TERMS AND CONDITIONS – EZY STREAM VIDEO ON DEMAND SERVICE – FEB 2017

By activating your EzyStream Video On Demand service, you are agreeing to the following terms and conditions which protect both Good TV Limited “GOOD TV” and you, “Channel Partner”.

BACKGROUND

A. GOOD TV owns the equipment, intellectual property and know-how required to operate the VOD Service.

B. Channel Partner wishes to operate a Channel under its own name and branding using the VOD Service.

C. Content for the Channel will be provided by Channel Partner with additional Content provided by GOOD TV if this option is selected.

D. The parties further intend that any revenue generated from the sale of Channel Partner Premium Content and Associated Advertising streamed on the Channel will be shared between them according to the pricing document published by GOOD TV from time to time.

E. The parties agree that this document records the terms and conditions of their agreement with respect to the operation of the Channel.

THE PARTIES AGREE AS FOLLOWS:

1. CONDITIONS
1.1 Conditions: By agreeing to establish a Channel, and paying any setup costs associated with that Channel, the Channel Partner agrees to be bound by these Terms and Conditions with respect to the operation of the Channel.

1.2 Best Efforts: Each party covenants to use reasonable efforts and do all reasonable things under its control to satisfy the conditions.

2. TERM & NON-EXCLUSIVITY
2.1 Term: The Terms and Conditions shall remain in force unless earlier terminated by a party in accordance with the rights of termination in clause 13.

2.2 Non-Exclusive: The Channel Partner acknowledges that this Agreement does not give the Channel Partner any exclusive rights to the VOD Service and that GOOD TV may at GOOD TV’s complete discretion enter into arrangements with other parties who wish to use the VOD Service.

3. THE VOD SERVICE
3.1 Channels: In return for payment of a setup fee and ongoing monthly rental charge, GOOD TV shall provide a Channel Partner branded Channel for the streaming and delivery of the Content.

3.2 Channel Branding: The Channel shall be provided in GOOD TV’s standard ‘white-label’ format with logo and colour scheme customisations added according to GOOD TV’s standard table of colours. The Channel Partner will provide logo blocks, banners, fonts and any other graphic materials at their cost as outlined in the Content Policy.

3.3 Domain Name: Channel Partner will at its own cost and in consultation with GOOD TV, register a unique internet domain name to host the Channel. Channel Partner will have and retain registrant rights to the domain name and shall be solely responsible for all costs associated with registration and maintenance of the domain name.

3.4 Commencement of Service: GOOD TV will determine the date for commencement of streaming of the Channel in consultation with the Channel Partner.

3.5 Reporting: GOOD TV shall make every effort to provide the Channel Partner with access to reports to assist the Channel Partner with recording and tracking the use of the Channel by Viewers. Reporting will be constrained by available data sets and specific report requests will incur a charge at an hourly rate as published by GOOD TV from time to time. GOOD TV shall not be required to provide any personal information about any Viewer to the Channel Partner or any other information that is or may be a breach of the Privacy Act 1993 or any other applicable code, standard, regulation or law.

3.6 Service Availability: GOOD TV shall use reasonable endeavours to ensure a Channel is accessible and available to Viewers provided that GOOD TV:

(a) shall not be responsible for planned maintenance periods advised to the Channel Partner in advance or for unplanned outages beyond the reasonable control of GOOD TV including, but not limited to: outages caused by the failure of power or telecommunications links; software failure or act or intervention of any government or regulatory authority; non-supply of Content or supply of Content that does not meet GOOD TV’s technical requirements; or

(b) shall not be responsible for any outage, failure or unavailability to the extent that outage, failure or unavailability is caused by the Channel Partner; and

(c) does not guarantee or warrant that access to a Channel or the VOD Service will be available through all internet service providers or on all consumer devices or internet browsers.  Where Viewer access to a Channel is interrupted or degraded, GOOD TV will use its reasonable endeavours to restore the service as soon as practicable.

3.7 Suspension: GOOD TV may stop or suspend the availability of a Channel or any Content if:

(a) Channel Partner is in breach of any obligation under this Agreement;

(b) it believes the streaming of Content on the Channel does or may infringe the intellectual property rights of any third party or would be in breach of any applicable law or code;

(c) if required or requested to do so by a Studio Partner or by any industry body, regulatory or government authority.

4. CONTENT & PROGRAMMING
4.1 GOOD TV Content: The following provisions apply in relation to the GOOD TV Content:

(a) Subject to the continued payment of the access fee as published by GOOD TV from time to time, and at the sole discretion of GOOD TV, GOOD TV Content may be made available for a particular Channel. The supply of GOOD TV is at all times conditional on the continuing approval of the relevant Studio Partner holding the rights to that GOOD TV Content. Subject to those approvals being obtained and maintained, the Channel Partner may from time to time select the GOOD TV Content it desires to have shown on a Channel in accordance with GOOD TV’s Content Policy,

(b) GOOD TV shall be responsible for obtaining at its cost:

(i) all classifications (if any) required under the Act for GOOD TV Content; and

(ii) all licences, broadcast and other intellectual property rights required for streaming of the GOOD TV Content on the Channel provided that it shall not be a breach of this clause if GOOD TV fails to obtain a Studio Partner’s approval for the streaming of GOOD TV Content on a Channel or if a previously given approval is withdrawn by the Studio Partner.

(c) GOOD TV use all reasonable endeavours to ensure the selected GOOD TV Content is streamed on the Channel but reserves the right to substitute other similar GOOD TV Content for operational reasons.

4.2 Channel Partner Content: The Channel Partner may provide Channel Partner Content for streaming on a Channel and the following provisions shall apply in relation to such Content:

(a) All Channel Partner Content must comply with and be submitted to GOOD TV in strict accordance with the Content Policy.

(b) The Channel Partner shall ensure that it holds:

(i) all licences, broadcast rights and other intellectual property rights required for the streaming of Channel Partner Content on the Channel; and

(ii) all classifications (if any) required under the Act for Channel Partner Premium Content;
and in each case, the Channel Partner shall promptly provide to GOOD TV on request satisfactory evidence that it holds the required classifications, licences and intellectual property rights. Should Channel Partner not hold any necessary classification under the Act for Channel Partner Premium Content, GOOD TV is authorised to submit the relevant Premium Content to the classification office for classification and labelling under the Act and Channel Partner shall pay the standard Charges for that service as specified by GOOD TV from time to time; and

(c) Channel Partner Standard Content shall be made available for streaming at no cost to the Channel Partner up to the number of unique streams as specified by GOOD TV from time to time, and thereafter shall incur the Streaming Fee.

(d) No Streaming Fee shall be payable by the Channel Partner for Channel Partner Premium Content.

4.3 Advertising Content: Unless otherwise agreed in writing, the Channel Partner grants to GOOD TV the exclusive right to insert advertisements and network identifications into the Content streamed on the Channel provided that:

(a) GOOD TV may market and sell advertising on the Channel and Channel Partner may market and sell Associated Advertising. Each party shall be responsible for determining the fees (if any) to be charged for advertising on the Channel sold by that party. It is acknowledged that certain advertising, such as advertisements for Content available on the Channel, advertisements for the VOD Service, other products and services of GOOD TV and any associated person of GOOD TV may not generate any Revenues;

(b) Channel Partner shall be entitled to receive a percentage of the Revenue generated from Associated Advertising sold by GOOD TV as specified in Item 4 of the Schedule;

(c) GOOD TV shall be entitled to receive a percentage of the Revenue generated from Associated Advertising sold by Channel Partner as specified in Item 4 of the Schedule.

(d) Unless otherwise agreed with Channel Partner, GOOD TV shall not insert advertisements in Channel Partner Premium Content.

(e) Associated Advertising supplied by Channel Partner must comply with and be submitted to GOOD TV in accordance with the Content Policy.

5. COMMUNICATIONS & PUBLICITY
5.1 Communications with Channel Partner’s Customers & Supporters: The parties agree to regularly promote the Channel and the VOD Service to Channel Partner’s customer/supporter database both before and after the commencement of the Channel. Unless clause 5.2 shall apply or unless otherwise agreed, all such communications shall be sent using the GOOD TV email platform on behalf of the Channel Partner and shall require the prior approval of both parties (which approval will not be unreasonably withheld or delayed). To facilitate this, the Channel Partner agrees to provide a copy of its customer/supporter mailing list to GOOD TV. GOOD TV undertakes to use that customer/subscriber information only as provided for under this clause.

5.2 Communications with Viewers: Unless otherwise agreed, once a Viewer has subscribed to the VOD Service, GOOD TV shall thereafter be responsible for communications with Viewers regarding the operational aspects of the VOD Service. GOOD TV may communicate with Viewers from time to time at its discretion regarding the Channel, the VOD Service and related matters.

6. REVENUES
6.1 Billing and Revenues: GOOD TV shall have and maintain at its cost suitable billing and payment systems to allow Viewers to purchase Premium Content. Unless otherwise agreed:

(a) GOOD TV shall be responsible for the invoicing and collection of Revenues generated from the sale of advertising (excluding Associated Advertising sold by Channel Partner) and Premium Content on a Channel; and

(b) Channel Partner shall be responsible for the invoicing and collection of Revenues generated from Associated Advertising sold by Channel Partner.

6.2 Collection of Accounts Receivable: Each party shall use its reasonable endeavours to collect Revenue from customers it has invoiced as and when payment falls due. A party may at its discretion discount or write-off any such Revenue for commercial reasons or if it deems the likely cost of collecting that Revenue to be uneconomic.

6.3 Payments:
(a) Channel Partner shall be entitled to a share of the Cash Collections generated from the sale of Associated Advertising sold by GOOD TV and Channel Partner Premium Content on a Channel as agreed in writing from time to time; and

(b) GOOD TV shall be entitled to a share of the Cash Collections generated from Associated Advertising sold by Channel Partner as agreed in writing from time to time.

(c) Payments shall be made in accordance with clause 8.3.

7. CHARGES
7.1 Fees payable by Channel Partner: Channel Partner shall pay to GOOD TV in accordance with clause 8 without set off or deduction:

(a) The title upload as specified by GOOD TV from time to for all Channel Partner Standard Content in excess of the free allowance;

(b) Digital Rights Management (DRM) encoding charges as set out by GOOD TV from time to time, if this option is required by the Channel Partner for any Channel Partner Content.

(c) the Streaming Fee as specified by GOOD TV from time to time if applicable; and

(d) A fee for any technical support requested by or on behalf of Channel Partner and provided by GOOD TV. The technical support fee shall by published by GOOD TV and may be adjusted from time to time under clause 7.2.

(e) A setup and monthly base rental fee to cover use of the service as specifed in writing from time to time.

(f) An iOS and Android app publishing fee and monthly rental as specified in writing from time to time if this option is selceted by the Channel Partner.

(g) An iOS and Android app re-publishing fee will be payable if Channel Partner requests any change that requires the app to be re-submitted to the AppStore. 

7.2 Adjustments: From time to time GOOD TV may review and adjust any or all of Charges. GOOD TV will provide Channel Partner with not less than 30 days’ notice of any changes to the Charges.

8. REPORTING & PAYMENT
8.1 Monthly Reports: Where required as part of the obligations under this set of Terms and Conditions and within five (5) Business Days of the end of each calendar month, each party shall provide the other with a Report for the previous month and will promptly answer any questions from the other party in relation to that Report.

8.2 Right to Dispute and Audit: If a party considers that there is any error or irregularity in a Report then it may, within thirty (30) days of the date of the relevant Report (time being of the essence), it may give notice to the other party that the Report is disputed. The party giving notice shall provide sufficient particulars of the items and amount(s) in dispute so as to enable the other party to promptly assess and respond. The parties will engage in good faith to resolve any such dispute but if the parties are unable to resolve the dispute within 10 Business Days, the party who has given notice may, at its cost and within a further period of 10 Business Days (time being of the essence) appoint an independent auditor to examine the Report and the relevant source documents and records. If
(a) In the opinion of the independent auditor, the Report or the source records or documents are inaccurate to the extent of disclosing an understatement of Revenues or Cash Collections for the relevant period of five percent (5%) or more then:

(i) the auditor’s reasonable fees and expenses shall be reimbursed by the party providing the incorrect Report; and

(ii) the party providing the incorrect Report shall promptly pay the outstanding proportion of the Cash Collections due to the other party together with interest at 12% from the date payment was due until the date of actual payment.

(b) In the opinion of the independent auditor, there is no understatement of Revenues or Cash Collections, the party who appointed the independent auditor shall pay the other party’s reasonable administration costs in relation to the audit.

(c) If a party does not give written notice of a dispute within 30 days of the date of a Report or, if there is a dispute, does not appoint an auditor within a period of 20 Business Days from the date the dispute is notified (time being of the essence), that Report will be deemed to have been accepted by the recipient as being correct and accurate and no dispute may be raised thereafter by that party in relation to that Report.

8.3 Payments: Any sum specified as being payable in a Report shall be paid by the 20th of the month following the month to which the Report relates. The party to whom a payment is due shall provide the payer with a valid GST invoice for the relevant amount. If the amount of any payment is the subject of a dispute or audit under clause 10.2, the undisputed amount shall be paid in accordance with this clause 10.3. GOOD TV may set off or deduct from any payment due to Channel Partner, any Charges or other amounts payable by Channel Partner to GOOD TV under this Agreement.

8.4 Default Interest: Without prejudice to any other rights and remedies of either party in respect of non-payment, if any amount payable by a party to the other under this Agreement is unpaid after the due date for payment and is not disputed under clause 8.2, or is not otherwise subject to dispute resolution under clause 15, those moneys (“Overdue Moneys”) may, at the option of the unpaid party, incur interest on a daily basis at the rate of 12% per annum. The party in whose favour a dispute is resolved may, at its option, be entitled to interest on the amount held to be owing to it from the due date for payment for each day that such amount remains unpaid, calculated at the same rate.

9. INTELLECTUAL PROPERTY
9.1 Trademark Licences:

(a) GOOD TV grants the Channel Partner a non-exclusive, non-sublicensable, non-transferable, royalty-free, license to use and display solely those trademarks, service marks and/or logos specified in writing by GOOD TV (“Marks”) for the sole purpose of advertising and promoting the Channel. All use of the Marks shall be in accordance with GOOD TV’s then-current trademark usage guidelines.

(b) Channel Partner grants GOOD TV a non-exclusive, royalty-free, license to use any trade name, trademark, service mark, logo or other name or mark that is owned or licensed by Channel Partner (the “Channel Partner Marks”) in or in connection with the marketing, advertisement or promotion of the Channel or the VOD Service.

(c) Neither party shall take any action that would impair, denigrate, convey ownership in, tarnish or damage the other party’s rights with respect to the Marks or the Channel Partner Marks, as applicable, or the products or services of the other party.

9.2 Streaming Licence: Channel Partner grants GOOD TV the royalty-free, non-exclusive, right and license during the term of this Agreement to transmit, reproduce, display publicly, perform, stream digitally and distribute by way of the VOD Service, Channel Partner’s Content, in whole or in part, for any and all purposes express or implied under this Agreement and to the full extent permitted by law.

9.3 Ownership of IP: All intellectual property rights in and associated with the VOD Intellectual Property are and remain the exclusive property of GOOD TV and its licensors. Channel Partner will not acquire any proprietary rights to or ownership interests in or goodwill in relation to the VOD Intellectual Property.

9.4 No Challenge: Channel Partner shall not during the term or following expiration or termination of this Agreement:

(a) contest or challenge the proprietorship of GOOD TV or its licensors in any part of the VOD Intellectual Property or any development, modification or enhancement thereof and shall not at any time do or suffer to be done any other act or thing which may in any way impair the rights of GOOD TV or its licensors in the VOD Intellectual Property; and

(b) (except to the extent permitted under this Agreement) use or seek registration of any trade mark, trade name, domain name, personalised number plate, get up, colour scheme, labelling or packaging design, or company or business name which incorporates or includes, or is substantially identical to, or deceptively or confusingly similar to, any of the Marks, GOOD TV ‘s get up, colour scheme, designs, or any other VOD Intellectual Property.

9.5 Third Party Infringements: GOOD TV shall be solely responsible for prosecuting or defending any claims with respect to the VOD Intellectual Property. If Channel Partner becomes aware of any claims against or infringements of any rights associated with any of the VOD Intellectual Property or any part thereof then Channel Partner shall forthwith notify GOOD TV. In relation to any proceedings or claims to protect or defend the VOD Intellectual Property or any part thereof, Channel Partner if required by GOOD TV shall, at the cost of GOOD TV render all reasonable assistance as may be requested by GOOD TV. GOOD TV shall have the sole right to control and direct the investigation, preparation, defence and settlement of such proceeding or claim.

10. WARRANTIES AND INDEMNITIES
10.1 Warranties: Each party represents and warrants to the other that:

(a) the transmission, distribution and performance of the Content supplied by that party on the Channel shall not violate or infringe any third party intellectual property rights or any publicity or privacy right;

(b) Content supplied by that party (inclusive of audio visual recordings, any underlying musical compositions, literary or artistic works) is either owned by and original to that party or has been lawfully obtained and licensed from any and all applicable third parties;

(c) It has authority or has obtained all necessary approvals or licenses, and has made or will make any required payments, for the storage, reproduction, distribution, exploitation, performance, transmission and retransmission of Content supplied by that party or any part of it over the VOD Service in accordance with this Agreement, and that such authority, approval or license, if any, is current and in full force and effect;

(d) Content it has supplied:

(i) meets the technical standards and any policies of GOOD TV

(ii) does not contain material that is defamatory, obscene or otherwise unlawful; and

(iii) otherwise complies with all applicable laws.

(e) no litigation is pending or threatened with respect to Content supplied by that party or any part of it; and

(f) it shall inform the other party in writing immediately upon receipt of notice from any third party alleging that Content it has supplied pursuant to this Agreement infringes any third party intellectual property or is otherwise in breach of this Agreement or any applicable law.

10.2 Indemnities: Each party indemnifies and holds the other harmless from all claims, obligations, liabilities, losses, damages, penalties, costs and expenses suffered or incurred by that other party (including legal fees on a solicitor and own client basis) as a result of or consequent on any breach by the first party of any of the warranties in clause 10.1.

11. CONFIDENTIALITY
11.1 No Disclosure: No party may reveal any Confidential Information to any third party other than:

(a) as required by law;

(b) in good faith and in proper furtherance of the objects of this Agreement;

(c) to those of its employees, officers, professional or financial advisers, bankers and associated persons as reasonably necessary but only on a strictly confidential basis;

(d) to enforce its rights or to defend any claim or action under this Agreement; or

(e) information already in the public domain through no fault of that party.

11.2 No Unauthorised Use: Each party shall not make use of or assist any third party to utilise or benefit from any Confidential Information except in compliance with that party’s obligations under this Agreement. Notwithstanding the foregoing, GOOD TV may use Confidential Information to develop and improve the VOD Service and its business.

12. EXCLUSION AND LIMITATION OF LIABILITY
12.1 Exclusion: Nothing expressed or implied in this Agreement will confer any liability on the other party in respect of:

(a) Any consequential or indirect loss; or

(b) Loss of profits, revenue, business opportunity, goodwill and/or anticipated savings.

12.2 Directors and Officers: No director or officer of a party shall have any personal liability to the other party in any way connected with this Agreement or with the Business before, during or after the Term and the other party shall not make any claim or issue any or proceedings under any statute, regulation or rule of law for loss or damage by that party or any third party against any such director or officer.

12.3 Liability Cap: Except for amounts actually payable by a party under clauses 7 and 8 and liability for any breach of clauses 9, 10, or 11 the total and aggregate liability of a party and its officers, directors, employees and agents (whether in contract, tort (including negligence) or otherwise) to the other under, or related to or arising from, this Agreement in any way, shall in no circumstances exceed the sum of $50,000.

13. TERMINATION
13.1 Termination for Cause: Either party may terminate this Agreement immediately if, in relation to the other party, any of the following events occur to that party:

(a) it enters into any compromise or arrangement with its creditors;

(b) a receiver or an administrator is appointed over any part of its assets or undertaking or an administrator is appointed over all or any part of its assets or undertaking;

(c) has any judgment entered against it and fails to satisfy such judgment within 14 days;

(d) a liquidator is appointed in respect of that party;

(e) being a natural person, commits any act of bankruptcy; or

(f) commits a breach of this Agreement and, if the breach is capable of being rectified, fails to rectify such breach within 15 Business Days of written notice from the party requiring rectification.

13.2 Termination without Cause: Either party may terminate this Agreement without cause at any time by giving three (3) months’ notice to other party.

13.3 Consequences of Termination: Upon termination or expiry of this Agreement for any reason:

(a) GOOD TV shall:

(i) remove all Channel Partner logos, branding and other intellectual property from each Channel and cease streaming of each Channel;

(ii) return to Channel Partner without retaining any copies, all Channel Partner Content, Confidential Information and other intellectual property belonging to Channel Partner and/or its licensors;

(iii) Return to Channel Partner Viewer data and information provided by Channel Partner; and

(iv) continue to pay to Channel Partner its proportion of Cash Collections generated prior to the date of expiry or termination, such payments to be made if and as required by clause 8.

(b) Channel Partner shall:

(i) Immediately cease all direct or indirect use of the Channel, Confidential Information belonging to GOOD TV and the VOD Intellectual Property;

(ii) Immediately cease to market and associate itself with GOOD TV and the VOD Service and shall remove all references to GOOD TV, the VOD Service or the Channel from all Channel Partner websites, marketing, promotional and other materials;

(iii) Promptly return to GOOD TV without retaining any copies, all GOOD TV Content, Confidential Information belonging to GOOD TV and all other intellectual property belonging to GOOD TV and/or its licensors;

(c) GOOD TV shall retain ownership of all Viewer data and other Viewer information collected by the VOD Service other than the data specified in clause 13.3(a)(iii).

13.4 Survival: Termination of this Agreement shall not affect the rights and liabilities of the parties in relation to any matter arising prior to termination.

14. NOTICES
14.1 Every notice, request or other communication under this Agreement shall be deemed to have been properly given if in writing and served personally on the party to whom it is addressed or sent by post or facsimile or by e-mail addressed as set out in Item6 of the Schedule.

14.2 All notices, requests or other communications under this Agreement shall be effective when received by the addressee. The addressee shall be deemed to have received:

(a) A notice sent by domestic post five days after the date on which the notice was posted;

(b) A facsimile transmission one hour after the time recorded on the transmitting machine unless the transmission result report of the sender indicates faulty or incomplete transmission,

(c) Notice delivered by hand at the time of receipt at the address shown on the notice by any officer or employee of the party to which it is addressed or any other person authorised by such party to receive the same or if at the time of delivery there are no such persons present at such address then from the date the notice is left at the address by the person delivering the same;

(d) A notice sent by e-mail:

(i) in the case of an addressee who has designated an information system for the purpose of receiving electronic communications, at the time the electronic communication enters that information system; or

(ii) in any other case, at the time the electronic communication comes to the attention of the addressee.

14.3 The address of any party for notices, requests or other communications may be changed by notice in writing given at any time to the other.

15. DISPUTE RESOLUTION
15.1 Disputes: Subject to the final subclause of this clause 15, where any question, dispute or difference (“dispute”) arises between the parties concerning or in any way arising out of this Agreement or the performance of either party of this Agreement, or of the circumstances, representations, and conduct giving rise thereto, no party may commence any court or arbitration proceedings relating to any question, dispute or difference unless that party has complied with the procedures set out in this clause.

15.2 Initial Consultation: where any dispute arises between the parties concerning or in any way arising out of this Agreement or the performance of either party of this Agreement, or of the circumstances, representations, and conduct giving rise thereto, the party initiating the dispute (“first party”) must provide written notice of the same to the other party (“other party”) and the parties must meet forthwith and negotiate in good faith with a view to resolving the dispute.

15.3 Referral to Mediation: If the parties are unable to resolve the dispute by discussion and negotiation within 10 Working Days of receipt of the written notice from the first party, then the parties must immediately refer the dispute to mediation.

15.4 Conduct of Mediation: The mediation must be conducted in terms of the LEADR New Zealand Inc Standard Mediation Agreement. The mediation must be conducted by a mediator and at a fee agreed by the parties. Failing agreement between the parties, the mediator will be selected and his/her fee determined by the Chair for the time being of LEADR New Zealand Inc.

15.5 Arbitration: If the dispute remains unresolved after the mediation, then the dispute must be submitted to the arbitration of a single arbitrator agreed on between the parties, or in default of agreement to be nominated by the President of the New Zealand Law Society or his or her nomine. The arbitration will be conducted in accordance with the Arbitration Act 1996 and the provisions of the Second Schedule of the Act will apply. The parties reserve the right to appeal to the High Court on any question of law arising out of an award.

15.6 Urgent Interlocutory Relief: Nothing in this clause will preclude or prevent either party from taking immediate steps to seek urgent interlocutory relief before an appropriate court.

16. NO ASSIGNMENTS
16.1 Restriction: No party may assign or be relieved of its rights or obligations under this Agreement without the prior written consent of the other party.

17. GENERAL
17.1 Negation of Partnership: Nothing contained in this Agreement shall be deemed to constitute the parties as partners, or except as otherwise expressly provided in this Agreement, to constitute one party the agent or legal representative of any other party. No party shall have any authority to act or to assume any obligation or liability on behalf of the others except to the extent expressly provided in this Agreement.

17.2 Entire Agreement: This Agreement contains all of the terms, representations and warranties made between the parties and supersedes all prior discussions and agreements covering the subject matter of this Agreement.

17.3 Further Assurances: The parties must each sign, execute, procure, pass and do all such further documents, acts, matters, resolutions and things as may be necessary or desirable for effecting the transactions contemplated by this Agreement.

17.4 Amendments: No amendment to this Agreement will be effective unless it is in writing and signed by all the parties.

17.5 Waiver: No exercise or failure to exercise or delay in exercising any right or remedy will constitute a waiver by that party of that or any other right or remedy available to it.

17.6 Non-Merger: The agreements, obligations and warranties contained in this Agreement will not merge on completion of the transactions contemplated by it but will remain in full force until satisfied.

17.7 Partial Invalidity: If any provision of this Agreement or its application to any party or circumstance is or becomes invalid or unenforceable to any extent, the remainder of this Agreement and its application will not be affected and will remain enforceable to the greatest extent permitted by law.

17.8 Time of Essence: Time will be of essence in the performance by any party of its obligations under this Agreement.

17.9 Rights Cumulative: The rights of the parties under this Agreement are cumulative and are not exclusive of any other rights and remedies available to any party.

17.10 Governing Law: This Agreement shall be governed by and construed according to the laws in force in New Zealand. The rights and remedies of the parties under this Agreement shall be determined in accordance with such laws and the parties irrevocably submit to the exclusive jurisdiction of the Courts of New Zealand.

17.11 Survival: Those clauses which by their nature are intended to survive termination of this Agreement, including clauses 9, 10, 11, 12, 13.3, 15 and this clause 17.11, shall survive termination of this Agreement.

18. INTERPRETATION

18.1 In this Agreement, unless the context otherwise requires:

“Act” means the Films, Videos, and Publications Classification Act 1993 and the Films, Videos, and Publications Classification Regulations 1994.

“Agreement” means this agreement as amended from time to time and including any annexures and schedules thereto.

“AppStore” means either the Apple AppStore or Google PlayStore or any other device application repository which may be in use from time to time.

“Associated Advertising” means advertising which is linked directly to Channel Partner Content by being streamed during or immediately before or after Channel Partner Content.

“Streaming Fee” means the sum specified in writing by GOOD TV from time to time for the online-streaming of Channel Partner Standard Content over the limit specified by GOOD TV in wiritn gfrom time to time.

“Business Day” means any day (other than Saturday or a Sunday) on which registered banks are open for business in Auckland, New Zealand.

“Cash Collections” means those Revenues actually paid to GOOD TV during a calendar month less any reasonable costs incurred by GOOD TV in collecting those Revenues such as debt collection fees.

“Channel” means a dedicated channel on the VOD Service which provides Viewers with access to the Content.

“Charges” means the Streaming Fee and the other charges payable by the Channel Partner as agreed in writing from time to time.

“Commencement Date” means the date on which the Channel goes live.

“Confidential Information” means information of any kind in any form or state capable of audio or visual representation which relates to: this Agreement and its subject matter; a party to this Agreement and any business or undertaking operated by that party; a party’s shareholders, directors, suppliers, customers, agents, employees and contractors; and information about the customers, suppliers, operations, finances, systems, business processes and intellectual property of a party.
“GOOD TV Content” means audio visual program elements supplied by GOOD TV for streaming on a Channel and which may include Premium Content.

“Channel Partner Standard Content” means audio visual program elements supplied by the Channel Partner for streaming on the Channel for which no fee is payable by the Viewer.

“Channel Partner Premium Content” means audio visual program elements supplied by the Channel Partner for streaming on a Channel for which the Viewer is required pay a fee in order to have access to

“Channel Partner Content” means those audio visual program elements supplied by the Channel Partner including Channel Partner Standard Content, Channel Partner Premium Content and Associated Advertising supplied by the Channel Partner.

“Content” means GOOD TV Content and Channel Partner Content.

“Content Policy” means GOOD TV’s policies as advised to the Channel Partner from time to time providing for:

(a) the selection of GOOD TV Content by the Channel Partner;
(b) the format and technical requirements for Channel Partner Content and Associated Advertising; and
(c) the process for submission, approval and delivery of Channel Partner Content and Associated Advertising.

“CPI” means the Consumer Price Index (All Groups) published by Statistics New Zealand or other government agency and any revised, replaced, or substituted index.
“GST” means Goods and Services Tax pursuant to the Goods and Services Tax Act 1985.
“parties” means the parties from time to time to this Agreement and “party” means any one of the parties.

“Premium Content” means Content for which the Viewer is required to pay a fee in order to have access to.

“Report” means either or both of the following:

(a) a statement prepared by GOOD TV which shall include a complete and accurate record for the previous calendar month of:

(i) the Charges incurred (if any);

(ii) the Revenues earned from the sale of Associated Advertising by GOOD TV and Channel Partner supplied Premium Content (if any); and

(b) a statement prepared by Channel Partner which shall include a complete and accurate record for the previous calendar month of the Revenues earned from the sale of Associated Advertising by Channel Partner.

“Revenues” means the gross income generated from the sale of Associated Advertising and Premium Content on the Channel excluding: GST and any other applicable taxes; payment gateway fees; credit card merchant charges and fees; and genuine customer refunds.

“Streaming” means the supply of audio visual material to a Viewer via the VOD service including by real-time streaming or the download of the audio-visual material to the Viewer’s device.

“Studio Partner” means an owner or licensor of intellectual property rights in audio visual content that has entered into an agreement with GOOD TV for the streaming of audio visual materials on the VOD Service and “Studio Partners” has a corresponding meaning.

“Viewers” means members of the public who use the Channel to view Content.

“VOD Intellectual Property” includes patents, registered designs, trade marks, domain names, copyright, rights in computer software and databases, rights in inventions, Confidential Information, know-how (including, without limitation, concepts, methods, processes, techniques) and trade secrets and all other intellectual property rights in any form, in each case whether registered or unregistered (including applications for the grant of any of the foregoing), which may subsist anywhere in the world in or relating to the VOD Service or the business of GOOD TV.

“VOD Service” means an on-demand television service to be operated by GOOD TV and accessible to the public by means of the internet protocol and/or such other methods of access as GOOD TV may determine from time to time.

18.2 In this Agreement, unless the context otherwise requires, any reference to a “person” includes any individual natural person, company, corporation, partnership, joint venture, association (whether corporate or unincorporated), trust, organisation, Government department, Minister of the Crown, state or agency of a state (in each case, whether or not having separate legal personality), and includes a person’s executors, administrators, successors and assigns; and

18.3 A person is an “associated person” if they are deemed to be an associated person pursuant to Subpart YB of the Income Tax Act 2007;

18.4 Also for purposes of the interpretation or construction of this Agreement, unless the context otherwise requires:

(a) Headings are inserted in this Agreement for convenience only and shall not affect the construction of this Agreement;

(b) Words importing the singular include the plural and vice versa;

(c) Words importing any gender include the other genders;

(d) Reference to a person includes a reference to a body corporate, to a Governmental Agency and to an unincorporated body of persons;

(e) or this Agreement expressly provides otherwise, references to “$” or “dollars” are to the lawful currency of New Zealand;

(f) All references to statutes and laws shall mean and include all statutes and laws amending, adding to, consolidating or replacing the same from time to time; and

(g) Reference to a party or other person includes a reference to a successor, permitted assign, executor, administrator and other representative of such party or person.

(h) The word “includes” in any form is not a word of limitation.