Level 2

119 Ghuznee Street
P O Box 9744

Wellington 6141

New Zealand

[NZ On Air request email]

www.nzonair.govt.nz

Tel: 04 382 9524
Fax: 04 382 9546

16 November 2020

Daymond David Goulder-Horobin
By email: [FYI request #14006 email]

Tēnā koe Daymond

Official Information request and response

Thank you for your request under the Official Information Act (“OIA”) dated 20 October 2020

You have requested:
1. Al  material submitted and correspondence to NZ On Air regarding the funding of Circuit 2 for
Stuff as shown at https://www.nzonair.govt.nz/search/?search_type=decisions&q=stuff+circuit

2. The terms of the contract signed and enforced under section 43 of the Broadcasting Act 1989 of
the Circuit 2 funding to Stuff

3. Information pertaining to the requirements of factual content and whether there are quality
control measures in place to ensure content produced under the category "factual" content is
indeed, factual.

This project is still in production, and not due to be completed and delivered until the end of December
2020. As such under section 9(2)(b) of the OIA we are withholding the proposal and planning documents
provided for this project, as they are still considered commercially sensitive information. Once this
project has been fully broadcast/released we wil  be happy to reconsider your request and may be in a
position to release some of the information we have redacted or withheld.  Please contact us again at
that time with a new request.

I have attached the requested information that we are able to release:
•  Application form that accompanied the proposal pg. 1-4
•  A copy of the funding agreement pg. 5 - 22

You will find we have redacted information for the following reasons, as outlined in the Official
Information Act:
•  section 9(2)(a) of the OIA to protect the privacy of natural persons
•  section 9(2)(b) of the OIA to protect information where the making available of the information—
o  (i) would disclose a trade secret; or
o  (ii) would be likely unreasonably to prejudice the commercial position of the person who
supplied or who is the subject of the information.
Connecting and reflecting our nation

Regarding your question about content funded from our factual stream. In contestable content we have
two streams – Scripted and Factual. Scripted applies to drama and scripted comedy. Factual can cover
everything from coverage of live events, to documentaries, current affairs and live unscripted comedy.
It’s a very broad church. This content was funded though the Factual funding stream as it neither drama
nor scripted comedy.

It is outside NZ On Air’s mandate to engage in editorial decisions or to give direction to any person that is
provided funding. In accordance with our remit in the Broadcasting Act 1989, we do not take an editorial
stance on contents. However, you will note that al  content must adhere to the standards as set out in
the Broadcasting Act, and which we also refer to in our funding agreement on pages 6, 7 & 10

For your information, funding provided by NZ On Air for all successful projects is searchable on our
website. You can also sign up to receive our bi-monthly industry newsletter via our website.

You have the right to refer this response to the Ombudsman if you are dissatisfied with it. More
information on how to do this is here. NZ On Air proactively releases information in accordance with the
Government’s commitment to the Open Government Partnership National Action Plan.  This includes
publishing responses to requests for information under the OIA. Please note that this response (with your
name removed) wil  be published on the NZ On Air website shortly and will remain on our website for 12
months.

Thank you for your interest in our work.

Yours sincerely

Clare Helm
HEAD OF CORPORATE SERVICES

Connecting and reflecting our nation

SCHEDULE 2
GENERAL TERMS

1
Definitions and Interpretation
(f)  Distribution Platform means the distribution platforms
1.1
described in the “Distribution” section of Schedule 1.

In this Agreement, unless the context requires otherwise:
There:
(a)  Agreement means this Funding Agreement and al  its
Schedules.
(i)  is one “Primary Distribution Platform”; and
(b)
(i )  may be one or more “Additional Distribution
  Business Day means any day other than:
Platforms”.
(i)  a Saturday, a Sunday or a public holiday (as
defined in the Holidays Act 2003) in Wel ington or
(g)  Distribution Rights means the right to sel  or license or
Auckland; and
otherwise exploit, and to authorise the sale licensing or
exploitation of any Content.
(i )  the period between 26 December in any year and
5 January the next.
(h)  Force Majeure means:
(c)
(i)  act of God, fire, earthquake, storm, flood, or
  Content means the content described in the “Content”
section of Schedule 1, including:
landslide;
(i)
(i )   explosion or nuclear accident;
  the “Main Content”;
(i )
(i i)  sabotage, riot, civil disturbance, insurrection,
  any “Other Content”; and
epidemic, national emergency (whether in fact or
(i i)  any additional content we approve in accordance
law) or act of war (whether declared or not);
with that section.
(iv)  requirement or restriction of, or failure to act by,
(d)  Default Event means:
any government, semi-governmental or judicial
(i)  you abandon or state your intention to abandon
entity
the Project;
but does not include:
(i )  the Primary Platform Owner withdraws its support
(v)  any event which the party affected could have
to broadcast any  Content,  or  any funding
avoided, prevented or overcome by implementing
(excepting NZ On Air funding) for any Content is
reasonable precautions against the event;
withdrawn in whole or in part, with the effect or
likely effect that the ability to produce, broadcast
(vi)  any event which you  could have prevented or
and publish any Content as original y intended is
overcome but for a prior failure  to comply with
prejudiced;
your obligations under this Agreement;
(i i)
(vi ) any failure of a contractor to enable you  to
  we reasonably believe you are unable to ensure
the health and safety of al  workers and other
perform  your  obligations under this Agreement,
persons in relation to the Project;
except to the extent that the contractor’s failure is
itself caused by Force Majeure; or
(iv)  you  breach  this Agreement or we reasonably
believe you are likely to breach this Agreement;
(vi i)  a lack of funds for any reason.
(v)
(i)  Platform Owner means the person described as owner
  you breach any other agreement, such that there
is or is likely to be a material adverse effect on any
of a Distribution Platform in the “Distribution” section
Content or your ability to meet  your obligations
of Schedule 1. There is:
under this Agreement, including  where  we
(i)  a  “Primary Platform Owner”  for the Primary
reasonably believe:
Distribution Platform; and
under the Official Information Act
(A)  you are unable to deliver any Content by the
(i )  an  “Additional Platforms Owners”  for any
Project Completion Date; or
Additional Distribution Platform.
(B)  any  Content differs  materially from the
(j)  Project means the Project described in Schedule 1.
Proposal; or
(k)  Project  Budget  means  the budget in Schedule 4, as
(vi)  you or the Primary Platform Owner become
varied with our prior written approval.
insolvent, stop or suspend payment of any debts,
(l)  Project Completion Date  means the project
have a receiver appointed over any assets, or fail to
completion date described in the “Production Activity”
satisfy any final judgement within 5 Business Days,
section of Schedule 1.
or we reasonably believe either of you are at risk of
doing any of those things.  To avoid doubt, a notice
(m)  Proposal means your proposal in Schedule 3, as varied
received by us under section 157 of the Tax
with our prior written approval.
Released
Administration Act 1994 or section 43 of the Goods
1.2  In interpreting this Agreement, unless the context requires
and Services Tax Act 1985 in respect of any party,
otherwise:
constitutes reasonable grounds to believe that that
(a)  Defined  Terms:  Words  or phrases appearing in this
party is or is threatened with becoming insolvent.
Agreement with capitalised initial letters are defined
(e)  Distribution Agreement  means any agreement
terms and have the meanings given to them in this
between you and any third party in relation to the sale,
Agreement.
licensing or other exploitation of any Content.
12

(b)  Documents:  A  reference to any document, including  2.6  You are not relieved of any obligation under this Agreement
this Agreement, includes a reference to that document
by subcontracting or delegating it to any third party,
as amended or replaced from time to time.
whether directly or indirectly. You are responsible for the
(c)
acts and omissions of any such third party, as if they were
  Gender: Reference to any gender include al  genders.
your own acts or omissions.
(d)  Headings: Headings are for guidance only and do not
affect interpretation.
3
Accounting/Information
(e)
3.1
  Inclusions:  Reference to “includes” means  “includes

If we make a request for information about your solvency
without limitation”, and “include”, “included” and
and ability to complete the Project, you agree to promptly
“including” have corresponding meanings.
make that information available to us and allow us, at
reasonable times, to inspect your accounts, books and
(f)  Negative Obligations:  A  prohibition against doing
records relating to the Project.
something is also a prohibition against permitting,
suffering or causing that thing to be done;
3.2  You must  retain originals of al  receipts and invoices for
costs incurred for 2 years after the Project has ended, on
(g)  Person: Reference to a person includes:
the understanding that the  Project  could be subject to
(i)  a corporation sole, a body of persons, whether
review by us.
corporate or unincorporated, and any national,
3.3  You wil  ensure that:
state, regional or local government body or
agency; and
(a)  you wil  comply with al  applicable tax legislation and
indemnify us against liability to any third party and any
(i )  that person’s representatives, successors and
costs we reasonably incur  as a result of any non-
assigns.
compliance including any costs associated with the
(h)  Related Terms: where a word or phrase is defined, its
col ection of any taxes and any other incidental costs,
other grammatical forms have a corresponding
expenses, penalties or claims. Applicable tax legislation
meaning.
includes al  legislation relating to PAYE, withholding
(i)
tax, fringe benefits tax, employer superannuation
  Singular and Plural:  The  singular includes the plural
and vice versa;
contribution tax, accident compensation levies,
KiwiSaver deductions and contributions and any other
(j)  Statutes and Regulations:  A  reference to any
tax or levies imposed upon an employer in respect of
enactment, regulation or expression of Government
its personnel;
policy is a reference to that enactment, regulation or
policy as amended, or to any enactment, regulation or
(b)  if you are a company, until the Project Completion Date
policy  substituted for it, and any reference to an
there wil  be no change of your ownership or control by
enactment includes al  regulations made under that
way of sale of the whole or substantial part of your
enactment.
assets without our prior written consent. Our consent
wil  not be unreasonably withheld where such change
(k)  Writing:  A  reference to “written” or “in writing”
or sale would not affect your ability to comply with
includes al  modes of presenting or reproducing text in
your obligations under this Agreement;
a form that is legible, permanently visible and capable
of being retained and stored (which to avoid doubt may
(c)  the details you provided to us (including in any your
include email).
Proposal and Project Budget) are true and correct in all
respects; and
2
Using our Funding
(d)  all reports you provide to us under this Agreement are
2.1  We have no obligation to provide any additional funding for
true and correct and contain the required information.
the Project and you have no expectation of the same.
3.4  Where our funding for the Content, under this Agreement
2.2  You must use our funding only to meet reasonable costs of
together with any earlier agreement, is $1,000,000 or more,
the  Project  that are specified in the Project Budget and
you must report any interest earned on the total funding
under the Official Information Act
incurred in accordance with this Agreement.  Subject to this
received for the Project in each cost report and such interest
Agreement, you must use al  other funds secured for the
may only be used by you to meet any increase in the Project
Project in accordance with any agreement for the provision
Budget. If there is no increase in the Project Budget, any
of those funds.
such interest wil  form part of the under-spend described in
2.3  If our funding has been spent but al  Content isn’t finished,
the “Funding” section of Schedule 1.
you wil  ensure sufficient additional funding is obtained to
3.5  We may deduct any withholding tax required to be
finish the Project in accordance with this Agreement.
deducted from our payments under this Agreement, and
2.4  We have no liability to you, or any third party, as a result of,
wil  forward that withholding tax to the New Zealand Inland
or in any way in connection with, this Agreement or the
Revenue as required by law.
Project, except only to the extent we have failed to pay an
4
Intel ectual Property
instalment of funding without reasonable excuse.
4.1
Released

As between you and us, you wil  own on their creation al
2.5  You must perform your obligations under this Agreement:
intellectual property rights in relation to the Content that
(a)  promptly with due diligence, care and skil ;
arise under or in connection with this Agreement.
(b)  with appropriately skil ed, qualified, experienced and
4.2  You covenant with us that:
supervised personnel.
(a)  you have obtained and wil  retain al  necessary rights,
licences, consents or other authorities with respect to
13

the Project, and which enable the performance of the
6.3  The party claiming the benefit of this clause 6  (Force
Project, and exploitation of al  Content, in accordance
Majeure) wil :
with this Agreement and any Distribution Agreement;
(a)  take all reasonable steps to avoid or remove the Force
and
Majeure and mitigate its effects on the other party;
(b)  the performance of the Project and exploitation of any
(b)
Content  in accordance with this Agreement  wil  not
  keep the other party ful y informed of such steps as
have been taken and are planned; and
violate or infringe the copyright, right of privacy, moral
rights nor any other rights of any third party and will
(c)  meet its obligations under this Agreement as far as is
not contain any defamatory material.
practical given the Force Majeure.
5
Health and Safety
6.4  Where you are claiming the benefit of this clause 6 (Force
Majeure), you wil  if requested by us in writing:
5.1  You confirm you are aware of your obligations under the
Health and Safety at Work Act 2015.
(a)  refund a reasonable proportion of the funding to us to
reflect any reduction in the value of the Content to us
5.2  In the performance of the Project you agree to comply with:
as a result of the Force Majeure; and
(a)  the Health and Safety at Work Act 2015; and
(b)  discuss  with us in good faith alternative ways of
(b)  the “New Zealand Screen Sector Health and Safety
achieving our objectives for this Agreement  (such as
Guidelines” published by ScreenSafe.
agreeing to vary the required Content in order to
You also agree to obtain an acknowledgement, from any
produce something of value despite the  Force
person you contract in connection with or relating to the
Majeure).
production of the Content, that they wil  do the same.
6.5  Performance of any obligation affected by Force Majeure
5.3
wil  be resumed as soon as practicable after the termination

You must consult, co-operate with, and co-ordinate health
and safety activities with al  other persons that have health
or abatement of the Force Majeure.
and safety obligations in respect of the production of any
7
Default
Content.
7.1  Our payment of funding does not constitute acceptance
5.4  You must report to us, within 24 hours of the incident
that you are complying with your obligations under this
concerned, details of any:
Agreement, and does not prevent us from exercising our
(a)
rights arising from your breach of this Agreement at any
  notifiable event (as defined in the Health and Safety at
Work Act 2015) related to the Project; or
time.
(b)
7.2
  incident relating to the Project which results (or could

If there is a Default Event, we may give you notice and at
reasonably have resulted or could yet result) in death,
least 5 Business Days to remedy the Default Event. If you
serious injury or serious il ness.
don’t remedy it, then we can do any or al  of the fol owing
without limiting our other remedies:
We may, at any time on reasonable notice, require a meeting
with you or  anyone  affected by the event, to obtain
(a)  Suspend funding under this Agreement and any other
information and to discuss  the event and the planned
agreement for us to fund you.
responses to it.
(b)  End this Agreement and stop funding at that time.
5.5  You wil  provide such information as reasonably requested
(c)  Require  repayment of any  funding already provided
by us to demonstrate your compliance with your health and
under this Agreement (however we wil  negotiate with
safety obligations under this Agreement.
you about costs you  have already incurred up to
5.6
termination and we may, but are not required to, meet

We may, from time to time, at our own cost and on written
notice to you, audit your compliance with your health and
those costs).
safety obligations under this Agreement. You wil   do
(d)  If  you obtained our funding fraudulently,  require
whatever is required to facilitate and assist the audit.
interest calculated at 15% per annum from the date of
under the Official Information Act
6
payment to the date the funding is repaid.

Force Majeure
6.1
(e)

Non-performance by either party of any of its obligations
  Take  over the Project  in accordance with clause 8
under this Agreement wil  be excused, without liability for
(Takeover).
non-performance, during the time and to the extent that
7.3  You indemnify us against al  liability we may have to any
such performance is prevented, whol y or substantial y, by
third party as a result of any Default Event, and against al
Force Majeure, with effect from the time that notice of the
expenses (including legal fees) we incur in relation to that
Force Majeure has been given in accordance with clause
liability. Clause 10.5 applies to this indemnity.
6.2.
7.4  Termination of this Agreement wil  not affect any rights and
6.2  The party claiming the benefit of this clause 6  (Force
obligations  that  are intended to survive termination,
Majeure) wil , as soon as is practical and to the extent
including clauses 3 (Accounting/Information), 4 (Intellectual
known to that party, give notice to the other party
Property),  5 (Health and Safety), 7 (Default), 8 (Takeover),
Released
specifying:
9 (Confidentiality), 10 (Disputes), 11 (Audit), 13 (Costs and
(a)
Expenses), 14 (Notices) and 15 (General), your obligations
  the nature of the Force Majeure;
and our rights in the “Required Distribution” and “After
(b)  the extent of its inability to perform its obligations
Completion” sections of Schedule 1, and any obligation to
under this Agreement; and
share revenue with us or return funding to us.
(c)  the likely duration of such non-performance.
14

7.5  If you are a company, we want to ensure that, should you
(vi ) do al  such other lawful acts and things as we may
be  removed from the Companies Register, your  residual
determine is reasonably necessary to exercise our
title or rights in  al   Content can continue to  benefit New
rights under this clause 8  (Takeover)  (including
Zealanders. Accordingly, without limiting any of our rights
executing any power of attorney contemplated by
under this Agreement and subject to the provisions of any
subclause (b) if you fail to do so); and
existing agreements relating to any Content, when al  the
(b)
conditions of section 318 of the Companies Act 1993 have
  you  wil , if requested by us, execute a Power of
Attorney in favour of us or any of our officers in respect
been met so that the Registrar must remove you from the
of the powers listed in subclause (a).
Companies Register but immediately prior to such removal,
the right to unlimited streaming on the website located at
8.3  We  wil   not be liable to you,  and  you  wil   indemnify  us
http://www.nzonscreen.com wil  be assigned to and vest in
against liability to any third party, as a result of any act or
the Digital Media Trust (a charitable trust board
omission occurring prior to our exercising our right to take
incorporated under the Charitable Trust Act 1957).  To the
over the Project. Clause 10.5 applies to this indemnity.
extent permitted by law, you irrevocably constitute and  8.4  Without prejudice to our  remedies,  if we take over the
appoint  us  as your attorney in fact with full power and
Project under clause 7 (Default), your entitlement to share
authority to enter into and  execute any document giving
in the proceeds of any sale, licensing, distribution or other
effect to the assignment. This clause is for the benefit of,
exploitation of any  Content  wil   be reduced in such
and enforceable by, the Digital Media Trust, however this
proportion as is equitable in al  the circumstances (having
Agreement can be amended without their consent.
regard to the extent which you  had met your obligations
8
Takeover
under this Agreement prior to the takeover and the amount
of Project Funding provided by you, if any).
8.1  We wil  give you written notice under clause 7 (Default) if
we take over the Project. If we so take over the Project:
9
Confidentiality
(a)  you wil  put at our disposal and under our control, al
9.1  The contents of this Agreement are confidential and wil  not
persons, contracts, equipment and other resources
be disclosed by either party except:
employed or used by you in connection with the
(a)  to people who need to know for the purpose of the
Project, provided that we may elect not to take over
Project or this Agreement, and who maintain the same
any contract or obligation of yours which we consider
level of confidentiality;
to be unduly onerous (and any costs or liabilities arising
in relation to such contracts or obligations as a result of
(b)  with both parties’ prior written consent; or
our exercising this right of election wil  be borne by
(c)  as required by law.
you);
9.2  You acknowledge that we are subject to and bound by the
(b)  we may at our discretion arrange for the Project to be
provisions of the Official Information Act 1982 and are
completed by a third party and, if the Primary Platform
required to treat any request for information under the
Owner is listed in Schedule 1 as contributing funding to
Official Information Act 1982 in accordance with the
the Project, we wil  consult with them to see if they
provisions of that Act.
wish to complete the Project; and
10  Disputes
(c)  we may complete (or arrange for the completion of) or
10.1  If any dispute arises between you and us in relation to this
abandon the Project at our discretion (and we wil  be
Agreement, it wil  be referred for resolution to our Chief
deemed to do so as your agent on the terms of this
Executive (or the Chief Executive’s nominee) and (if you are
Agreement).
an organisation) your Managing Director or equivalent. If
8.2  To confirm our rights as your agent:
the dispute is not resolved within 5 Business Days of the
(a)
issue being referred for resolution (or such longer period as
  For the purpose of this clause 8 (Takeover), you hereby
irrevocably constitute and appoint us as your attorney-
we both agree), the dispute wil  be referred to mediation
under the Official Information Act
in-fact with full power and authority to do any of the
and the chairperson for the time being of the Resolution
fol owing in connection with the Project:
Institute (or his or her nominee) wil  be requested to
appoint a mediator. For contact details see
(i)  make withdrawals from and otherwise deal with
https://www.resolution.institute/.
funds in the Project bank account;
10.2  You and we wil  continue to perform al  of our respective
(i )  borrow money; enforce, modify, release,
obligations under this Agreement whilst the dispute is
compromise or terminate any contract or other
referred  to  mediation,  provided that where we  consider
right or obligation of yours relating to the Project;
that the dispute relates to your  material breach of any
(i i)  engage and discharge Project  personnel (subject
obligation under this Agreement, we may elect to withhold
to employment laws);
payments due to you until the dispute has been resolved to
our satisfaction.
(iv)  enter into or terminate any contract relating to the
Project;
10.3  You and we wil  each pay our own costs associated with this
Released
dispute resolution procedure unless the mediator or other
(v)  acquire or lease or dispose of equipment and
dispute resolution co-ordinator determines otherwise.
other real or personal property  relating to the
Project;
10.4  Nothing in this Agreement wil  preclude you or  us  from
taking immediate steps to seek equitable relief before a
(vi)  make claims under any policy of insurance relating
Court.
to the Project; and
10.5  For each indemnity to which this clause applies, we wil :
15

(a)  promptly notify you if we become aware of any liability
(d)  if sent by email, at the time the email enters the
covered by the indemnity;
recipient's information system as evidenced by a
(b)
delivery receipt requested by the sender and it is not
  not admit or settle any claim for such liability, without
your prior written consent (not to be unreasonably
returned undelivered or as an error.
withheld);
14.4  A notice received after 5pm on a Business Day or on a day
(c)
that is not a Business Day wil  be considered to be received
  at your request and expense:
on the next Business Day.
(i)  al ow you to conduct and settle al  negotiations
and litigation resulting from such claim, provided
15  General
we are consulted on, and may be represented at,
15.1  This Agreement can be validly signed by each party signing
the same and you effect our reasonable
a separate, identical copy of this Agreement and sending it
requirements for the same; and
to the other party.  The signed copies  can be printed
(i )
documents or emailed copies.
  provide reasonable assistance with any such
negotiations or litigation; and
15.2  Subject to clause  15.3, you wil  not dispose of (including
(d)
assign, sel , transfer or make subject to any lien, trust,
  use reasonable endeavours to minimise the  liability
and expenses covered by the indemnity.
encumbrance or security interest) any rights or obligations
under this Agreement without our prior written consent.
11  Audit
15.3  After the Project Completion Date, unless NZ On Air has an
We have the right at our cost to require the cost reporting
income share under Schedule 6,  you may dispose of any or
and processes be audited, to set the scope of the audit and
al  of your rights or  obligations under this Agreement
to appoint an auditor. You wil  do whatever is required to
without our prior written consent, provided you:
facilitate and assist the audit.
(a)  notify us of each disposal, in writing and in advance;
12  Insurance
(b)  before disposing of any obligations  under  this
12.1  You wil  obtain, pay the premiums for, and maintain in force
Agreement, you ensure that the person acquiring those
such insurance coverage for the Project as is prudent,
obligations agrees with us in writing (in a form
whether the insurance is specific to the Project or general
approved by us) to perform those obligations; and
to your business. If asked to do so by NZ On Air, you wil
add us as an additional insured party to any such insurance
(c)  you  remain  jointly and several y liable with them for
policies. We may require you to provide copies of any
any failure to do so.
insurance policy covering the Project at any time.
To avoid doubt, “dispose of” does not include changes to
12.2
your directorships or shareholders.
  The insurance wil  be for fully adequate sums having regard
to the potential loss.
15.4  We may assign or novate all of our rights and obligations
12.3
under this Agreement to another Government agency that
  The proceeds of any claim under any policy of insurance wil
first be applied in payment of al  reasonable costs and
takes over our functions in respect of this Agreement,
expenses in making the claim and secondly to defray the
effective on written notice to you.
cost of replacing the property in respect of which the claim
15.5  This Agreement can only be amended as agreed in writing
was made. The balance, if any, wil  be accounted for in the
by both you and us.
cost report, or if received after the Completion Instalment,
15.6  This Agreement represents the entire agreement between
will form part of Net Income.
the parties relating to the Content. This Agreement
13  Costs and Expenses
replaces al  prior proposals or agreements and al
13.1
communications between the parties relating to the subject
  This  Agreement contains our  standard terms and
conditions. If you require significant changes to this
matter of this Agreement.
agreement, you agree to pay all our reasonable legal fees
15.7  Any  invalid, il egal or unenforceable provision of this
under the Official Information Act
that may be incurred in connection with negotiating and
Agreement wil  be amended to the minimum extent
amending this Agreement. These costs may be paid for out
necessary to ensure that it is not unlawful and, as far as is
of the Project Budget if there are sufficient funds.
possible, to ensure that it is consistent with the intent and
14
effect of the provision. The remaining provisions wil  be

Notices
enforceable as if such unlawful provision had not been
14.1  Al  notices to a Party must be delivered by hand or sent by
included in this Agreement. If the provision is unable to be
post, courier, or email to that Party's address for Notices on
amended without material y altering the intent and effect
the front page of this Agreement.
of the provision, it wil  be severed, and the remaining
14.2  Notices must be signed or in the case of email sent by the
provisions enforceable, but only if the severance does not
appropriate manager or person having authority to do so.
frustrate this Agreement.
14.3  A notice wil  be considered to be received:
15.8  Nothing in this Agreement wil  create or constitute or be
(a)
deemed to create or constitute a partnership between you
Released
  if delivered by hand  or courier, on the date it is
delivered;
and us, nor to constitute or create or be deemed to create
or constitute a party as an agent of the other party for any
(b)  if sent by post within New Zealand, on the 3rd Business
purpose except as expressly provided  in  this Agreement.
Day after the date it was sent;
Neither  you nor we wil   have any authority or power
(c)  if sent by post international y, on the 7th Business Day
whatsoever to bind or commit, act or represent or hold
after the date it was sent; or
itself out as having authority to act as an agent of, or in any
16

way bind or commit the other to any obligation except as
waiver of any breach (which must be writing) wil  not be or
expressly provided in this Agreement.
be  deemed to be a waiver of any other or subsequent
15.9
breach.
  Except as expressly provided in this Agreement, this
Agreement wil  not and is not intended to confer any benefit
15.11 You  and we  agree to use al  reasonable endeavours to
on or create any obligation enforceable by any person not a
execute al  such further documents and do al  other things
party to this Agreement.
necessary to give effect to the terms of this Agreement.
15.10 Any delay or failure by us to use any right under this  15.12 You agree to comply with al  laws and regulations in relation
Agreement wil  not operate as a waiver of such right. A
to this Agreement.

under the Official Information Act
Released
17

SCHEDULE 3
YOUR PROPOSAL

Proposal redacted under s9(2)(b) of the OIA

under the Official Information Act
Released
18

SCHEDULE 4
PROJECT BUDGET

The Project Budget is attached.

Internal and Related Parties
You confirm that the Project Budget clearly identifies al :

(a)  internal budget items; and

(b)  transactions between you and any related party (as that term is defined in For-profit accounting standards set out by
the NZ Accounting Standards Board – currently NZ IAS 24) in relation to the Project.

Non-Cash Items
You confirm that the non-cash items in the Project Budget are as fol ows:
s9(2)(b)
under the Official Information Act

Released
19

SCHEDULE 5
PRODUCER’S HEALTH AND SAFETY CONFIRMATION

The fol owing confirmation is to be completed by you during pre-production and provided to us before production begins.
To:
The Chief Executive
NZ On Air
PO Box 9744
Wel ington 6141

PRODUCER’S HEATH AND SAFETY CONFIRMATION

The Broadcasting Commission (“NZ On Air”) entered into a Funding Agreement with Stuff Limited (“the Producer”) whereby
NZ On Air agreed to fund the production of content provisional y cal ed “Circuit 2” (“the Project”).
The Producer now confirms to NZ On Air, in the context of the Health and Safety at Work Act 2015 (“the Act”), that:
(a)
to the extent reasonably practicable, the Producer has consulted, co-operated and co-ordinated with al  PCBUs as
defined in the Act (e.g. contractors) over al  health and safety plans for the Project; and
(b)
the New Zealand Screen Sector Health and Safety Guidelines found at http://screensafe.co.nz/ are being and wil
continue to be fol owed on the Project; and
(c)
to the extent reasonably practicable, al  risks to health and safety on the Project have been assessed and identified
risks have been entered in a hazard register along with how these wil  be eliminated or minimised; and
(d)
the current Project budget, including NZ On Air’s funding, is enough to ensure the Producer meets its obligations
for the health and safety of al  persons connected with the Project.
The Producer understands that in accordance with clause 5.4 of Schedule 2 of the Funding Agreement, any notifiable event,
or any serious health and safety incident or near miss, must be reported to NZ On Air within 24 hours.
DATED the
  day of

2020

SIGNED for and on behalf of Stuff Limited by the Project’s producer:

_______________________________
Signature
under the Official Information Act
Name:
Title:

Released
20

SCHEDULE 6
INCOME SHARING ARRANGEMENTS
1  DEFINITIONS
2.2  Within one month from signing any  Distribution
1.1  Terms defined elsewhere in this Agreement wil  have
Agreement you wil  inform us of the agreement. On
the same meaning in this Schedule.
our request from time to time, you wil  provide us with:
1.2  Unless the context requires otherwise, in this Schedule:
(a)  a copy of the agreement; and
(c)  Ancillary Rights means:
(b)  a report on the general sales prospects of the
(i)
Content under the agreement.

the right to produce (or authorise such
production and exploitation of) projects
In any event, you wil  distribute al  Content properly and
based on any  Content and/or the same
in good faith.
themes, situations, concepts, incidents and
2.3  You wil :
principal characters and including the right
(a)  make every effort to col ect al  receipts arising
to use the codebase, scripts and storylines
from the sale or licensing or other exploiting of the
for any Content adapted and varied for the
Combined  Rights as is commercial y reasonable;
audience;
and
(i )  the right to produce and exploit any audio-
(b)  not violate any rights of any third party by the
visual, computer-generated, electronic or
entry into distribution, sales agency, or other
mechanical work based on or derived from
agreements relating to the sale or licensing or
or inspired by any Content;
other exploiting of the Combined Rights.
(i i)  al   merchandising, stage, music and  3  SHARING NET INCOME
soundtrack rights in relation to any Content;
and
3.1  Net Income wil  be shared between the both of us as
fol ows:
(iv)  any right to exploit the Field Footage.
(a)  in respect of the Content Rights:
(d)  Content Rights means al  rights in any Content in
any medium throughout the world  (including
(i)  until we have fully recouped our funding for
video cassettes, videodiscs (including DVDs and
al   Content  under this Agreement and any
Blu-rays) and any other devices for reproducing
other agreement:
visual images and sounds which may be played
You and permitted assignees:
s9(2)(b) %
back by the use of a playback device and intended
Us:

s9(2)(b) %
for sale or hire to the public for home use), except
(i )  thereafter:
for:
You and permitted assignees:
s9(2)(b) %
(i)  the rights of any Platform Owner identified
s9(2)(b)
in this Agreement; and
Us:

%
(i )
(b)
  the Ancil ary Rights.
  in respect of the Ancil ary Rights:
s9(2)(b)
(e)
You and permitted assignees:
%
  Combined Rights means:
s9(2)(b)
(i)
Us:

%

al  Content Rights; and
(i )
3.2
  al  Ancil ary Rights.
  You  may  not assign al  or any of your share of Net
Income to the Primary Platform Owner.
(f)  Distributor  means  a  person authorised to sel ,
license, distribute and authorise the sale,  3.3  For the purposes of this Schedule, “Net Income” is the
under the Official Information Act
licensing, distribution or other exploitation of any
sum of the fol owing items:
Combined Right.
(a)  Royalties.
(g)  Field Footage means any material produced in the
(b)  Gross Income less:
course of the production of any Content that is not
(i)  Delivery Expenses;
included as part of any Content as distributed in
(i )
any territory.
  Production Expenses;
(h)
(i i)  Distribution Expenses; and
  Net Income is defined in clause 3.3  of this
Schedule.
(iv)  Distributor’s Commission.
2
COMMERCIALISING THE CONTENT
(c)  The  balance of any claim under any policy of
2.1
insurance, as contemplated by clause 12
  Except  to the extent required otherwise by this
Agreement, you wil :
(Insurance) of Schedule 2.
Released
(d)
(a)
  The sale of any equipment or other tangible assets
  use  your  best endeavours to maximise Net
purchased out of the  Project Budget  for the
Income; and
purpose of the production of any Content.
(b)  only enter into Distribution Agreements that are
consistent with proper business practice, on arm’s
Where:
length, commercial terms.
21

(e)  “Royalties” means any payment made by a
you  may claim Distribution Expenses up to a
Distributor on a royalty basis (for example, a fixed
maximum of 5% of Gross Income and any further
percentage of the net wholesale price of a DVD or
costs incurred by you as Distributor that are
book or any payment made by col ecting society,
approved by NZ On Air on receipt of supporting
performers or authors rights organisations such as
documentation acceptable to NZ On Air.
Screenrights)  to  you  in  connection with any
(j)  “Distributor’s Commission” means an amount
Content.  If at any time you have registered any
equal ing up to 30% of Gross Income received by
Content with Screenrights or similar organisation,
the relevant Distributor, or such other amount
you wil  be deemed to have instructed the
approved by NZ On Air in writing such approval
organisation to provide us  with copies of al
not to be unreasonably withheld, from the sale,
financial reports in respect of that Content.
licensing, distribution or other exploitation of the
(f)  “Gross Income”:
Combined Rights from which wil  be deducted al
(i)  means al  moneys accruing from the sale,
sub-distribution fees and commissions applicable
licensing, distribution or other exploitation
to the Gross Income which is the subject of the
of the Combined Rights;  and
commission calculation.
(i )  excludes Royalties and  the first $5,000 of  4
REPORTING NET INCOME
Gross  Income accruing solely from the  4.1  You  wil  keep proper accounting records of al
exploitation of Field Footage.
transactions carried out in relation to the sale, licensing
(g)  “Delivery Expenses”:
and other exploitation of the Combined Rights and wil
(i)
produce such records for inspection as may reasonably

means  your  direct,  actual and reasonable
costs that are necessary to deliver any
be required by NZ On Air.
Content  to a Distributor (or,  to the extent
4.2  Unless we agreed otherwise with you in writing, you
you  are  acting as Distributor, necessary to
wil  provide reports to NZ On Air:
distribute  any  Content)  and which are
(a)  where you are not  a  Distributor,  within 10
consistent with proper business practice,
Business Days following receipt by you of a report
incurred on commercial terms, properly
from a Distributor); or
al ocated to any Content, and approved by
(b)  where you are a Distributor, on a six monthly basis
us on receipt of supporting documentation
in the first two years with the first report due six
acceptable to us costs relating to errors and
months from the Project Completion Date and on
omissions insurance and clearance of music,
a yearly basis thereafter,
archive and external footage wil  be deemed
approved;
provided that:
(i )
(c)  you must report Net Income within 10 Business
  excludes  all salary and overheads, costs
relating to attendance at markets,
Days of it reaching NZ$10,000 or more; and
preparation of promotional materials for
(d)  from five years after the Project Completion Date,
markets and  legal costs relating to
reports wil  only be due where there is Net Income
negotiating a Distribution Agreement.
to report.
(h)  “Production Expenses” means direct actual and  4.3  The reports wil  include:
reasonable out-of-pocket costs incurred by the
(a)  copies of any new  Distribution Agreements  or
Distributor or you  (as applicable) in connection
amendments to any Distribution Agreement;
with the production of video cassettes, videodiscs
(b)
(including DVDs), any other devices for
  copies of any statements received from the
Distributor showing Gross Income and/or
reproducing visual images and sounds which may
Royalties and all payments made by the
be played back by the use of a playback device
Distributor out of Gross Income including
under the Official Information Act
intended for home use, books or other
Distribution Expenses (capped and uncapped) and
merchandise relating to any Content.
Distributor’s Commission; and
(i)  “Distribution Expenses” means direct, actual and
(c)
reasonable out-of-pocket costs of a Distributor
  a statement of receipts and payments detailing al
Gross Income and/or Royalties received by you,
(exclusive of salary and overheads) properly
and all payments made by you  out of Gross
incurred in connection with the sale, licensing or
Income including Delivery Expenses, Production
other exploitation of the Combined Rights on an
Expenses, Distribution Expenses and Distributor’s
arm’s length basis and properly al ocated to any
Commission along with a calculation of our share
Content  in accordance with the relevant
of Net Income.
Distribution Agreement up to a maximum of 5% of
Gross Income from that Distribution Agreement,
4.4  We may, at any time on reasonable notice, require you
unless otherwise approved by NZ On Air in writing
to meet to  provide  information and to discuss the
Released
provided that where a Distribution Agreement
reports provided pursuant to clause 4.2 above.
contains provision for uncapped costs of the  5
PAYING OUR SHARE
Distributor, such costs wil  be deemed approved
5.1  We wil  invoice you for our share of Net Income.  You
provided they have been properly incurred in
must pay our share of Net Income within 10 Business
accordance with the relevant Distribution
Days after receiving an invoice from us.
Agreement. Where you are the Distributor, then

22

Document Outline