DocuSign Envelope ID: 8611BB5E-371A-42AE-A418-289E424B172C
STANDARD FUNDING AGREEMENT
for Scripted and Factual Content
Project Title
Title
s 9(2)(a)
Parties
NZ On Air (us, we
Full Legal Name
BROADCASTING COMMISSION
or our)
Physical Address
2nd Floor, 119 Ghuznee St, Wellington 6011
Postal Address
PO Box 9744, Marion Square
WELLINGTON 6141
Email
[email address] (for notices)
[email address] (for informing us of release plans)
[email address] (for invoices and reports)
Phone
(04) 382 9524
Attention
Associate Head of Funding
Producer (you or
Full Legal Name
s 9(2)(a)
your)
Physical and
s 9(2)(a)
Postal Address
Email
s 9(2)(a)
Phone
s 9(2)(a)
Attention
s 9(2)(a)
Agreement
This agreement
Schedule 1 – Project Particulars
comprises
Schedule 2 – General Terms
Schedule 3 – Your Proposal
Schedule 4 – Project Budget
Schedule 5 – Producer’s Health and Safety Confirmation
Schedule 6 – Primary Platform Owner’s Covenants
Schedule 7 – Income Sharing Arrangements
Condition
The commencement of this Agreement is conditional on you providing us with the following covenants,
precedent
within two months after both of us have signed this Agreement:
A
Covenant to Publish from the Primary Platform Owner, in the form of Schedule 6A and duly signed.
A
Health and Safety Covenant from the Primary Platform Owner, in the form of Schedule 6B, duly
signed and demonstrating that health and safety risks are appropriately managed.
If this condition is not met by then, this Agreement is of no effect.
Acceptance
under the Official Information Act
In signing this Agreement, each party acknowledges they have read and agrees to be bound by it. Each party confirms that, as
at the date of this Agreement, the effects of the coronavirus pandemic on that party are not currently a Force Majeure event.
Agreement made this
10 day of
2021
August
For NZ On Air
s 9(2)(a)
s 9(2)(a)
Cameron Harland
Amie Mills
Chief Executive
Head of Funding
Released
s 9(2)(a)
– Funding Agreement (2021)
1.
DocuSign Envelope ID: 8611BB5E-371A-42AE-A418-289E424B172C
For the Producer
In signing this Agreement you confirm that you hold all intellectual property rights necessary to complete the Project and that
you are registered in New Zealand as a company, charity or incorporated society.
Act
Signature of Authorised person
Signature of Witness
s 9(2)(a)
s 9(2)(a)
Name and Position of Authorised person
Name of Witness
Information
Official
the
under
Released
s 9(2)(a)
– Funding Agreement (2021)
2.
DocuSign Envelope ID: 8611BB5E-371A-42AE-A418-289E424B172C
SCHEDULE 1
PROJECT PARTICULARS
Content
Under this Agreement we fund the following content. If you want to produce any additional content using our funding under
this Agreement, you must have our prior written approval.
Main Content
You will produce the following Content in accordance with this Agreement and otherwise as set out in
Act
your Proposal.
Working Title
“s 9(2)(a)
”
Episodes
1 x 44 minutes
Total Duration
44 minutes
Publishing Obligations
Our aim is to ensure that great New Zealand content is valued and enjoyed by many New Zealand audiences. Accordingly, you
agree to publish the Content, or arrange for the Content to be published, as set out in the following rows of this table (together,
your
Publishing Obligations). You will ensure that all necessary rights, licences, consents and other authorities required to
meet your Publishing Obligations have been obtained and retained. Until completion of the Publishing Obligations:
(a)
If you license the Content, or make it available, exclusively for publication in New Zealand, you will ensure:
(i)
you have our prior written permission for the licence; and
(ii)
that the licence does not conflict with any of your obligations under this Agreement.
(b)
You will not dispose of (including assign, sell, transfer or make subject to any lien, trust, encumbrance or security interest)
Information
any of your rights or title in any Content without our prior written consent.
Nothing in this section requires our consent for or prevents your licensing or distribution of the Content internationally.
To the extent applicable to the Content, any reference in this Agreement to “publish” (in any of its grammatical forms)
includes reference to “broadcast” (in its corresponding grammatical form).
Primary
Primary Platform
TELEVISION NEW ZEALAND LIMITED
Distribution
Owner
Platform
Channel
TVNZ 1
Platform Type
Television
Official
Platform Website
www.tvnz.co.nz
Distribution
Producer confirms that it has agreed to the following rights with the Primary
Rights
Platform owner: unlimited plays for three years for free‐to‐air, Pay TV and Video on
Demand. If the Primary Platform Owner does not publish the Main Content in
accordance with the
Covenant to Publish in the form of Schedule 6A you will work
the
with us to agree replacement publication(s), without breaching your third party
obligations.
Extended
Do not apply.
Platform Rights
Free Online
If the Publishing Obligations are not complied with, you will ensure the Main Content (as modified or
Access
extended from time to time) is available to the New Zealand public:
(a)
in an online form approved by us;
under
(b)
without charge to the public (except you may charge a reasonable amount, as approved by us, for
modifications or extensions to the Main Content that we didn’t fund); and
(c)
promptly following completion of the Main Content (and in any event within 12 months of that
date) for a consecutive period of at least one year.
Released
s 9(2)(a)
– Funding Agreement (2021)
3.
DocuSign Envelope ID: 8611BB5E-371A-42AE-A418-289E424B172C
Funding (excluding GST)
Total Funding
From us
Our Development Funding
$Nil under the Development Funding
Agreement
Our Project Funding
$238,575
under this Agreement
Total of our funding
$238,575
From all parties
Total Project (Non‐Cash)
$Nil
Total Project (Cash)
s 9(2)(b)(ii)
Act
Total funding
s 9(2)(b)(ii)
Project Funding
You confirm that the following table includes all funding you have secured (both cash and non‐cash) at
any time in relation to the Content. You confirm that all Content can be completed in accordance with
this Agreement within this amount. On our request, you must give us evidence that the above funding
has been secured and will be provided to enable completion of all Content in accordance with this
Agreement.
Funder
Cash
Non‐Cash (itemised in the Project
Budget)
Our equity
$238,575
$Nil
You
$Nil
$Nil
Primary Platform
s 9(2)(b)(ii)
$Nil
Owner
Total Project
s 9(2)(b)(ii)
$Nil
Information
Funding
You must ensure that all cash and non‐cash funding that is not provided by us, is provided in time to
meet the Project Completion Date below. You must let us know immediately if you become aware of
any circumstance that may result in funding not being provided as above.
Drawdown
We will contribute our Project funding in accordance with the following drawdown schedule. We may,
Schedule
after consulting with you, vary drawdown dates or amounts where we reasonably consider you then hold
excess or insufficient funds to meet immediate costs and expenses for the Project.
To receive our funding, you must meet each of the conditions specified in the drawdown schedule to our
Official
reasonable satisfaction.
First Instalment
After:
$36,000
Both of us have signed this Agreement
The above condition precedent for this Agreement
the
has been met.
Your invoice for this instalment.
Second
After you give us:
$36,000
Instalment
Evidence of first day of pre‐production.
Copies of any agreements related to the funding of
the Project.
A producer report as per our requirements outlined
at https://www.nzonair.govt.nz/funding/resources‐
under producers/#drawdowns at the time of your report
(
Producer Report).
A cost report as our requirements outlined at
https://www.nzonair.govt.nz/funding/resources‐
producers/#drawdowns at the time of your report
(
Cost Report)
Your invoice for this instalment.
Third Instalment
After you give us:
$60,000
Evidence of first day of production.
Confirmation of first payment from Primary Platform
Owner (and other funders if requested).
A health and safety confirmation from the Primary
Released
Platform Owner, in the form required by us, pursuant
to their
Health and Safety Covenant under Schedule
6B.
A signed health and safety confirmation as per
Schedule 5.
s 9(2)(a)
– Funding Agreement (2021)
4.
DocuSign Envelope ID: 8611BB5E-371A-42AE-A418-289E424B172C
A Producer Report.
A Cost Report.
Your invoice for this instalment.
Fourth
After you give us:
$47,000
Instalment
Evidence of first day of post‐production.
A Producer Report.
A Cost Report.
Act
Your invoice for this instalment
Fifth Instalment
After you give us:
$30,000
Evidence of offline approval of the Main Content by
the Primary Platform Owner.
A Producer Report.
A Cost Report.
Your invoice for this instalment
Sixth Instalment
After you give us:
$9,675
Evidence of full delivery of the Main Content to the
Primary Platform Owner.
At least 6 high resolution digital images from the Main
Content for us to publish in any form free of charge.
Your invoice for this instalment.
Completion
After you give us:
$19,900 (subject to
Information
Instalment
Evidence of completion of all Content (via a copy
deductions for under‐
delivered to us on USB or DVD).
spend as below)
A Producer Report.
A “final” Cost Report representing a true and fair view
of the costs of the Project and accounting for all
income received in relation to the Project and the
expenditure of the Project Budget.
A statistics report as per our requirements outlined at
https://www.nzonair.govt.nz/funding/resources‐
Official
producers/#drawdowns
Confirmation you have completed our diversity
survey.
A link that will persist for at least 1 year from the date
the
of publication to all Content.
Your invoice for this instalment.
Our Total Project Funding
$238,575 (under this
Agreement)
Invoices
Your invoices must include the bank account for payment. If you are GST registered and provide us with
a GST invoice, we will also pay GST in addition to each instalment.
Payment
We will pay your invoices within 10 Business Days of all drawdown conditions being met to our
under
reasonable satisfaction.
Project Bank
s 9(2)(b)(ii)
Account
We prefer you use a separate bank account solely for Project funding and expenses. If your account
includes non‐Project funding and we take over the Project under clause 8 (Takeover) of Schedule 2, we
may make withdrawals from and otherwise deal with all funds in the account whether or not they are
Project funds.
Under‐Spend
If the cash costs of the Project (incurred in accordance with the Project Budget in Schedule 4) are less than
the cash funding provided by us or anyone else for the Project, the difference will be shared as follows:
80% for us
20% for you (including any co‐funders or other third parties)
We may deduct the amount of our share from any outstanding payments under this Agreement or require
you to promptly pay our share to us.
Released In calculating the cash costs of the Project, you will deduct the reasonable market value of any asset
purchased out of the Project Budget that you retain or disposed of after the Project.
Income Sharing
We have a right to share in any income related to the Content, in accordance with Schedule 7.
s 9(2)(a)
– Funding Agreement (2021)
5.
DocuSign Envelope ID: 8611BB5E-371A-42AE-A418-289E424B172C
Production Activity
Production
You must complete production in accordance with your Proposal.
Production
Although the editorial control of all Content is entirely at your discretion, you must ensure that all
Standards
Content meets the following standards and use all reasonable endeavours to ensure that all subsequent
owners or licensors of any Content do the same. These standards do not apply to any user generated
content in a website that contains or references any Content.
Legality
All Content must meet all applicable laws and regulations.
Act
Technical Quality
All Content must be of a technical quality that is appropriate for their intended
audience and distribution platform(s), as set out in your Proposal. This standard will
not have been met if any of any Content has not been made available on a
Distribution Platform because of its technical quality.
Broadcasting
All Content must meet the standards in section 4(1) of the Broadcasting Act 1989
Standards
(as if the Content was a “programme” under the Act). This includes maintaining
standards that are consistent with:
the observance of good taste and decency;
the maintenance of law and order;
the privacy of the individual; and
any approved code of broadcasting practice applying to the programmes (see
http://bsa.govt.nz/standards/overview).
Community
Any Content, in part or in whole, which is not subject to a New Zealand approved
Standards
code of broadcasting practise must meet the “Don’t Cross the Line” rules in
Information
YouTube’s Community Guidelines (currently found at
http://nz.youtube.com/t/community_guidelines and in the “find out more” links on
that page, as updated from time to time) as if it were posted on YouTube.
New Zealand
You will use best endeavours to ensure all Content reflects and develops New Zealand identity and
Identity and
culture. In addition, where appropriate, you will use your best endeavours to ensure all Content reflects:
Culture
Māori issues in a way relevant to all New Zealanders; and
New Zealand’s ethnic diversity as well as the needs of other minorities and cultures in the community.
People
Key People
You must use the following key people or organisations in the Project:
Producer – s 9(2)(a)
Official
Directors – s 9(2)(a)
You must obtain our prior written approval if you want to replace any of them with
someone else.
Equal
To the extent possible given the nature of the Project, you will operate an equal
Opportunities
employment opportunities plan for all people engaged in association with the
the
Project.
Cast Engagement
We expect you will engage cast using the
Individual Performance Agreement agreed
between The Screen Production and Development Association and New Zealand
Actors Equity for use on New Zealand based productions.
Crew
NZ On Air expects that the Producer and crew will adhere to the “Blue Book” (as
Engagement
published by the Screen Industry Guild of Aotearoa New Zealand Inc.).
Contracts
You must promptly provide us with copies of all contracts and arrangements in relation to the Project that
you may have with any Platform Owner, funder, or anyone else involved in distributing any of the Content
under
to the New Zealand public. In particular, this includes all contracts and arrangements relating to New
Zealand distribution rights for the Content.
Project
You must complete the Project on or before 30 September 2022. If the Project is not complete by then,
Completion Date
we may exercise our rights under clause 7 (Default) of Schedule 2. The Project is complete when:
you meet all conditions required for the Completion Instalment to our reasonable satisfaction; and
all Content is finished and available for public access in accordance with this Agreement and your
Proposal.
Keeping us
You will keep us informed of the progress of the Project and meet with us if we ask. We and our
Informed
representatives may, at reasonable times and on reasonable notice, visit any studio, location or
elsewhere where production of any Content is being carried out, to observe the progress of the Project.
Any visitor will comply with your reasonable health and safety directions.
Released
s 9(2)(a)
– Funding Agreement (2021)
6.
DocuSign Envelope ID: 8611BB5E-371A-42AE-A418-289E424B172C
Other Activity
What you must
On completion of the Production Activity, you must do the following, and use all reasonable endeavours
do
to ensure that all subsequent owners and exclusive licensors of any Content do the same.
Ongoing Public
In accordance with your Publishing Obligations, you will use all reasonable
Assess
endeavours to give the New Zealand public such access to the Main Content as is
consistent with:
Act
(a) the rights, licences, consents and authorities obtained for the Project; and
(b) your Distribution Agreements.
Notify us of
Give us at least two weeks prior notice of the date the Main Content will first go live
public release
via email at [email address]
Acknowledge our
Ensure that we are acknowledged in all Content, as set out on our website at
funding
https://www.nzonair.govt.nz/funding/resources‐producers/#applying‐our‐logo
We reserve the right to change those acknowledgement requirements at any time
Only use
Tell us before allowing (to the extent this is within your control) any brand, product
appropriate
or service that could reasonably be considered inappropriate for us to be connected
sponsorship
with (including but not limited to tobacco, alcohol, drug or sex products or services)
to be associated with the Content (as modified or extended from time to time) by
way of advertising, sponsorship or similar commercial arrangement. We may veto
or require you to remove any such sponsorship, provided that our consent is not
required for the use of props in the normal course of production of the Content. For
clarity, this clause does not apply to general advertising sold by a platform including
Information
scheduled commercial breaks, display or banner ads.
Do not break the
Use all reasonable endeavours to ensure that the Content (as modified or extended
law
from time to time) contains nothing that is defamatory, infringes intellectual
property rights, right of privacy or breaches any statute, regulation or other rule or
law.
Report Content
Give us statistics reports as per our requirements outlined at
usage
https://www.nzonair.govt.nz/funding/resources‐producers/#drawdowns covering
the following periods after go live of the Main Content:
(a) 1 month; and
Official
(b) 6 months;
Each report must be given to us within 1 month of the reporting period.
Make archive
Make the Main Content available to any archive approved by us, if it is selected by
copies available them (the archive will pay reasonable copying costs).
the
Captions and
We support accessibility of funded content for all New Zealanders. If the Main
Audio Description Content is being broadcast, you will notify the Operations Manager of the Media
Access Charitable Trust (Able) when the Main Content is delivered to your Primary
Platform Owner. If captions or audio description files have been created as part of
the Project, a copy of those files must be delivered to the Media Access Charitable
Trust free of charge, for use in any New Zealand broadcast.
Digital Media
At the expiration of all Distribution Agreements, or earlier if agreed by the
Trust
applicable rightsholders, you will make the Main Content (or reasonable excerpts)
under available to the Digital Media Trust on terms and conditions to be agreed between
you and the Digital Media Trust (both acting reasonably).
What we can do
Our own
You grant us (free of charge) the nonexclusive, perpetual and worldwide right to
promotion
exhibit, show or transmit extracts from any Content for our own promotion and
publicity, but not for commercial exploitation.
Released
s 9(2)(a)
– Funding Agreement (2021)
7.
DocuSign Envelope ID: 8611BB5E-371A-42AE-A418-289E424B172C
SCHEDULE 2
GENERAL TERMS
1
Definitions and Interpretation
(e)
Digital Media Trust means:
1.1 In this Agreement, unless the context requires otherwise:
(i) the Digital Media Trust, a charitable trust board
called incorporated under the Charitable Trust Act
(a)
Agreement means this Funding Agreement and all its
1957; or
Schedules.
Act
(ii) an alternative similar organisation with a non‐
(b)
Business Day means any day other than:
profit media focus selected by NZ On Air from time
(i) a Saturday, a Sunday or a public holiday (as
to time.
defined in the Holidays Act 2003) in Wellington or
(f)
Distribution Agreement means any agreement
Auckland; and
between you and any third party in relation to the sale,
(ii) the period between 26 December in any year and
licensing or other exploitation of any Content.
5 January the next.
(g)
Distribution Platform means the distribution platforms
(c)
Content means the content described in the “Content”
described in the “Distribution” section of Schedule 1.
section of Schedule 1, including:
There:
(i) the “Main Content”;
(i) is one “Primary Distribution Platform”; and
(ii) any “Other Content”; and
(ii) may be one or more “Additional Distribution
(iii) any additional content we approve in accordance
Platforms”.
with that section.
(h)
Distribution Rights means the right to sell or license or
Information
(d)
Default Event means:
otherwise exploit, and to authorise the sale licensing or
exploitation of any Content.
(i) you abandon or state your intention to abandon
the Project;
(i)
Force Majeure means:
(ii) the Primary Platform Owner or any Additional
(i) act of God, fire, earthquake, storm, flood, or
Platform Owner withdraws its support to publish
landslide;
any Content, or any funding (excepting NZ On Air
(ii) explosion or nuclear accident;
funding) for any Content is withdrawn in whole or
(iii) sabotage, riot, civil disturbance, insurrection,
in part, with the effect or likely effect that the
epidemic, national emergency (whether in fact or
ability to produce and publish any Content as
Official law) or act of war (whether declared or not);
originally intended is prejudiced;
(iv) requirement or restriction of, or failure to act by,
(iii) we reasonably believe you are unable to ensure
any government, semi‐governmental or judicial
the health and safety of all workers and other
entity
persons in relation to the Project; the
but does not include:
(iv) you breach this Agreement or we reasonably
believe you are likely to breach this Agreement;
(v) any event which the party affected could have
avoided, prevented or overcome by implementing
(v) you breach any other agreement, such that there
reasonable precautions against the event;
is or is likely to be a material adverse effect on any
Content or your ability to meet your obligations
(vi) any event which you could have prevented or
under this Agreement, including where we
overcome but for a prior failure to comply with
reasonably believe:
your obligations under this Agreement;
under
you are unable to deliver any Content by the
(vii) any failure of a contractor to enable you to
Project Completion Date; or
perform your obligations under this Agreement,
any Content differs materially from the
except to the extent that the contractor’s failure is
Proposal; or
itself caused by Force Majeure; or
(vi) you, the Primary Platform Owner or any Additional
(viii) a lack of funds for any reason.
Platform Owner become insolvent, stop or suspend
(j)
Platform Owner means the person described as owner
payment of any debts, have a receiver appointed
of a Distribution Platform in the “Distribution” section
over any assets, or fail to satisfy any final judgement
of Schedule 1. There is:
within 5 Business Days, or we reasonably believe
either of you are at risk of doing any of those things.
(i) a
“Primary Platform Owner” for the Primary
To avoid doubt, a notice received by us under
Distribution Platform; and
section 157 of the Tax Administration Act 1994 or
(ii) an “Additional Platforms Owners” for any
section 43 of the Goods and Services Tax Act 1985
Additional Distribution Platform.
Released
in respect of any party, constitutes reasonable
grounds to believe that that party is or is threatened
(k)
Project means the Project described in this Agreement,
with becoming insolvent.
including in the following sections of Schedule 1:
(i) “Publishing Obligations”.
(ii) “Funding”.
s 9(2)(a)
– Funding Agreement (2021)
8.
DocuSign Envelope ID: 8611BB5E-371A-42AE-A418-289E424B172C
(iii) “Production Activity”.
2.2 You must use our funding only to meet reasonable costs of
(iv) “Other Activity”.
the Project that are specified in the Project Budget and
incurred in accordance with this Agreement. Subject to this
(l)
Project Budget means the budget in Schedule 4, as
Agreement, you must use all other funds secured for the
varied with our prior written approval.
Project in accordance with any agreement for the provision
(m)
Project Completion Date means the project
of those funds.
completion date described in the “Production Activity”
2.3 If our funding has been spent but all Content isn’t finished,
section of Schedule 1.
you will ensure sufficient additional funding is obtained to
(n)
Proposal means your proposal in Schedule 3, as varied
finish the Project in accordance with this Agreement.
Act
with our prior written approval.
2.4 We have no liability to you, or any third party, as a result of,
(o)
Publishing Obligations has the meaning given to it in
or in any way in connection with, this Agreement or the
the “Publishing Obligations” section of Schedule 1.
Project, except only to the extent we have failed to pay an
instalment of funding without reasonable excuse.
1.2 In interpreting this Agreement, unless the context requires
otherwise:
2.5 You must perform your obligations under this Agreement:
(a)
Defined Terms: Words or phrases appearing in this
(a) promptly with due diligence, care and skill;
Agreement with capitalised initial letters are defined
(b) with appropriately skilled, qualified, experienced and
terms and have the meanings given to them in this
supervised personnel.
Agreement.
2.6 You are not relieved of any obligation under this Agreement
(b)
Documents: A reference to any document, including
by subcontracting or delegating it to any third party,
this Agreement, includes a reference to that document
whether directly or indirectly. You are responsible for the
as amended or replaced from time to time.
acts and omissions of any such third party, as if they were
(c)
Gender: Reference to any gender include all genders.
your own acts or omissions.
Information
(d)
Headings: Headings are for guidance only and do not
3
Accounting/Information
affect interpretation.
3.1 If we make a request for information about your solvency
(e)
Inclusions: Reference to “includes” means “includes
and ability to complete the Project, you agree to promptly
without limitation”, and “include”, “included” and
make that information available to us and allow us, at
“including” have corresponding meanings.
reasonable times, to inspect your accounts, books and
records relating to the Project.
(f)
Negative Obligations: A prohibition against doing
something is also a prohibition against permitting,
3.2 You must retain originals of all receipts and invoices for
suffering or causing that thing to be done;
costs incurred for 2 years after the Project has ended, on
Official
the understanding that the Project could be subject to
(g)
Person: Reference to a person includes:
review by us.
(i) a corporation sole, a body of persons, whether
3.3 You will ensure that:
corporate or unincorporated, and any national,
state, regional or local government body or
(a) you will comply with all applicable tax legislation and
the
agency; and
indemnify us against liability to any third party and any
costs we reasonably incur as a result of any non‐
(ii) that person’s representatives, successors and
compliance including any costs associated with the
assigns.
collection of any taxes and any other incidental costs,
(h)
Related Terms: where a word or phrase is defined, its
expenses, penalties or claims. Applicable tax legislation
other grammatical forms have a corresponding
includes all legislation relating to PAYE, withholding
meaning.
tax, fringe benefits tax, employer superannuation
(i)
Singular and Plural: The singular includes the plural
contribution tax, accident compensation levies,
under
and vice versa;
KiwiSaver deductions and contributions and any other
tax or levies imposed upon an employer in respect of
(j)
Statutes and Regulations: A reference to any
its personnel;
enactment, regulation or expression of Government
policy is a reference to that enactment, regulation or
(b) if you are a company, until the Project Completion Date
policy as amended, or to any enactment, regulation or
there will be no change of your ownership or control by
policy substituted for it, and any reference to an
way of sale of the whole or substantial part of your
enactment includes all regulations made under that
assets without our prior written consent. Our consent
enactment.
will not be unreasonably withheld where such change
or sale would not affect your ability to comply with
(k)
Writing: A reference to “written” or “in writing”
your obligations under this Agreement;
includes all modes of presenting or reproducing text in
a form that is legible, permanently visible and capable
(c) the details you provided to us (including in any your
of being retained and stored (which to avoid doubt may
Proposal and Project Budget) are true and correct in all
include email).
respects; and
Released
2
Using our Funding
(d) all reports you provide to us under this Agreement are
true and correct and contain the required information.
2.1 We have no obligation to provide any additional funding for
the Project and you have no expectation of the same.
3.4 Where our funding for the Content, under this Agreement
together with any earlier agreement, is $1,000,000 or more,
s 9(2)(a)
– Funding Agreement (2021)
9.
DocuSign Envelope ID: 8611BB5E-371A-42AE-A418-289E424B172C
you must report any interest earned on the total funding
5.5 You will provide such information as reasonably requested
received for the Project in each cost report and such interest
by us to demonstrate your compliance with your health and
may only be used by you to meet any increase in the Project
safety obligations under this Agreement, including
Budget. If there is no increase in the Project Budget, any
providing updated Health and Safety Confirmations in the
such interest will form part of the under‐spend described in
form of Schedule 5 (Producer’s Health and Safety
the “Funding” section of Schedule 1.
Confirmation).
3.5 We may deduct any withholding tax required to be
5.6 We may, from time to time, at our own cost and on written
deducted from our payments under this Agreement, and
notice to you, audit your compliance with your health and
will forward that withholding tax to the New Zealand Inland
safety obligations under this Agreement. You will do
Act
Revenue as required by law.
whatever is required to facilitate and assist the audit.
4
Intellectual Property
6
Force Majeure
4.1 As between you and us, you will own on their creation all
6.1 Non‐performance by either party of any of its obligations
intellectual property rights in relation to the Content that
under this Agreement will be excused, without liability for
arise under or in connection with this Agreement.
non‐performance, during the time and to the extent that
4.2 You covenant with us that:
such performance is prevented, wholly or substantially, by
Force Majeure, with effect from the time that notice of the
(a) you have obtained and will retain all necessary rights,
Force Majeure has been given in accordance with clause
licences, consents or other authorities with respect to
6.2.
the Project, and which enable the performance of the
Project, and exploitation of all Content, in accordance
6.2 The party claiming the benefit of this clause 6 (Force
with this Agreement and any Distribution Agreement;
Majeure) will, as soon as is practical and to the extent
and
known to that party, give notice to the other party
specifying:
(b) the performance of the Project and exploitation of any
Information
Content in accordance with this Agreement will not
(a) the nature of the Force Majeure;
violate or infringe the copyright, right of privacy, moral
(b) the extent of its inability to perform its obligations
rights nor any other rights of any third party and will
under this Agreement; and
not contain any defamatory material.
(c) the likely duration of such non‐performance.
5
Health and Safety
6.3 The party claiming the benefit of this clause 6 (Force
5.1 You confirm you are aware of your obligations under the
Majeure) will:
Health and Safety at Work Act 2015 and COVID‐19 Public
(a) take all reasonable steps to avoid or remove the Force
Health Response Act 2020.
Majeure and mitigate its effects on the other party;
Official
5.2 In the performance of the Project you agree to comply with:
(b) keep the other party fully informed of such steps as
(a) the Health and Safety at Work Act 2015;
have been taken and are planned; and
(b) the “New Zealand Screen Sector Health and Safety
(c) meet its obligations under this Agreement as far as is
Guidelines” published by ScreenSafe; and
practical given the Force Majeure.
the
(c) the COVID‐19 Public Health Response Act 2020 and all
6.4 Where you are claiming the benefit of this clause 6 (Force
orders under that Act.
Majeure), you will if requested by us in writing:
You also agree to obtain an acknowledgement, from any
(a) refund a reasonable proportion of the funding to us to
person you contract to help in the production of the
reflect any reduction in the value of the Content to us
Content, that they will do the same.
as a result of the Force Majeure; and
5.3 You must consult, co‐operate with, and co‐ordinate health
(b) discuss with us in good faith alternative ways of
and safety activities with all other persons that have health
achieving our objectives for this Agreement (such as
and safety obligations in respect of the production of any
agreeing to vary the required Content in order to
under
Content.
produce something of value despite the Force
5.4 You must report to us, within 24 hours of the incident
Majeure).
concerned, details of any:
6.5 Performance of any obligation affected by Force Majeure
(a) notifiable event (as defined in the Health and Safety at
will be resumed as soon as practicable after the termination
Work Act 2015) related to the Project;
or abatement of the Force Majeure.
(b) incident relating to the Project which results (or could
7
Default
reasonably have resulted or could yet result) in death,
7.1 Our payment of funding does not constitute acceptance
serious injury or serious illness;
that you are complying with your obligations under this
(c) charge or infringement notice against you under the
Agreement, and does not prevent us from exercising our
COVID‐19 Public Health Response Act.
rights arising from your breach of this Agreement at any
time.
We may, at any time on reasonable notice, require a
Released
meeting with you or anyone affected by the event or notice,
7.2 If there is a Default Event, we may give you notice and at
to obtain information and to discuss the event or notice and
least 5 Business Days to remedy the Default Event. If you
your planned responses to it.
don’t remedy it, then we can do any or all of the following
without limiting our other remedies:
s 9(2)(a)
– Funding Agreement (2021)
10.
DocuSign Envelope ID: 8611BB5E-371A-42AE-A418-289E424B172C
(a) Suspend funding under this Agreement and any other
(iii) engage and discharge Project personnel (subject
agreement for us to fund you.
to employment laws);
(b) End this Agreement and stop funding at that time.
(iv) enter into or terminate any contract relating to the
(c) Require repayment of any funding already provided
Project;
under this Agreement (however we will negotiate with
(v) acquire or lease or dispose of equipment and
you about costs you have already incurred up to
other real or personal property relating to the
termination and we may, but are not required to, meet
Project;
those costs).
(vi) make claims under any policy of insurance relating
Act
(d) If you obtained our funding fraudulently, require
to the Project; and
interest calculated at 15% per annum from the date of
(vii) do all such other lawful acts and things as we may
payment to the date the funding is repaid.
determine is reasonably necessary to exercise our
(e) Take over the Project in accordance with clause 8
rights under this clause 8 (Takeover) (including
(Takeover).
executing any power of attorney contemplated by
7.3 You indemnify us against all liability we may have to any
subclause (b) if you fail to do so); and
third party as a result of any Default Event, and against all
(b) you will, if requested by us, execute a Power of
expenses (including legal fees) we incur in relation to that
Attorney in favour of us or any of our officers in respect
liability. Clause 12.5 applies to this indemnity.
of the powers listed in subclause (a).
7.4 Termination of this Agreement will not affect any rights and
8.3 We will not be liable to you, and you will indemnify us
obligations that are intended to survive termination,
against liability to any third party, as a result of any act or
including clauses 3 (Accounting/Information), 4 (Intellectual
omission occurring prior to our exercising our right to take
Property), 5 (Health and Safety), 7 (Default), 8 (Takeover),
over the Project. Clause 12.5 applies to this indemnity.
9 (Ensuring Public Availability), 11 (Confidentiality), 12
8.4 Without prejudice to our remedies, if we take over the
Information
(Disputes), 13 (Audit), 15 (Costs and Expenses), 16 (Notices)
Project under clause 7 (Default), your entitlement to share
and 17 (General), your obligations and our rights in the
in the proceeds of any sale, licensing, distribution or other
“Publishing Obligations” and “Other Activity” sections of
exploitation of any Content will be reduced in such
Schedule 1, and any obligation to share revenue with us or
proportion as is equitable in all the circumstances (having
return funding to us.
regard to the extent which you had met your obligations
8
Takeover
under this Agreement prior to the takeover and the amount
8.1 We will give you written notice under clause 7 (Default) if
of Project funding provided by you, if any).
we take over the Project. If we so take over the Project:
9
Ensuring Public Availability
Official
(a) you will put at our disposal and under our control, all
9.1 You grant us a non‐exclusive, transferable, irrevocable, sub‐
persons, contracts, equipment and other resources
licensable and royalty free licence to copy, modify, publish
employed or used by you in connection with the
and otherwise commercially exploit the Content in
Project, provided that we may elect not to take over
accordance with the Publishing Obligations following a
any contract or obligation of yours which we consider
Rights Notice being issued. This licence:
the
to be unduly onerous (and any costs or liabilities arising
(a) is granted as at the date of this Agreement;
in relation to such contracts or obligations as a result of
our exercising this right of election will be borne by
(b) is limited to New Zealand if the Publishing Obligations
you);
are limited to New Zealand; and
(b) we may at our discretion arrange for the Project to be
(c) ends when your Publishing Obligations have been fully
completed by a third party and, if the Primary Platform
completed to our satisfaction (without a Rights Notice
Owner is listed in Schedule 1 as contributing funding to
being issued).
the Project, we will consult with them to see if they
This clause only applies to third party owned content in the
under
wish to complete the Project; and
Content, to the extent your licence for that third party
(c) we may complete (or arrange for the completion of) or
content permits use by us (provided you entered into the
abandon the Project at our discretion (and we will be
licence in good faith and not in order to avoid the
deemed to do so as your agent on the terms of this
application of this clause).
Agreement).
9.2 You will give us copies of all Content requested in writing by
8.2 To confirm our rights as your agent:
us at any time. Copies must be provided within 10 Business
Days of request. We may only use that Content:
(a) For the purpose of this clause 8 (Takeover), you hereby
irrevocably constitute and appoint us as your attorney‐
(a) following a Rights Notice; and
in‐fact with full power and authority to do any of the
(b) pursuant to the licence granted in clause 9.1.
following in connection with the Project:
9.3 If at any time we consider, acting reasonably, that you:
(i) make withdrawals from and otherwise deal with
(a) have not complied with your Publishing Obligations;
funds in the Project bank account;
Released
and/or
(ii) borrow money; enforce, modify, release,
(b) will not be able to, or will not, comply with your
compromise or terminate any contract or other
Publishing Obligations,
right or obligation of yours relating to the Project;
s 9(2)(a)
– Funding Agreement (2021)
11.
DocuSign Envelope ID: 8611BB5E-371A-42AE-A418-289E424B172C
we may give you written notice (a
Notice to Fix) that
the dispute is not resolved within 5 Business Days of the
requires you to:
issue being referred for resolution (or such longer period as
(c) remedy that non‐compliance; and/or
we both agree), the dispute will be referred to mediation
and the chairperson for the time being of the Resolution
(d) evidence to our satisfaction that you will be able to,
Institute (or his or her nominee) will be requested to
and will, so comply,
appoint a mediator. For contact details see
within two weeks or any longer period specified in the
https://www.resolution.institute/.
Notice to Fix or subsequently agreed by us in writing.
12.2 You and we will continue to perform all of our respective
9.4 We may at any time give written notice to you (a
Rights
obligations under this Agreement whilst the dispute is
Act
Notice) you have not complied with a Notice to Fix to our
referred to mediation, provided that where we consider
satisfaction within the period referred to in the Notice to
that the dispute relates to your material breach of any
Fix. The Rights Notice must:
obligation under this Agreement, we may elect to withhold
payments due to you until the dispute has been resolved to
(a) specify that is it a Rights Notice under this Agreement;
our satisfaction.
(b) describe the Content concerned; and
12.3 You and we will each pay our own costs associated with this
(c) specify the next steps (if any) that we require you to
dispute resolution procedure unless the mediator or other
take in accordance with this Agreement.
dispute resolution co‐ordinator determines otherwise.
9.5 If a Rights Notice is issued then:
12.4 Nothing in this Agreement will preclude you or us from
(a) the license in clause 9.1 permits us to copy, modify,
taking immediate steps to seek equitable relief before a
publish and otherwise commercially exploit the
Court.
Content in accordance with the Publishing Obligations;
12.5 For each indemnity to which this clause applies, we will:
and
(a) promptly notify you if we become aware of any liability
(b) if requested in writing by us, you will promptly give us
Information
covered by the indemnity;
copies of all Content that is in your possession or
(b) not admit or settle any claim for such liability, without
control.
your prior written consent (not to be unreasonably
10
Removal from Companies Register
withheld);
If you are a company and are removed from the Companies
(c) at your request and expense:
Register under section 318 of the Companies Act 1993 then,
(i) allow you to conduct and settle all negotiations
immediately before the Registrar removes the Producer
and litigation resulting from such claim, provided
from the Companies Register, and subject to the provisions
we are consulted on, and may be represented at,
of any existing agreements relating to any Content, the right
the same and you effect our reasonable
Official
to unlimited streaming on the internet subject to any
requirements for the same; and
restrictions or obligations imposed by a Distribution
Agreement will be assigned to and vest in the Digital Media
(ii) provide reasonable assistance with any such
Trust. To the extent permitted by law, you irrevocably
negotiations or litigation; and
constitute and appoint us as your attorney in fact with full
(d) use reasonable endeavours to minimise the liability
the
power and authority to enter into and execute any
and expenses covered by the indemnity.
document giving effect to the assignment. This clause is for
the benefit of, and enforceable by, the Digital Media Trust,
13
Audit
however this Agreement can be amended without their
We have the right at our cost to require the cost reporting
consent.
and processes be audited, to set the scope of the audit and
11
Confidentiality
to appoint an auditor. You will do whatever is required to
facilitate and assist the audit.
11.1 The contents of this Agreement are confidential and will not
be disclosed by either party except:
14
Insurance
under
(a) to people who need to know for the purpose of the
14.1 You will obtain, pay the premiums for, and maintain in force
Project or this Agreement, and who maintain the same
such insurance coverage for the Project as is prudent,
level of confidentiality;
whether the insurance is specific to the Project or general
to your business. If asked to do so by NZ On Air, you will
(b) with both parties’ prior written consent; or
add us as an additional insured party to any such insurance
(c) as required by law.
policies. We may require you to provide copies of any
insurance policy covering the Project at any time.
11.2 You acknowledge that we are subject to and bound by the
provisions of the Official Information Act 1982 and are
14.2 The insurance will be for fully adequate sums having regard
required to treat any request for information under the
to the potential loss.
Official Information Act 1982 in accordance with the
14.3 The proceeds of any claim under any policy of insurance will
provisions of that Act.
first be applied in payment of all reasonable costs and
12
Disputes
expenses in making the claim and secondly to defray the
Released
cost of replacing the property in respect of which the claim
12.1 If any dispute arises between you and us in relation to this
was made. The balance, if any, will be accounted for in the
Agreement, it will be referred for resolution to our Chief
cost report, or if received after the Completion Instalment,
Executive (or the Chief Executive’s nominee) and (if you are
will form part of Net Income.
an organisation) your Managing Director or equivalent. If
s 9(2)(a)
– Funding Agreement (2021)
12.
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15
Costs and Expenses
To avoid doubt, “dispose of” does not include changes to
15.1 This Agreement contains our standard terms and
your directorships or shareholders.
conditions. If you require significant changes to this
17.4 We may assign or novate all of our rights and obligations
agreement, you agree to pay all our reasonable legal fees
under this Agreement to another Government agency that
that may be incurred in connection with negotiating and
takes over our functions in respect of this Agreement,
amending this Agreement. These costs may be paid for out
effective on written notice to you.
of the Project Budget if there are sufficient funds.
17.5 This Agreement can only be amended as agreed in writing
16
Notices
by both you and us.
Act
16.1 All notices to a party must be delivered by hand or sent by
17.6 This Agreement represents the entire agreement between
post, courier, or email to that party's address for Notices on
the parties relating to the Content. This Agreement
the front page of this Agreement.
replaces all prior proposals or agreements and all
16.2 Notices must be signed or in the case of email sent by the
communications between the parties relating to the subject
appropriate manager or person having authority to do so.
matter of this Agreement.
16.3 A notice will be considered to be received:
17.7 Any invalid, illegal or unenforceable provision of this
Agreement will be amended to the minimum extent
(a) if delivered by hand or courier, on the date it is
necessary to ensure that it is not unlawful and, as far as is
delivered;
possible, to ensure that it is consistent with the intent and
(b) if sent by post within New Zealand, on the 3rd Business
effect of the provision. The remaining provisions will be
Day after the date it was sent;
enforceable as if such unlawful provision had not been
included in this Agreement. If the provision is unable to be
(c) if sent by post internationally, on the 7th Business Day
amended without materially altering the intent and effect
after the date it was sent; or
of the provision, it will be severed, and the remaining
(d) if sent by email, at the time the email enters the
provisions enforceable, but only if the severance does not
Information
recipient's information system as evidenced by a
frustrate this Agreement.
delivery receipt requested by the sender and it is not
17.8 Nothing in this Agreement will create or constitute or be
returned undelivered or as an error.
deemed to create or constitute a partnership between you
16.4 A notice received after 5pm on a Business Day or on a day
and us, nor to constitute or create or be deemed to create
that is not a Business Day will be considered to be received
or constitute a party as an agent of the other party for any
on the next Business Day.
purpose except as expressly provided in this Agreement.
17
General
Neither you nor we will have any authority or power
whatsoever to bind or commit, act or represent or hold
17.1 This Agreement can be validly signed by each party signing
itself out as having authority to act as an agent of, or in any
Official
a separate, identical copy of this Agreement and sending it
way bind or commit the other to any obligation except as
to the other party. The signed copies can be printed
expressly provided in this Agreement.
documents or emailed copies.
17.9 Except as expressly provided in this Agreement, this
17.2 Subject to clause 17.3, you will not dispose of (including
Agreement will not and is not intended to confer any benefit
assign, sell, transfer or make subject to any lien, trust,
the on or create any obligation enforceable by any person not a
encumbrance or security interest) any rights or obligations
party to this Agreement.
under this Agreement without our prior written consent.
17.10 Any delay or failure by us to use any right under this
17.3 After the Project Completion Date, unless NZ On Air has an
Agreement will not operate as a waiver of such right. A
income share under Schedule 7, you may dispose of any or
waiver of any breach (which must be writing) will not be or
all of your rights or obligations under this Agreement
be deemed to be a waiver of any other or subsequent
without our prior written consent, provided you:
breach.
(a) notify us of each disposal, in writing and in advance;
17.11 You and we agree to use all reasonable endeavours to
under
(b) before disposing of any obligations under this
execute all such further documents and do all other things
Agreement, you ensure that the person acquiring those
necessary to give effect to the terms of this Agreement.
obligations agrees with us in writing (in a form
17.12 You agree to comply with all laws and regulations in relation
approved by us) to perform those obligations; and
to this Agreement.
(c) you remain jointly and severally liable with them for
any failure to do so.
Released
s 9(2)(a)
– Funding Agreement (2021)
13.
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SCHEDULE 3
YOUR PROPOSAL
Act
Information
Official
the
under
Released
s 9(2)(a)
– Funding Agreement (2021)
14.
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SCHEDULE 4
PROJECT BUDGET
The Project Budget is attached.
Internal and Related Parties
You confirm that the Project Budget clearly identifies all:
Act
(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.
Information
Official
the
under
Released
s 9(2)(a)
– Funding Agreement (2021)
15.
DocuSign Envelope ID: 8611BB5E-371A-42AE-A418-289E424B172C
SCHEDULE 5
PRODUCER’S HEALTH AND SAFETY CONFIRMATION
The following 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
Act
Wellington 6141
PRODUCER’S HEATH AND SAFETY CONFIRMATION
The Broadcasting Commission (“
NZ On Air”) entered into a Funding Agreement with s 9(2)(a)
Limited (“
the
Producer”) whereby NZ On Air agreed to fund the production of content provisionally called “s 9(2)(a)
” (“
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 all PCBUs as
defined in the Act (e.g. contractors) over all 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 will
Information
continue to be followed on the Project; and
(c)
to the extent reasonably practicable, all 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 will 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 all persons connected with the Project.
The Producer also confirms to NZ On Air that it will comply with the COVID‐19 Public Health Response Act 2020 and all orders
Official
under that Act.
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, and any COVID‐19 related charge or infringement notice, must be
reported to NZ On Air within 24 hours.
the
DATED the
day of
2021
SIGNED for and on behalf of s 9(2)(a)
Limited by:
under
_______________________________
Signature
Name:
Title:
Released
s 9(2)(a)
– Funding Agreement (2021)
16.
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Act
s 9(2)(a)
s 9(2)(a)
s 9(2)(b)(ii)
Information
Official
the
s 9(2)(a)
under
Released
s 9(2)(a)
DocuSign Envelope ID: 8611BB5E-371A-42AE-A418-289E424B172C
Act
s 9(2)(a)
s 9(2)(a)
Information
s 9(2)(a)
Official
the
under
Released
s 9(2)(a)
DocuSign Envelope ID: 8611BB5E-371A-42AE-A418-289E424B172C
SCHEDULE 7
INCOME SHARING ARRANGEMENTS
1
DEFINITIONS
2.2 Within one month from signing any Distribution
1.1 Terms defined elsewhere in this Agreement will have
Agreement you will inform us of the agreement. On
the same meaning in this Schedule.
our request from time to time, you will provide us with:
Act
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
Content under the agreement.
(i)
the right to produce (or authorise such
production and exploitation of) projects
In any event, you will distribute all Content properly and
based on any Content and/or the same
in good faith.
themes, situations, concepts, incidents and
2.3 You will:
principal characters and including the right
(a) make every effort to collect all 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 commercially reasonable;
audience;
and
(ii) 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.
Information
(iii) all merchandising, stage, music and
3
SHARING NET INCOME
soundtrack rights in relation to any Content;
3.1 Net Income will be shared between the both of us as
and
follows:
(iv) any right to exploit the Field Footage.
(a) in respect of the Content Rights:
(d)
Content Rights means all rights in any Content in
(i)
until we have fully recouped our funding for
any medium throughout the world (including
all Content under this Agreement and any
video cassettes, videodiscs (including DVDs and
other agreement:
Blu‐rays) and any other devices for reproducing
visual images and sounds which may be played
You and permitted assignees:
75.0%
Official
back by the use of a playback device and intended
Us:
25.0%
for sale or hire to the public for home use), except
(ii) thereafter:
for:
You and permitted assignees:
90.0%
(i)
the rights of any Platform Owner identified
in this Agreement; and
Us:
10.0%
the
(ii) the Ancillary Rights.
(b) in respect of the Ancillary Rights:
(e)
Combined Rights means:
You and permitted assignees:
90.0%
(i)
all Content Rights; and
Us:
10.0%
(ii) all Ancillary Rights.
3.2 You may not assign all or any of your share of Net
Income to the Primary Platform Owner.
(f)
Distributor means a person authorised to sell,
license, distribute and authorise the sale,
3.3 For the purposes of this Schedule, “
Net Income” is the
under
licensing, distribution or other exploitation of any
sum of the following 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
(ii) Production Expenses;
any territory.
(iii) Distribution Expenses; and
(h)
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
insurance, as contemplated by clause 14
2.1 Except to the extent required otherwise by this
(Insurance) of Schedule 2.
Agreement, you will:
(d) The sale of any equipment or other tangible assets
(a) use your best endeavours to maximise Net
purchased out of the Project Budget for the
Released
Income; and
purpose of the production of any Content.
(b) only enter into Distribution Agreements that are
Where:
consistent with proper business practice, on arm’s
length, commercial terms.
s 9(2)(a)
– Funding Agreement (2021)
19.
DocuSign Envelope ID: 8611BB5E-371A-42AE-A418-289E424B172C
(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 collecting 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
equalling up to 30% of Gross Income received by
Content with Screenrights or similar organisation,
the relevant Distributor, or such other amount
you will be deemed to have instructed the
approved by NZ On Air in writing such approval
Act
organisation to provide us with copies of all
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 will be deducted all
(i)
means all 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.
(ii) excludes Royalties and the first $5,000 of
4
REPORTING NET INCOME
Gross Income accruing solely from the
4.1 You will keep proper accounting records of all
exploitation of Field Footage.
transactions carried out in relation to the sale, licensing
(g) “
Delivery Expenses”:
and other exploitation of the Combined Rights and will
produce such records for inspection as may reasonably
(i)
means your direct, actual and reasonable
be required by NZ On Air.
costs that are necessary to deliver any
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
will provide reports to NZ On Air:
Information
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
allocated 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 will be deemed
provided that:
approved;
(c) you must report Net Income within 10 Business
Official
(ii) excludes all salary and overheads, costs
Days of it reaching NZ$10,000 or more; and
relating
to
attendance
at
markets,
preparation of promotional materials for
(d) from five years after the Project Completion Date,
markets and legal costs relating to
reports will only be due where there is Net Income
negotiating a Distribution Agreement.
to report.
the
(h) “
Production Expenses” means direct actual and
4.3 The reports will 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) copies of any statements received from the
(including DVDs), any other devices for
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
intended for home use, books or other
Distribution Expenses (capped and uncapped) and
under
merchandise relating to any Content.
Distributor’s Commission; and
(i)
“
Distribution Expenses” means direct, actual and
(c) a statement of receipts and payments detailing all
reasonable out‐of‐pocket costs of a Distributor
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 allocated 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
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
Released
Distributor, such costs will be deemed approved
5.1 We will 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
s 9(2)(a)
– Funding Agreement (2021)
20.
Document Outline
- To: The Chief Executive NZ On Air
- Signed for and on behalf of Television New Zealand Limited:
- signed in the presence of:
