1.1 Definitions: In the Agreement, the following terms have the stated meaning:Agreement: Section A (Agreement and Key Details, including the cover page and signature clauses) and Section B (General Terms).Confidential Information: the terms and conditions of the Agreement and any information that is not public knowledge and which is obtained from the other party in the course of, or in connection with, the Agreement. The Supplier’s Confidential Information includes Intellectual Property owned by the Supplier.Fees: the fees set out in the Key Details.Force Majeure: an event that is beyond the reasonable control of a party, excluding an event to the extent that it could have been avoided by a party taking reasonable steps or reasonable care.Intellectual Property Rights: includes copyright and all rights existing anywhere in the world conferred under statute, common law or equity relating to inventions (including patents), registered or unregistered trade marks and designs, circuit layouts, data and databases, confidential information, know-how, and all other rights resulting from intellectual activity. Intellectual Property has a consistent meaning.Key Details: the agreement specific details set out in Section A of the Agreement.
Services: the services set out in the Key Details.1.2 Interpretation: In the Agreement:
a clause and other headings are for ease of reference only and do not affect theinterpretation of the Agreement;b words in the singular include the plural and vice versa; andc a reference to:
i a party to this Agreement includes that party’s permitted assigns; andii including and similar words do not imply any limit.2 OBLIGATIONS
2.1 General: In addition to the other obligations of the Agreement: a the Supplier must provide the Services:i in accordance with the Agreement, including any requirement set out in the Key Details, and all applicable laws;ii exercising reasonable care, skill and diligence; and
iii using suitably skilled, experienced and qualified staff; andb the Client must promptly make decisions (including approvals) and provide the Supplier with all information reasonably required to provide the Services.3 WARRANTIES
3.1 General: In good faith, the client maintains the right to decide if a deliverable aligns with the creative brief provided prior to pre production, however; should a conflict arise, the supplier will provide evidence of alignment. Should the client still maintain a position of failed alignment, the supplier may issue a re-shoot at the supplier’s discretion. The invoice will still be required to be paid in full.4 INTELLECTUAL PROPERTY
4.1 Retained Intellectual Property: The following Intellectual Property (including any modification, enhancement or derivative work of that Intellectual Property) remains the property of the current owner, regardless of its use in the Services:a Intellectual Property that existed prior to the date of the Agreement; and
b Intellectual Property that was developed independently of the Agreement.4.2 Know-how: To the extent not owned by the Supplier, the Client grants the Supplier a royalty- free, transferable, irrevocable and perpetual licence to use for the Supplier’s own business purposes any know- how, techniques, ideas, methodologies, and similar Intellectual Property used by the Supplier in the provision of the Services.4.3 Ownership going forward:a Subject to clauses 4.1 and 4.2, all new Intellectual Property created or developed by the Supplier in providing the Services, is owned by the Client on payment in full of all of the Fees relating to those Services.b If new Intellectual Property described in clause 4.3a incorporates Supplier Intellectual Property or any third party material, the Supplier grants or must obtain for the Client an irrevocable, perpetual, non-transferable and fully paid licence to use that Intellectual Property or third party material within New Zealand for the Client’s internal business purposes.c Unless specified in writing by the client, prior to production, the supplier maintains the right to use, distribute, modify and showcase any content created by the supplier for external promotion and portfolio purposes, however deemed necessary.5 FEES
5.1 Fees:a The Client must pay the Fees to the Supplier for providing the Services.
b All projects will require 50% payment of the total invoice prior to pre production.
5.2 Invoicing:a The Supplier must provide the Client with valid GST tax invoices on the dates set out in the KeyDetails, or if there are none, monthly for Services undertaken in the previous month.
b The Fees exclude GST, which the Client must pay on taxable supplies under the Agreement.
c The Client must pay the Supplier’s invoice:
i within 30 calendar days of the dated invoice; or within the specified time period published on the invoice; and
ii electronically in cleared funds without any set off or deduction.
5.3 Overdue amounts: The Supplier may charge interest on overdue amounts. Interest will be calculated from the due date to the date of payment (both inclusive) at an annual percentage rate equal to the corporate overdraft reference rate (monthly charging cycle) applied by the Supplier’s primary trading bank as at the due date (or if the Supplier’s primary trading bank ceases to quote such a rate, then the rate which in the opinion of the bank is equivalent to that rate in respect of similar overdraft accommodation expressed as a percentage) plus 2% per annum.6 CONFIDENTIALITY
6.1 Security: Each party agrees that, unless it has the prior written consent of the other party, it will:6.2 a keep confidential at all times the Confidential Information of the other party; andb ensure that any personnel or professional advisor to whom a party discloses the other party’s Confidential Information is aware of, and complies with, this clause 6.1.Disclosure required: The obligations of confidentiality in clause 6.1 do not apply to any disclosure:
a for the purpose of performing the Agreement or exercising a party’s rights under the Agreement;
b required by law (including under the rules of any stock exchange);
c of Confidential Information which:i is publicly available through no fault of the recipient of the Confidential Information or its personnel; orii was rightfully received from a third party without restriction and without breach of any obligation of confidentiality; ord by the Supplier if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that the Supplier enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 6.Return of information: Except to the extent that a party has ongoing rights to use Confidential Information, a party must, at the request of the other party following the expiry or termination of the Agreement, promptly return to the other party or destroy all Confidential Information of the other party in the recipient party’s possession or control.7 LIABILITY
Maximum liability: The maximum aggregate liability of the Supplier under or in connection with the Agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must not exceed the Fees paid and/or payable by the Client under the Agreement for Services properly provided in accordance with the Agreement.Unrecoverable loss: Except for the Client’s liability to pay the Fees, neither party is liable to the other under or in connection with the Agreement for any loss of profit, data, savings, business, revenue, and/or goodwill, or any indirect, consequential, incidental or special loss or damage of any kind.Unlimited liability:a Clauses 7.1 and 7.2 do not apply to limit the Supplier’s liability for: i personal injury or death;ii fraud or wilful misconduct; oriii breach of clause 6.b Clause 7.2 does not apply to limit the Client’s liability for those matters stated in clauses 7.3ai to 7.3aiii.7.4 No liability for the other’s failure: Neither party will be responsible, liable, or held to be in breach of the Agreement for any failure to perform its obligations under the Agreement or otherwise, to the extent the failure is directly caused by the other party failing to comply with its obligations under the Agreement, or by the negligence or misconduct of the other party or its personnel.7.5 Mitigation: Each party must take reasonable steps to mitigate any loss or damage, cost or expense it may suffer or incur arising out of anything done or not done by the other party under or in connection with the Agreement.8 TERM AND TERMINATION
8.1 Duration: Unless terminated under this clause 8, the Agreement starts and ends on the dates set out inthe Key Details.
8.2 No fault termination: Either party may terminate the Agreement on no less than one month’s priornotice to the other party.]8.3 Termination rights: Either party may, by notice to the other party, immediately terminate theAgreement if the other party:
a breaches any material provision of the Agreement and the breach is not:i remedied within 10 days of the receipt of the notice from the first party requiring it to remedy the breach; orii capable of being remedied;b has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of external administration, or ceases to continue business for any reason; orc is unable to perform a material obligation under the Agreement for 30 days or more due to Force Majeure.8.4 Consequences of expiry or termination:
a Expiry or termination of the Agreement does not affect each party’s rights and obligations accrued beforethe expiry or termination date.
b The Client must pay for Services provided before the expiry or termination date.8.5 Obligations continuing: Clauses which, by their nature are intended to survive expiry or termination, including clauses 6, 7 and 8, continue in force.9 DISPUTES
9.1 Good faith negotiations: Before taking any court action, a party must use best efforts to resolve anydispute under, or in connection with, the Agreement through good faith negotiations.9.2 Obligations continue: Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.9.3 Right to seek relief: This clause 9 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.10 GENERAL PROVISIONS
10.1 Force Majeure: Neither party is liable to the other for any failure to perform its obligations under theAgreement to the extent caused by Force Majeure, provided that the affected party:a immediately notifies the other party and provides full information about the Force Majeure;b uses best endeavours to overcome the Force Majeure; andc continues to perform its obligations as far as practicable.10.2 Waiver: To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.10.3 Independent contractor: The Supplier is an independent contractor of the Client. No other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.10.4 Notices: A notice given by a party under the Agreement must be delivered via email to an email address notified by the other party for this purpose.If the notice is given under clause 8, a copy of that email must be immediately delivered (by hand or courier) to the Chief Executive or equivalent officer of the other party at the other party’s last known physical address.10.5 Severability: Any illegality, unenforceability or invalidity of a provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement.10.6 Variation: Any variation to the Agreement must be in writing and signed by both parties.10.7 Entire Agreement: The Agreement sets out everything agreed by the parties relating to the Services and supersedes and cancels anything discussed, exchanged or agreed prior to the Agreement’s start. The parties have not relied on any representation, warranty or agreement relating to the subject matter of this Agreement that is not expressly set out in this Agreement, and no such representation, warranty or agreement has any effect from the Agreement’s start. Without limiting the previous sentence, the parties agree to contract out of sections 9, 12A, and13 of the Fair Trading Act 1986, and it is fair and reasonable that the parties are bound by this clause 10.7.10.8 Subcontracting and assignment: The supplier may assign, subcontract or transfer any right or obligation under the Agreement to their network of subcontractors. The first party remains liable for its obligations under the Agreement despite any approved assignment, subcontracting, or transfer.10.9 Law: The Agreement is governed by, and must be interpreted in accordance with, the laws of New Zealand. Each party submits to the non-exclusive jurisdiction of the Courts of New Zealand in relation to any dispute connected with the Agreement.10.10 Counterparts: The Agreement may be signed in counterparts, each of which constitutes an original and all of which constitute the same agreement. A party may enter the Agreement by signing and sending (including by email) a counterpart copy to the other party.11 PROJECT PARTICULARS
11.1 AMENDS: Across all projects, unless specified in the original quote, the client is entitled to a maximum of 3 rounds of amends or changes per project.b Additional amends can be requested, however they will incur an additional cost, determined by the supplier at the time of request.c The client can specify, before the quote is dispatched, that additional amends may be required, which will be incorporated into the quote.11.2 PROJECT SPECIFICS: Detailed elements of the project must be explicitly outlined by the client prior to pre production. Should the client fail to supply information regarding project specifics, The supplier will attempt to interpret with no liability to the supplier, should the specifics not align with the deliverables or brief.b Project specifics may include, but not limited to; product packaging, talent wardrobe, environmental elements, weather conditions, talent demographic, talent age, props, production equipment, production formats, delivery methods; etc…11.3 COVID-19: The supplier is required to follow all conditions of the COVID-19 alert level restrictions and cannot be requested to operate against the given alert level at any time. If alert level restrictions interfere with a projects timeline, the client will be advised an alternative timeline by the supplier.b The supplier will exhibit the necessary COVID-19 precautions on set, as to which the client and any additional cast, talent or crew must follow. Failure to follow the precautions set out by the supplier could result in a termination of project or a member of the cast/crew asked to leave the set.11.4 FILE MANAGEMENT: The supplier will maintain archive data for up to 1 year following project completion. Should the client require a longer archive period, it must be requested prior to the issuing of the quote as this service will incur additional costs.b The supplier reserves the right to hold all raw files. Should the client require a copy of the raw files, it must be requested prior to the issuing of the quote as this service will incur additional costs.