendum to this ToS or be agreed to by Parties through email correspondences (referred to as “Commercial Addendum”). Such Commercial Addendum shall be considered to form an integral part of this ToS and shall be read in conjunction with the ToS.
  
  
• 4.2. Exhibitor acknowledges that in connection to the Services provided under this ToS, Qube may be entitled to fees from third parties. Qube shall have the right to retain such amounts received by Qube and Exhibitor acknowledges that it shall not have any right to claim any amounts from Qube unless explicitly agreed under the Commercial Addendum.

• 4.3. All payments or credits by one Party to the other under this ToS shall be subject to deduction of tax under Applicable Laws. Further, in the event Qube shall be required to withhold any amount as withholding tax as per the Applicable Laws, Qube shall withhold such amounts from the amounts payable to the Exhibitor under this ToS and shall provide the Exhibitor with appropriate certificates and documents to enable the Exhibitor to claim credit of such amounts of tax withheld. For this purpose, the Exhibitor shall provide such forms and documents as may be required by Qube under the Applicable Laws from time to time.

• 4.4. Qube shall have the right of set off any payments due to it from the Exhibitor from the payments due to the Exhibitor from Qube.

5. Obligations of Exhibitor

• 5.1. Connectivity: Exhibitor shall be responsible to provide internet connectivity for the operation of the WireTAP, as specified by Qube from time to time. It shall keep the WireTAP at its premises powered on at all times and connected to the internet to enable Qube to, among other things, provide Services and remotely manage such devices at all times 
  
  
• 5.2. Integration: Exhibitor shall ensure that each Theatre is networked using Gigabit Ethernet and that the WireTAP is connected to and has access to the digital cinema systems in all screens. The Exhibitor shall perform all actions as may be necessary in this regard.

• 5.3. Information: The Exhibitor shall, immediately upon installation of the WireTAP, register and create an account in Qube Wire platform and shall provide to Qube such information as may be requested by Qube from time to time in connection to the provision of Services.

• 5.4. Maintenance of WireTAP: Exhibitor shall be responsible for ensuring security, safety and protection of the WireTAP and shall make good any losses arising as a result of its failure to do so. For this purpose, the Exhibitor shall ensure that the WireTAP are well maintained in a clean, leak-proof, air-conditioned environment and are operated only by authorised employees trained by the Exhibitor. In case the WireTAP is damaged or lost because of any omission /commission by the Exhibitor, in addition to any other remedy that Qube may have under this ToS, the Exhibitor shall be liable to make good to Qube, the cost of the WireTAP.

• 5.5. The Exhibitor shall ensure that its employees do not open, tamper with or move, remove or dismantle the WireTAP except as authorised by Qube. The Exhibitor shall not reverse engineer any part or aspect of the WireTAP.

• 5.6. The Exhibitor acknowledges that the delivery of Services may be subject to the necessary authorizations from third parties (including content rights holders) and the Exhibitor shall provide all necessary cooperation and assistance as may be required to enable Qube to deliver its Services. Exhibitor acknowledges and agrees that, Qube has not provided, any guarantee, direct or implied, regarding availability or continued availability of Services to the Theatres.

• 5.7. The Exhibitor affirms that it shall not copy, transfer, or otherwise extract in any manner, any DCP for any purpose other than for the legitimate playback of such DCPs in the Theatres. Further, any attempt to transfer DCPs for any other purpose shall be construed as a material breach.

• 5.8. The Exhibitor shall comply with the processes, procedures and other work flow instructions in connection with the operation of WireTAP as provided by Qube from time to time.

6. Intellectual Property

• 6.1. Except for the limited rights granted by Qube under this ToS, all rights, title, and interest in and to WireTAP and the underlying technology, and all trademarks, service marks, patents, copyrights, trade secrets, and other Intellectual Property Rights in and to WireTAP shall remain the exclusive property of Qube and its licensors. Exhibitor shall not take any actions that jeopardize Qube’s or its licensors’ proprietary rights.
  
  
• 6.2. Each Party shall retain all rights, title and interest in and to its Intellectual Property Rights, and nothing shall or shall be construed to restrict, impair, transfer, license, convey or otherwise alter or deprive either Party of any of its rights or proprietary interests therein.

• 6.3. Neither Party may use the other Party’s Intellectual Property Rights for any purpose other than for the purposes as set out under this ToS or specifically authorised to do so.

• 6.4. The Exhibitor shall not use the trademark, logo or other Intellectual Property Rights of Qube in any of its promotions. However, if agreed by Qube in writing, it shall be permitted to use the specific logo designed by Qube in its promotion materials.

7. Confidentiality

• 7.1. The Receiving Party will: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this ToS, (iii) not disclose Confidential Information of the Disclosing Party to any third party (except for the purposes authorised under this ToS and subject to the confidentiality obligations), and (iv) limit access to Confidential Information of the Disclosing Party to those of its and its affiliates' employees, contractors and agents who need such access for purposes consistent with this ToS and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
  
  
• 7.2. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process; provided, however, that (i) the Receiving Party will provide the Disclosing Party with prompt notice of any request that it disclose Confidential Information, sufficient to allow the Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, the Receiving Party will disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate; (ii) the Receiving Party will refer the request to the Disclosing Party and will provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s cost, in opposing such disclosure or seeking a protective order, unless the Receiving Party is explicitly prohibited from doing so by law or court order; and (iii) in no event will the Receiving Party disclose Confidential Information to a party other than a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure.

8. Term & Termination

• 8.1. Term: This ToS shall come into force immediately upon acceptance of the ToS by the Exhibitor and shall remain in force until terminated in accordance with the ToS (“Term”).
  
  
• 8.2. Termination: This ToS may be terminated by either party in accordance with this Section - (“Termination”). 

• (a) Termination for convenience: Parties may decide to mutually terminate this ToS by providing ninety (90) days prior notice in writing for no cause at any point of time.
  
  
• (b) Termination for Default: Either Party may terminate this ToS in the event of a material breach committed by the other Party (“Defaulting Party”), in addition to any other remedies available under this ToS or under the Applicable Laws, by providing a notice in writing to the Defaulting Party in accordance with Section 8.2 (c). Such notice shall, where the breach is capable of being cured, be effective upon the expiry of thirty (30) days from the receipt of such notice if the breach has not been cured by then and in all other cases, be effective forthwith upon receipt.
  
  
• (c) Termination for Cause: Either Party may terminate this ToS for any of the reason as specified hereunder on providing notice in writing fifteen (15) days prior to the date of Termination, unless provided otherwise.
  
  
• (i) Any breach of the obligations of the Parties agreed to be complied under this ToS;
  
  
• (ii) Insolvency of either Party;
  
  
• (iii) On the winding up of either Party;
  
  
• (iv) Assignment of the Exhibitor’s rights and obligations hereunder to a third party by operation of law.
  
  
• (v) Any violation or alleged violation of Applicable Law by either Party related to the ToS.

• 8.3 Effect of Termination:

• (a) Within thirty (30) days of Termination, the Exhibitor will return the WireTAP to Qube in good working condition subject to normal wear and tear and shall dispose of all the Confidential Information in such manner as directed by Qube.
  
  
• (b) Any amounts payable by a Party which has accrued prior to the Termination shall be paid to the other Party subject to any adjustment/deductions.
  
  
• (c) In the event of Termination due to Default of the Exhibitor, any security deposit paid shall be forfeited, in addition to any other remedy available under the Applicable Laws or hereunder this ToS.
  
  
• (d) Any expiry or Termination shall not affect the rights or obligations which have accrued or become due between the Parties before Termination. 

9. Indemnification

• 9.1 Exhibitor will indemnify, defend and hold Qube and its affiliates harmless, at its expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against Qube (and its officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with Qube to the extent that such Action is based upon or arises out of
  
  
• (a) unauthorized or illegal use of the Service;
  
  
• (b) unauthorized use of Confidential Information;
  
  
• (c) Noncompliance with or breach of this ToS (including unauthorized use of the DCP).

• 9.2 Qube will notify the Exhibitor in writing within thirty (30) days of Qube becoming aware of any such claim; give the Exhibitor sole control of the defense or settlement of such a claim; and provide Exhibitor (at the expense of the Exhibitor) with any and all information and assistance reasonably requested by the Exhibitor to handle the defense or settlement of the claim. Exhibitor will not accept any settlement that (i) imposes an obligation on Qube; (ii) requires Qube to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on Qube, without Qube’s prior written consent.

10. Disclaimers of Warranties 

• 10.1 The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Qube’s reasonable control, but Qube shall use reasonable efforts to provide advance notice of any material scheduled service disruption.
  
  
• 10.2 The Service and all related components and information are provided on an “AS IS” and “AS AVAILABLE” basis without any warranties of any kind, and Qube expressly disclaims any and all warranties, whether express or implied, including, but not limited to, the implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. Qube shall have no obligation to indemnify or defend Exhibitor against any claims related to infringement of Intellectual Property Rights. Exhibitor acknowledge that Qube does not warrant that the Service will be uninterrupted, timely, secure, error-free or virus-free, nor does it make any warranty as to the results that may be obtained from use of the Services.

• 10.3 Under no circumstances shall Qube be liable for any damages that result from the use of or inability to use the Service, including but not limited to reliance by a user on any information or content obtained from Qube. 

11. Liability

• 11.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL QUBE BE LIABLE TO EXHIBITOR OR ANY THIRD PARTY, IN EACH CASE FOR CLAIMS ARISING UNDER OR AS A RESULT OF THE SERVICES OR THIS TOS, FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, OR (B) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES ACTUALLY PAID BY THE EXHIBITOR IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR, IF NO FEES APPLY, FIVE HUNDRED ($500) U.S. DOLLARS, OR (C) ANY MATTER BEYOND QUBE’S REASONABLE CONTROL. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS. 
  
  
• 11.2 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to Exhibitor. In these jurisdictions, Qube’s liability will be limited to the greatest extent permitted by Applicable Law.

12. Insurance

• Without limiting the indemnification provisions of this ToS, Exhibitor shall obtain, during the Term and maintain in force the necessary insurance coverage at its own cost and expense. Insurance shall include, but not necessarily be limited to (a) broad form commercial general liability, (b) professional liability/errors and omissions, (c) worker’s compensation & employers liability. Qube reserves the right to require complete, certified copies of all relevant insurance policies, at any time from the Exhibitor.

13. Governing Law, Jurisdiction and Dispute Resolution
    

• 13.1 This ToS and all questions pertaining to the validity, interpretation, enforcement and performance thereof shall be governed by the laws of State of California, USA and shall be subject to the jurisdiction of the appropriate courts/tribunals of the State of California, USA.

• 13.2 Dispute Resolution: All disputes, actions, claims or controversies (collectively referred to as “Disputes”) arising out of and resulting from this ToS executed hereunder shall, if not settled by the mutual agreement between the Parties, be referred to arbitration. The arbitral bench shall be constituted by three persons, both Parties selecting one arbitrator each who shall, further, choose the third arbitrator. The arbitration proceedings shall be conducted in the English language within the territorial limits of the State of California, USA. The arbitral proceedings shall be governed by the American Arbitration Association Rules. The arbitrator award shall be final and binding between the Parties.

14. General Terms

• 14.1 Successors & Assigns: This ToS is solely for the benefit of the Parties and not for the benefit of any third party, except that it is binding upon the Parties and their respective successors and assigns.

• 14.2 Amendment: No addition, subtraction, modification and any amendment to this ToS shall be valid unless mutually agreed to by the Parties in writing.

• 14.3 Survival: The provisions contained in this ToS which should reasonably be regarded as surviving Termination shall continue in force after Termination.

• 14.4 Waiver: Unless expressly specified, the mere non- enforcement of any of its rights or the other Party’s obligations under this ToS shall not be construed to be a waiver of its rights and shall not act as an estoppel from enforcing any of the obligations of the other Party.

• 14.5 Severability: In the event any provision of the ToS is deemed or rendered invalid, illegal or unenforceable by virtue of law, judicial/ quasi- judicial/ administrative order or any other instrument having the force of law, the same shall be ineffective solely to the extent of the affected provision without affecting the validity of the rest of the ToS.

• 14.6 Force Majeure: Neither Party shall be liable to the other for any breach of nor failures of performance under this ToS caused by or resulting from any act of God, act of state, natural or manmade disaster or for reasons beyond the control of the Parties (“Force Majeure”). Any Party asserting Force Majeure as an excuse to performance shall have the burden of proving proximate cause, that reasonable steps were taken to minimize the delay and damages caused by events when known, and that the other Party was timely notified of the likelihood or actual occurrence which is claimed as grounds for a defence under this clause. If one Party is affected by an event of Force Majeure, it will promptly notify the other Party of the occurrence of that event. The Parties hereto agree that in the event of the continuation of a Force Majeure event for a period of more than one (1) month, Qube may terminate this ToS upon written notice to the Exhibitor, and both Parties shall be released from any further future liability under this ToS subject to the fulfilment of the conditions mentioned in the Section 3.

• 14.7 Remedies: The Parties agrees that without prejudice to any other legal rights or remedies they may have, they are entitled to seek injunctive and other equitable relief to prevent or curtail any actual breach by the other of any of the provisions under this ToS.

• 14.8 Relationship: The relationship of the Parties is that of independent contractors in their capacity as principals. Nothing in this ToS shall constitute or be deemed to constitute a partnership, joint venture, agency or any relationship of employer and employee or other similar relationship between the Parties hereto or between any Party and the employees, contractors or agents of any other Party.

• 14.9 Publicity: Exhibitor grant Qube the right to add the Theatre name and logo to Qube customer list and website and can be used by Qube in its promotional materials. Exhibitor can opt-out of this use by writing to Qube to support@qubewire.com.

• 14.10 Assignment: Exhibitor shall not assign any rights or obligations under this ToS without the prior written consent of Qube.

• 14.11 Notices: Except as otherwise set forth herein, all notices under this ToS will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.