1 DEFINITIONS1.1 The following terms shall have the following meanings:
"Business Day" means any day Banks are open for business in Auckland, Wellington and Christchurch, excluding weekends. "Intellectual Property" means all or any of the following which The Production House 'TPH' now or in the future owns or has obtained a licence to use and/or designate for use in its business activities:
(a) each and all of the Trade Marks and Trade Names, signage, decor and colour schemes designed for The Production House 'TPH''s business, logos and brand names and copyright materials, know-how, trade secrets and other intellectual property rights of all kinds belonging to or under licence to The Production House 'TPH' and used in connection with The Production House 'TPH''s business;
(b) copyright held by The Production House 'TPH' in any written material, plans, images, designs, the Resellers Kit, the Software or other work or subject matter relating to The Production House 'TPH''s business;
(c) designs whether or not registered or protected by copyright derived or acquired by The Production House 'TPH' and applied in the operation of The Production House 'TPH''s business;
(d) such other trade or service marks or trade names as may be approved by The Production House 'TPH' from time to time;
(e) the Database and the On-loan Database.
"Resellers Kit" means collectively all manuals, guidelines, schedules, books, publications, memoranda or pamphlets compiled by The Production House 'TPH' in respect of and pertaining to the design, marketing and sale of The Production House 'TPH' created product and/or services and the operation of the Software together with any and all amendments and variations to them and supplementary material from time to time advised or provided by The Production House 'TPH'. "Trade Marks" means the trade marks and trade names which The Production House 'TPH' may from time to time own or be licensed to use and designate for use in The Production House 'TPH''s business and such other trade marks as may be specified in writing by The Production House 'TPH' from time to time.
2 TERM2.1 This agreement shall commence forthwith and shall remain in existence until terminated.
3 RESELLER’S OBLIGATIONS3.1 The Reseller agrees with The Production House 'TPH' as follows:
(a) Diligence - To work diligently to perform the tasks required of it to complete the performance of the Services to the best of its knowledge and experience and using reasonable diligence and care.
The The Production House 'TPH' and the Reseller agrees to complete all tasks required of it under this Agreement in a manner that is consistent with good work and industry standards.
(b) Good faith - In all matters to act loyally and faithfully toward each other.
(c) Compliance (i) To comply with The Production House 'TPH''s instructions regarding the use of the Intellectual Property, its Trademarks and other intellectual property rights. (ii) Warrants to conduct its business in relation to the performance of the Services in an orderly, professional and businesslike manner and in compliance with all laws and regulations applicable and not breach any intellectual property rights of a third party.
(iii) The Reseller acknowledges that it may have possession of the Resellers Kit on loan during the Term hereof and use it to assist in the performance of the services and for no other purpose. The Reseller shall keep the Resellers Kit in its exclusive possession and shall not reproduce any part thereof whether for the Reseller's own use or otherwise and will not disclose the contents thereof to any person other than its staff and then only to the extent that it is necessary for the satisfactory performance of the services.
(d) Secrecy - Not at any time during or after the Term to divulge or allow to be divulged to any person any confidential information relating to the business affairs of The Production House 'TPH'.
The provisions of this sub-clause shall survive the expiry or termination of this agreement. (e) Quality and storage - To store any product delivered to the Reseller in a proper manner and/or as notified by The Production House 'TPH' and to deal with the product in a manner which will ensure all sold items reach a customer in perfect condition.
(f) Prompt payment - To pay promptly in full and without deduction or set-off any sum payable by the Reseller to The Production House 'TPH' under the terms of this agreement or otherwise.
(g) Indemnity - To indemnify and keep indemnified The Production House 'TPH' from and against any and all costs, losses, demands, damages or liability (whether criminal or civil) incurred by The Production House 'TPH' resulting from a breach of this agreement by the Reseller or from any act, neglect or default of the Reseller and its agents, employees, licensees or customers.
(h) Act as principal - In all correspondence and other dealings relating directly or indirectly to the Reseller, to clearly indicate that it is acting as principal and not to describe itself as an agent, employee, partner or representative of The Production House 'TPH' except as expressly authorised by this agreement.
(i) No pledge of credit - Not to pledge the credit of The Production House 'TPH' in any way.
(j) Protection of Intellectual Property
(i) Not to cause or permit anything which may damage or endanger the Intellectual Property of The Production House 'TPH' or The Production House 'TPH''s title to its Intellectual Property or assist or allow others to do so.
(ii) To notify The Production House 'TPH' of any suspected infringement of The Production House 'TPH''s Intellectual Property, and to take such reasonable action as The Production House 'TPH' may direct in relation to such infringement.
(iii) To affix such notices as The Production House 'TPH' may direct to the products or the packaging or advertising associated with them.
(iv) To cease to use the Intellectual Property immediately upon the expiry or termination of this agreement.
(v) Not to use the Intellectual Property otherwise than as permitted by this agreement.
(vi) Not to use The Production House 'TPH''s Intellectual Property rights except in connection with the performance of the Services in accordance with this agreement.
(k) Restraint on Employment – The Reseller covenants that it shall not for the period of 2 (two) years following the expiration or termination of this agreement:
(i) employ any employees or former employees who were employed by The Production House 'TPH' or any representative of The Production House 'TPH' without prior written consent; Further the Reseller shall not at any time disparage or do anything calculated to damage The Production House 'TPH''s or any of its other Reseller's goodwill or reputation or The Production House 'TPH''s intellectual property. The provisions of this clause shall survive the expiry or termination of this agreement.
(l) Conduct of Business – The Production House 'TPH' and the Reseller shall:
(i) maintain the services to the highest possible standard;
(ii) only use the form of contract as either specified or approved by The Production House 'TPH' in terms of the transactions the Reseller concludes with its customers in respect of any services.
4 INSPECTION4.1 Inspection – The Reseller shall permit The Production House 'TPH' through its duly authorised representatives and agents to inspect the Reseller's business operations, premises and equipment at regular intervals to ensure that the provisions of this agreement are being observed and complied with.
5 TERMINATION5.1 This agreement shall terminate:
(a) Time – Either party may give the other party one month's notice of termination of this Agreement.
(b) Insolvency – If the Reseller goes into liquidation, either compulsory or voluntary or if a receiver is appointed in respect of the whole or any part of its assets or if the Reseller makes an assignment for the benefit of or composition with its creditors generally or threatens to do any of these things or any judgment is made against the Reseller or any similar occurrence under any jurisdiction affects the Reseller.
(c) Default - If in the opinion of The Production House 'TPH' the Reseller:
(i) Is in breach of a material term of this agreement which in the reasonable opinion of The Production House 'TPH' is not capable of being remedied, immediately upon notice from The Production House 'TPH'; or (ii) otherwise fails to remedy any breach or default of any provision of this agreement within fifteen (15) days of receiving notice of the breach or default from The Production House 'TPH'.
6 TERMINATION CONSEQUENCES6.1 Procedure - Upon termination of this agreement for any reason, all rights of the Reseller granted by this agreement shall terminate. In such event the Reseller shall:
(a) return to The Production House 'TPH' the Resellers Kit;
(b) cease carrying on any conduct in connection with the Services unless otherwise agreed by The Production House 'TPH';
(c) make immediate payment of all amounts payable to The Production House 'TPH'.
7 DISPUTE RESOLUTION7.1 No party to this agreement shall commence any court proceedings relating to any dispute arising out of this agreement (including any dispute as to the validity, breach or termination of this agreement or as to any claim in tort, in equity or pursuant to any statute) unless that party has complied with the following paragraphs of this clause.
7.2 Any party who claims that a dispute has arisen under or in relation to this agreement must give written notice to every other party specifying the nature of the dispute.
7.3 On receipt of such notice by the other party, the parties to this agreement:
(a) Must co-operate and use their best endeavours to resolve the dispute expeditiously; and
(b) Must, if they do not within fourteen days of the receipt of the notice (or such further period as they may agree in writing) resolve the dispute, refer the dispute to the Disputes Tribunal.
7.4 A party who seeks urgent interlocutory relief may, by written notice to each other party to the dispute, elect not to comply with the provisions of clauses 9.1 to 9.3, but only to the extent of the relief sought and for the period required to dispose of the application for such interlocutory relief. Except to that extent, on the disposal of the application the provisions of clauses 9.1 to 9.3 inclusive shall once again take effect.
8 MISCELLANEOUS8.1 Severance - In the event that any provision of this agreement is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable, the remaining provisions of this agreement shall remain in full force and effect unless The Production House 'TPH' in its discretion decides that the effect of such declaration is to defeat the original intention of the parties in which event The Production House 'TPH' shall be entitled to terminate this agreement by written notice to the Reseller.
8.2 Entire agreement - This agreement contains the whole agreement between the parties and supersedes all prior agreements whether written or oral between the parties. The Reseller acknowledges that it has not relied upon any oral or written representations made to it by The Production House 'TPH' or its employees or agents and has made its own independent investigations into all matters relevant to the Products and the entry into this agreement.
8.3 Discretion - No decision, exercise of discretion, judgement or opinion or approval of any matter mentioned in this agreement or arising from it shall be deemed to have been made by The Production House 'TPH' except if in writing.
8.4 Notices - All notices or other communications shall be deemed to have been duly given or made;
(a) In the case of communication by email, when acknowledgement of receipt by the recipient is given;
(b) In the case of a communication by facsimile, when sent with confirmation of complete transmission. In the case of notice by facsimile the facsimile communication shall immediately be followed by posting or delivery of an original notice as set out below.
(c) In case of a communication by letter on the seventh day after being posted by mail, correctly addressed and stamped; and (d) If given by hand, on personal delivery to the recipient.
8.5 The Production House 'TPH''s right to assign - This agreement and all rights under it may be assigned or transferred by The Production House 'TPH'.
8.6 Rights cumulative - All rights granted to either of the parties shall be cumulative and no exercise by either of the parties of any right under this agreement shall restrict or prejudice the exercise of any other right granted or otherwise available to it.
8.7 Waiver - The failure by The Production House 'TPH' to enforce at any time or for any period any one or more of the terms or conditions of this agreement shall not be a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this agreement.
8.8 Governing law – This agreement shall be governed by and interpreted in accordance with the laws of New Zealand and the parties submit to the exclusive jurisdiction of the New Zealand Courts.