These terms and conditions (“T&Cs”) apply to the provision by Agency to Client of certain Services, as described in a Media Buying Authority order (“MBA”), a credit application or Scope of work which references these T&Cs (“Authorising Document”), which together with these T&Cs shall form an agreement between the parties (“Agreement”).  In the event of any conflict or inconsistency, the documents shall prevail in the following order: (i) an Authorising Document; and (ii) these T&Cs.

DEFINITIONS AND INTERPRETATION 

Terms not defined in these T&Cs will have the meanings set out in the applicable Authorising Document. In addition, the following terms shall have the following meanings:

Affiliate” means, in relation to either party, any of the following: (a) companies directly or indirectly belonging to or controlled by that party through management appointment or otherwise; (b) companies directly or indirectly belonging to or controlled by companies which directly or indirectly own or control that party; and (c) any companies having entered into an affiliation agreement with that party or the above-referred companies. “Control” means the power of an entity to secure that the affairs of another are conducted in accordance with its wishes and "controlled" shall be construed accordingly;

Agency” means the Dentsu Aegis Network agency stated on the Authorising Document and any Agency Affiliate involved in providing the Services.

Agency Data” means: all (i) data and databases owned by or licensed to Agency or Agency Affiliates; and (ii) data and databases collected, developed, created, generated or derived (“Created”) by Agency or Agency Affiliates in relation to or as a by-product of the Services or in connection with any tools, methodologies, media rates, know-how or technology used by Agency in the performance of this Agreement. Agency Data includes without limitation: all (i) data Created as a by-product or combined with Client Data, Agency Data or Third Party Materials; and (ii) performance or campaign media results relating to the Services. For the avoidance of doubt, Agency Data does not include Third Party Materials or Client Data;

Agency Materials” means: (i) Materials owned by or licensed to Agency or Agency Affiliates; and (ii) Materials developed, created or acquired by or on behalf of Agency or Agency Affiliates in the course of providing the Services, and in each case the derivatives of such Materials.  For the avoidance of doubt, Agency Materials includes Agency Data but does not include Client Materials or Third Party Materials;

Associated Creative Services” “Associated Creative Services” means the services provided by Agency to the Client which are associated with the provision of Media Services or Creative Services and are agreed in an Authorising Document and may include any of the following:

  1. The sourcing, negotiation and management of television, radio, print, cinema, online and event sponsorship and promotional opportunities for the Client;
  2. Partnerships and promotions and/or production in conjunction with Media Owners, other brands, talent and third parties,

Including all associated: 

  • procurement of talent;
  • procurement of third party rights, clearances, consents and authorisations;
  • procurement of production;
  • operation of competitions and promotions;
  • prize fulfilment;  
  • content development and production;
  • app, software and website (including microsite) design and development by third parties;

Business Day” means any day other than a Saturday, Sunday or a bank or public holiday in Agency's principal place of business;

Cancellation Charges” has the meaning set out in clause 5.5;

Charges” means (i) the Fees; and (ii) any other costs and/or commissions and expenses payable in connection with the Services (including any third party expenditure paid or payable by Agency on Client’s behalf);

Client Data” means data directly or indirectly prepared and provided to the Agency by the Client in connection with the Services, including Client Personal Information (as defined in the Privacy Act) and Results Data. For the avoidance of doubt, Client Data does not include Third Party Materials or Agency Data;

Client Materials” means Materials provided by or on behalf of Client to Agency (or provided to such third parties as Agency may nominate to receive such Materials from time to time, including without limitation Media Owners), in connection with this Agreement (including without limitation Client's name, logo and trade marks, keywords requested by Client, and any third party materials provided by Client to Agency in connection with this Agreement), including Client Data;

Confidential Information” has the meaning set out in clause 14.1;

Creative Services” means the services in relation to the creation of advertising content by Agency for Client, which are agreed in an Authorising Document;

Deliverables” means the deliverables described in each Authorising Document (where applicable) but specifically excluding tools, platforms and methodologies used by Agency to provide the Services and/or deliverables;

Fees” means the fees invoiced and payable by Client as set out in each Authorising Document;

Gross Media Expenditure” means the amount of a Media Owner’s charges for placing advertising in the media prior to deducting Standard Agency Commission;

Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks and service marks, trade names, domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and the right to be granted renewals or extensions of, and rights to claim priority from, these rights and all similar or equivalent rights or forms of protections which subsist or will subsist, now or in the future, in any part of the world;

Materials” means any graphic design, copy writing, animation, sound production, video, graphic production, html, JavaScript or other website code, software, data, databases, keywords, links, cookies, pixels, tags, locally shared objects, marketing strategy documents, advertising materials and other creative or marketing materials;

Media Owner” means a third party who sells media space and/or time to Agency;

Media Services” means the planning of advertising campaigns and the purchasing of media time and space, as detailed in an Authorising Document and one or more media plans;

Net Media Expenditure” means the amount of a Media Owner’s charges for placing advertising in the media after deducting Standard Agency Commission;

"Privacy Act" means the Privacy Act 1993;

Project” means any project(s) agreed between the parties from time to time under which Agency is to perform Services and supply Deliverables to Client, as more fully described in an Authorising Document and/or approved quotation, estimate or MBA;

Results Data” has the meaning set out in clause 4.1(ii);

Services” means the services to be provided by Agency to Client pursuant to this Agreement, as set out in an Authorising Document (which may include Media Services, Creative Services or Associated Creative Services and be on an ongoing basis or on a Project basis);

Standard Agency Commission” means the standard commission of Gross Media Expenditure from a Media Owner in relation to certain media (“Commissionable Media”) that accredited media agencies are entitled to, which is usually recognised as a discount on the invoices the Media Owner provides to a media agency;

Scope of Work” or “SOW” shall mean any scope or statement of work agreed by the parties, which includes an approved media plan, estimate or quote for any campaign or Project;

Territory(ies)” means the territory(ies) agreed between the parties in an Authorising Document; and

“Third Party Materials” means Materials owned by a third party (excluding, for the avoidance of doubt, Agency Materials and Client Materials).

AGENCY’S ROLE

Client hereby appoints Agency to provide, and Agency agrees to provide, the Services to Client in the Territory.

Agency will provide the Services: (a) with professional care and skill; and (b) in accordance with the terms of this Agreement.

Client will not obtain or use services from any third party that are the same as or similar to the Services during the Term.

If Client requests Agency or Agency Affiliate to provide services other than or in addition to the Services (“Additional Services”), the parties agree that the Additional Services may be subject to separate terms and conditions, including commercial terms. Where the Additional Services include programmatic trading services to be provided by Amnet, such services shall be treated as services provided by an independent third party from Agency and the provision of such services shall be solely upon the terms and conditions set out at https://www.amnetgroup.com/terms/newzealand/newzealandterms.pdf.

CLIENT RESPONSIBILITIES

Client will cooperate with Agency in all aspects relating to the Services, including, without limitation: (i) giving Agency clear briefings and providing assistance and/or evidence where required in relation to Client Materials or its products; (ii) where Agency manages Client’s advertising accounts, including but not limited to Google DoubleClick accounts, giving Agency unimpeded access to such accounts and associated data (“Results Data”); and (iii) approving all Deliverables.

Client will be responsible for making all arrangements necessary for it to access, receive and utilise the Services and the Deliverables.

If Agency’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client, its agents, subcontractors, consultants or employees, such failure or delay in performance on the part of Agency shall not constitute a breach of this Agreement and Agency shall not be liable for any costs, charges or losses sustained or incurred by Client that arise directly or indirectly from such failure or delay.

PERFORMANCE OF THE SERVICES

The parties shall set out Services relevant to campaigns or specific engagements in Scopes of Work.

Before executing any advertising idea, plan, program or campaign, Agency shall obtain Client’s approval. In executing an approved idea, plan, program or campaign, Agency shall obtain Client’s approval for copy, layouts, artwork, proofs, radio scripts, TV storyboards, scripts and answer prints, and other Material that Agency proposes to use; and schedules showing the times when, and media through which, it is proposed that such Material be presented (the “Approval Items”).

Upon receipt of the Approval Items, Client shall, as soon as reasonably practicable (taking into account any campaign deadlines agreed with Agency), notify Agency as to whether it approves or rejects the Approval Items. Where it rejects the Approval Items, Client shall cooperate with Agency and provide a full explanation as to the reason for the rejection. Where Client does not confirm whether it approves or rejects the Approval Items within a period of 5 Business Days, or where it starts using any Approval Items, such items will be deemed approved by Client with immediate effect. Agency shall promptly resubmit rejected Approval Items, which will then be subject to the approval process described in this clause. Any delay in approvals may result in additional third party costs for which Client shall be responsible.  Agency shall be entitled to order, incur required expenditure and resource costs, contract, execute or otherwise arrange for the advertising idea, plan, program or campaign upon receiving the Approval Items.

Client may request Agency to cancel or amend any plans, schedules or work in progress forming part of the Services. Agency will use reasonable efforts to comply with any such request provided that Agency is able to do so within its contractual obligations to third parties.

In the event of any such cancellation or amendment, Client shall promptly pay to Agency: (a) Agency's Charges incurred in relation to the cancelled or amended Services (Fees will be calculated on a pro rata basis for the period up to the effective date of cancellation or amendment); (b) any charges, expenses or additional costs paid or payable by Agency in relation to the cancellation or amendment (including without limitation retrospective rate adjustments, cancellation charges or lower discounts from third parties); and (c) any cancellation fee specified in an Authorising Document(together, “Cancellation Charges”).

Where a Media Owner levies late copy charges against Agency and such charges do not result from the negligent or wilful act or omission of Agency, Client shall immediately upon presentation of an invoice reimburse the amount of such late copy charges to Agency.

Where applicable, it is further expressly understood and agreed between both parties that as part of Agency’s provision of Media Services and Associated Creative Services, while Agency undertakes to use commercially reasonable endeavours: (i) in the preparation of any estimated and target figures (including those related to search engine optimisation); (ii) to prevent the display of Client advertising on websites of, or in proximity to content that is of, a pornographic, defamatory, obscene or illegal nature (“Objectionable Display of Client Advertising”); and (iii) to prevent any fraudulent traffic in relation to Client advertising, these are matters which are ultimately beyond the control of Agency, and hence no warranties are given by Agency as to: (A) the accuracy of such estimates or targets, such figures actually being met or user interactions with that advertising once it appears; (B) the prevention of the Objectionable Display of Client Advertising (Agency will promptly take steps to remove any Objectionable Display of Client Advertising upon becoming aware of the same); or (C) the prevention of fraudulent traffic in relation to Client advertising.  However, no liability shall attach to Agency in respect of any losses suffered by Client or by any third party by reason of: (a) the reliance of Client on any estimates or targets; (b) any Objectionable Display of Client Advertising; or (c) fraudulent traffic in relation to Client advertising.

As part of Agency’s commitment to maximising media value for Client, Agency will pursue compensation complaints for such issues as reproduction and positional problems. However, Agency can give no guarantee as to the outcome of such negotiations and Client must pay in full and by the due date for bookings made regardless of any subsequent compensation achieved.

FINANCIAL PROVISIONS

In consideration of providing the Services, Client shall pay to Agency the Charges in accordance with each Authorising Document.

Amounts stated are exclusive of applicable tax, which shall be payable by Client in addition to the relevant amounts at the prevailing rate.

The Charges shall be invoiced by Agency and payable by Client in accordance with the applicable Authorising Document, in full, without set-off, counterclaim or withholding, by bank transfer into the bank account nominated by Agency in the currency specified in the invoice.

Unless otherwise specified in an Authorising Document, Agency shall be entitled to issue its invoices on an ad hoc basis and invoices will be payable within 30 days of the date of the invoice. All sums paid late shall, without prejudice to Agency’s other rights and remedies, be subject to interest at the rate of 2% per annum above the base lending rate of Agency’s principal lending bank from the due date until the date of payment in full.

For some aspects of the Services that are provided by third parties, those third parties may require an advance or down-payment. Under such circumstances, Agency will inform Client, and an invoice covering the advance or down-payment will be prepared and sent by Agency to Client for immediate settlement.

Unless otherwise specified in an Authorising Document, on each anniversary of the Start Date the Fees will adjusted in accordance with the consumer price index (CPI) average for the preceeding twelve months in the relevant Territory.

Unless otherwise specified, all out-of-pocket expenses incurred by Agency in pursuance of the fulfilment of the Services shall be charged to Client, subject to Client's prior approval of the applicable amounts, including without limitation: (a) research work; (b) any costs incurred for production work required in connection with the Services including, without limitation, film production, artwork, engravings, electros, photography, talent fees, recordings (including for test purposes), the services of performers, block-making, type-setting, typography and print work; (c) travel costs; (d) long-distance telephone calls; (e) production costs involved in the preparation of packaging, labels and cartons, exhibition and display Material, booklets, sales letters, product publicity and other promotional Material or services as may be prepared or suggested by Agency; (f) costs incurred in taking legal or other advice and undertaking trade mark, domain name or other searches, enquiries, registrations, renewals and clearances; and (g) despatch and carrier costs.

Where a surcharge is levied by a supplier against Agency due to late payment and this results from late payment by Client, Client shall (without prejudice to Agency’s other rights and remedies) immediately upon presentation of an invoice reimburse to Agency the amount of such surcharge, together with any accrued interest charged by the supplier in respect of the overdue amount.

The cost to Agency of goods or services purchased overseas in connection with the Services may be more or less than the cost anticipated at the date when Agency ordered the relevant goods or services as a result of fluctuations in the rate of currency exchange. If so, Agency will charge Client at the rate of currency exchange in operation on the date Agency invoices Client for the relevant goods or services and upon written request Agency will supply Client with such documentation as Client may reasonably require in order to verify such rate of currency exchange.

Client acknowledges that the Agency shall be entitled, at its own cost, to obtain insurance cover on the Charges incurred in connection with this Agreement. If: (a) the Client does not meet all of its payment obligations under this Agreement; or (b) insurance cover is unavailable or inadequate and the Client is unwilling or unable to provide advance payment or a form of security to the satisfaction of Agency, then the Agency will be entitled to: (i) cancel existing media bookings and/or other expenditure and the Client shall pay all associated Cancellation Charges; (ii) automatically suspend its obligations in relation to its provision of the Services, including the booking of media and committing to other expenditure under this Agreement; and/or (iii) terminate this Agreement by giving the Client at least 7 days’ written notice.

INTELLECTUAL PROPERTY RIGHTS

All Intellectual Property Rights in and to the Deliverables, other than Intellectual Property Rights in and to Agency Materials and Third Party Materials, will vest in Agency upon creation.  Such Intellectual Property Rights in and to the Deliverables shall be assigned by way of present assignment of present and future rights upon payment in full by Client of applicable Charges. To the extent that any applicable Charges remain outstanding, Agency grants to Client a revocable, worldwide and royalty free licence to Client to use the Deliverables in accordance with this Agreement and any reasonable direction of the Agency.

As between the parties, all Intellectual Property Rights in and to Client Materials shall remain vested in Client. Client hereby grants to Agency an irrevocable, worldwide, sub-licensable, non-exclusive and royalty-free licence to use the Client Materials to perform the Services in accordance with this Agreement. Client is solely responsible for all consents and licences required for the use of Client Materials in accordance with this Agreement and their compliance with applicable laws.

As between the parties, all Intellectual Property Rights in and to Agency Materials shall remain vested in Agency. To the extent that any of the Deliverables incorporate or embody Agency Materials, Agency grants to Client a worldwide royalty-free, non-transferable (save as permitted by this Agreement), non-exclusive licence to use such Agency Materials to facilitate and/or enable the use by Client of the applicable Deliverable(s) in accordance with this Agreement.

Agency shall, at Client's cost, use reasonable endeavours to obtain for Client all usage rights in Third Party Materials as agreed by the parties at the time such Material is commissioned. Save to the extent that the applicable Intellectual Property Rights in and to the Third Party Materials are assigned to Client, such Intellectual Property Rights shall remain vested in the applicable third party. Client is responsible for all other clearances. 

Agency shall use reasonable endeavours to obtain waivers of all moral rights in and to the Deliverables.

Client shall only use the Services and Deliverables in accordance with any usage restrictions and licence conditions specified by Agency or third party licensor. Save as otherwise expressly permitted by this Agreement or otherwise agreed in writing, Client shall not copy, reproduce, make derivative works of, reverse engineer, decompile or disassemble any Agency Materials or Third Party Materials or modify or remove any proprietary notices or legends placed on or within the Agency Materials or Third Party Materials.  If Client wishes to use the Deliverables outside of the relevant Territory, after the period of time or outside the purposes set out in the Authorising Document, then such use shall be subject to mutual agreement of further Charges by the parties.

Client hereby grants to Agency a perpetual, irrevocable, worldwide, sub-licensable, non-exclusive, and royalty-free licence to use the Deliverables for the purpose of promoting its own business (for example, but without limitation, on its corporate websites and in entering Materials for industry awards).  

Notwithstanding clause 7.2, to the extent that Client has ownership or rights over Agency Data or Results Data, Client hereby grants to Agency a perpetual, irrevocable, worldwide, sub-licensable, non-exclusive, and royalty-free licence (or sub-license, as the case may be) to use the Agency Data and Results Data to perform the Services in accordance with this Agreement and, provided use of Results Data is on an aggregated and anonymised basis, for any other purposes arising out of or in connection with the Agency's advertising services (including, but not limited to, business intelligence, marketing optimisation, and trend analysis).

WARRANTIES

Save as expressly set out in this Agreement and to the extent permitted by applicable laws, all conditions, warranties or other terms on the part of Agency which might have effect between the parties or be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are hereby excluded by Agency, including the implied conditions, warranties or other terms as to satisfactory quality or fitness for purpose.

Agency will not be liable for delays or errors in any of the Deliverables as published: (i) unless and to the extent that this is caused by its breach of this Agreement; or (ii) if the Deliverables have been approved by Client.

Agency warrants that the use of Agency Materials in accordance with this Agreement shall not infringe the Intellectual Property Rights of any other person.

Save as expressly agreed otherwise under this Agreement or in writing, Agency makes no warranty and is not responsible for any third party content (including without limitation user-generated content or Material) published on or in platforms, services or channels operated by or on behalf of Client. Without limitation, Agency is not responsible for: (a) the accuracy of such content; (b) the compliance of such content with applicable laws, regulations, guidelines or codes of practice or Client's policies or requirements; (c) reporting any matters which by virtue of applicable laws are required to be reported to authorities; or (d) any third party claim in relation to such content, including without limitation a claim that such content infringes third party rights, including without limitation intellectual property, data protection and privacy rights, or a claim that such content is defamatory, libellous, slanderous or seditious.

Agency makes no warranty and is not responsible for any Materials once such Materials are released or posted in the public domain as requested or approved by Client, including, without limitation, via seeding Materials on social media (being any digital platform which allows individuals or businesses to post content for viewing by others) and/or video sharing websites or the use of internet-based “widgets".

Client warrants that:

Client Materials and all other information supplied to Agency by or on behalf of Client in relation to Client’s products and services before and during the Term will be true, accurate, complete, up-to-date and not misleading or deceptive;

Client Materials and the use of such Client Materials in accordance with this Agreement shall comply with applicable laws, regulations, guidelines or codes of practice and shall not infringe the Intellectual Property Rights of any other person;

it has obtained all necessary rights, licences and consents to allow the Agency to use the Client Materials in accordance with this Agreement;  

it has in place suitable and compatible equipment, networks and software to receive the Deliverables and the Services;

Client Materials and any equipment or networks which connect to Agency’s systems do not contain software viruses or any other computer code, files or programmes designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; and

with regards to any website or application created or maintained by or on behalf of Client in relation to this Agreement, such website or application shall comply with applicable laws, and shall include a privacy policy that complies with applicable privacy and data protection legislation.

Without prejudice to Client's responsibility and Agency's other rights and remedies, Agency is entitled to refuse to perform Client's request if, in Agency's opinion, such action may result in violation of any applicable laws, regulation, guideline or code of practice.

INDEMNITIES

Agency shall indemnify and hold harmless Client from and against any and all costs, expenses, charges, damages, liabilities, claims or actions of any kind which may be incurred, suffered, brought or threatened against Client arising out of (and only to the extent of) a breach by Agency of clause 8.3. 

Client shall indemnify and hold harmless Agency from and against any and all costs, expenses, charges, damages, liabilities, claims or actions of any kind which may be incurred, suffered, brought or threatened against Agency arising out of (and only to the extent of) a breach by Client of clauses 7.6, 8.6 and/or (where Client is the Data Supplier) clause 15.

The party entitled to an indemnity under this Agreement shall take all reasonable steps to mitigate the applicable costs, expenses, charges, damages, liabilities, claims or actions.

TERM AND TERMINATION

The Term of this Agreement comes into effect on the date the Client instructs the Agency to provide Services and continues until the Services have been provided in accordance with the Authorising Document, unless otherwise agreed by the parties in writing.

Either party may terminate this Agreement immediately on written notice to the other party if the other party breaches any material provision of the Agreement (including clauses 6.4 or 16) and (where such breach is capable of remedy) does not remedy that breach within thirty (30) days of being required to do so in writing.

Either party may terminate this Agreement immediately on written notice to the other party if the other party has a receiver, administrative receiver, administrator, liquidator or provisional liquidator appointed over all or any part of its assets (or their respective equivalents in any other jurisdiction).

Except as otherwise permitted by this Agreement, upon termination of this Agreement:

Agency shall: (i) cease all use of and access to the Client Data; and (ii) promptly destroy all Client Data and copies of Client Data; and

Client shall: (i) cease all use of and access to Agency Data; and (ii) promptly destroy all Agency Data and copies of Agency Data,

except for copies retained through ordinary backup measures and as required by law.

LIABILITY

Nothing in this Agreement seeks to limit or exclude liability for death or personal injury caused by negligence, for fraud or for any other type of liability that cannot be limited or excluded under applicable laws.

To the maximum extent permitted by law, neither party shall be liable to the other for any:

loss of actual or anticipated income;

loss of actual or anticipated profits;

loss of contracts; or

special, indirect or consequential loss or damage of any kind,

howsoever arising in connection with this Agreement, whether in contract, tort (including negligence), breach of statutory duty, breach of data privacy laws (including without limitation the Privacy Act) or otherwise, and including under the indemnity obligations under this Agreement.  The liability of a party in connection with this Agreement will be reduced to the extent that it is caused by a breach or default under this Agreement by the other party.

Save in relation to the confidentiality obligations under clause 14, to the maximum extent permitted by law, the maximum aggregate liability of Agency to Client under or in connection with this Agreement, whether in contract, tort (including negligence) breach of statutory duty, breach of data privacy laws (including without limitation the Privacy Act) or otherwise (including under the indemnity obligations under this Agreement), shall not exceed an amount equal to 100% of the Fees (excluding, for the avoidance of doubt, any third party expenditure paid or payable by Agency pursuant to this Agreement) paid or payable by Client under this Agreement to Agency in the Territory during the 12 months immediately preceding the relevant claim.

NON-SOLICITATION

Client agrees that it will not either on its own account or in partnership or association with any person, firm, company or organisation or otherwise and whether directly or indirectly during the Term and for a period of twelve months thereafter solicit or entice away or attempt to solicit or entice away (or authorise the taking of any such action by any other person) any employee of Agency who has been engaged on the performance or receipt of the Services.

ASSIGNMENT AND SUB-CONTRACTING

Agency may: (a) sub-contract any or all of its obligations under this Agreement provided that Agency shall remain at all times liable for the performance of this Agreement; and (b) assign, sublicense or otherwise transfer any or all of its rights or obligations under this Agreement to any Agency Affiliate.

Save as set out in clause 13.1, no assignment, subcontracting or sublicensing is permitted.

CONFIDENTIALITY

Each party undertakes that it will keep confidential and not at any time hereafter use or disclose to any person, except: (i) to its professional representatives and advisors; (ii) in the case of Agency only, to its Agency Affiliates, sub-licensees or sub-contractors (including, without limitation, business process outsourcing services providers); or (iii) as may be required by law or any legal or regulatory authority, the terms and conditions or existence of this Agreement or any trade secrets, business ideas, market opinions, media rates, information and/or Material concerning the business or affairs of the other party (or any other information of a confidential nature which is designated as such by such other party) which may have or may in the future come to its knowledge (“Confidential Information”). 

Neither party shall use Confidential Information except for the performance of or as licensed under this Agreement or make any announcement relating to this Agreement or its subject matter without the prior written approval of the other party.

Except as otherwise permitted by this Agreement, no Intellectual Property Rights are marked, implied or granted as Confidential Information.

These confidentiality obligations shall not apply to any Confidential Information that: (i) is or becomes part of the public domain through no fault of the receiving party; (ii) can be shown by the receiving party to the disclosing party's reasonable satisfaction to have been known to the receiving party prior to the disclosure by the disclosing party without any obligation to keep such Confidential Information confidential; (iii) is required by law or any governmental or other regulatory authority to be disclosed or by the order of a court of competent jurisdiction; or (iv) is independently developed by the receiving party without any breach of this Agreement as evidenced by written records.

DATA PROTECTION

To the extent that one party ("Data Supplier") passes to the other party ("Data Receiver") any Personal Information (as defined in the Privacy Act) pursuant to this Agreement:

The Data Supplier represents and warrants that:

it has notified the individuals of the circumstances and purposes of collection or has obtained such permissions and consents required to enable both parties to use, disclose or transfer such Personal Information (including disclosure and transfers to third parties as required to provide the Services and transfers to territories outside of the Territory) in connection with the Services and any other purposes as stipulated in this Agreement; and

if the Data Supplier receives any requests as described in 15.2(c) below which may be relevant to the Data Receiver, it shall notify the Data Receiver of any such requests in a timely manner.

The Data Receiver agrees that it shall:

process the Personal Information in accordance with Data Supplier’s reasonable instructions;

provide reasonable assistance to Data Supplier to respond to a data subject's request to correct an error or omission in Personal Information or to withdraw consent to the collection, use or disclosure of Personal Information under this Agreement;

provide reasonable assistance to Data Supplier to respond to an access request submitted by a data subject (whether received directly or indirectly through Data Supplier) in accordance with the Privacy Act; and

take all appropriate steps to implement and maintain reasonable security arrangements for the protection of Personal Information in accordance with the Privacy Act.

The Client represents and warrants that it will not merge or match the Deliverables with the Client’s Personal Information in an attempt to de-anonymize or re-identify individuals.

ANTI-BRIBERY

Each party warrants and undertakes that:

it will comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption including but not limited to the UK Bribery Act 2010 ("Relevant Requirements"); and

it has and shall maintain in place throughout the Term all policies and procedures necessary to ensure compliance with the Relevant Requirements.

GENERAL

Unless for sponsorship, partnership, promotional services, Associated Creative Services or as otherwise agreed by the parties, Agency acts in all its contracts as a principal and not as agent for Client in respect of dealings with Media Owners and other third party suppliers (“Suppliers”) and shall place orders and enter into contracts with the Suppliers in its own name and on its own account. In the event Agency acts as agent for an agreed service then Agency shall place orders with Media Owners, rights owners and other relevant third parties in the name and on behalf of Client and Client shall execute such other agreements and other documentation as Agency may reasonably require to give effect to such appointment. In the event that Agency acts as principal for payment or incurs costs in relation to affiliate network operators on behalf of Client then Client will reimburse Agency for all amounts properly incurred by Agency. Nothing in this Agreement is intended to or shall operate to create a partnership or relationship of principal and agent between the parties.

The service of proceedings, and any notice of termination, given under or in connection with this Agreement shall be in writing (excluding email) and served by hand, prepaid first class recorded delivery or prepaid international recorded airmail to the other party’s address. Such notice shall be deemed to have been served at the time of delivery. All other communications (including in relation to approvals) under this Agreement may be given via email and shall be deemed received upon sending, save in the case of manifest technical error.

Neither party shall be liable for any failure to perform or delay in performance of any of its obligations under this Agreement (other than payment obligations) caused by circumstances beyond its reasonable control (“Force Majeure Event”). The affected party shall use all reasonable endeavours to mitigate the effect of the Force Majeure Event.

No provision of this Agreement (or any document entered into in connection with this Agreement) shall be modified or varied without the written consent of the parties. 

No delay, failure or omission (in whole or in part) in exercising or pursuing any right or remedy under this Agreement will be construed as a waiver of that right or remedy.

The provisions of clauses 2 (Interpretations and Definitions), 7 (Intellectual Property Rights), 8 (Warranties), 9 (Indemnities), 11 (Liability), 12 (Non-Solicitation), 14 (Confidentiality), 15 (Data Protection), 16 (Anti-Bribery) and 17 (General) shall survive termination or expiry of this Agreement

This Agreement may be signed in counterparts and by the parties on separate counterparts, each of which when so executed shall be an original, but all counterparts shall together constitute one and the same document.  The parties agree that this Agreement may be signed electronically.

A person who is not a party to this Agreement has no right to rely upon or enforce any term of this Agreement.

This Agreement constitutes the entire agreement and understanding of the parties relating to the subject matter of this Agreement and supersedes, in relation to such subject matter: (i) any previous agreement or understanding between the parties; and (ii) any terms and conditions contained in a party’s purchase order or invoice.  In entering into this Agreement, the parties have not relied on any statement, representation, warranty, understanding, undertaking, promise or assurance of any person other than as expressly set out in this Agreement.  Each party irrevocably and unconditionally waives all claims, rights and remedies which but for this clause it might otherwise have had in relation to any of the foregoing.

If any provision of this Agreement is found to be invalid or unenforceable then such invalidity or unenforceability shall not affect the other provisions of this Agreement, which will remain in full force and effect.

This Agreement (and any and all disputes arising out of or in connection with this Agreement (including without limitation any alleged breach, or challenge to the validity or enforceability, of this Agreement or any provision hereof)) shall be subject to the laws of New Zealand.

Any and all disputes arising out of or in connection with this Agreement shall be finally settled by binding arbitration under the rules recommended by the President of the New Zealand Law Society (“Rules”) (which Rules are deemed to be incorporated by reference into this Agreement) by one arbitrator, appointed in accordance with the Rules. The arbitration shall take place in Auckland and the language of the arbitration shall be English. This clause shall not prevent Agency from taking action against Client through any court of competent jurisdiction in relation to: (a) the non-payment or late payment of Fees or other amounts payable to Agency; or (b) interim or injunctive relief.